text:
    RED BALL MOTOR FREIGHT, INC., Appellant, v. C. Webb DEAN d/b/a Dean’s Hardware & Appliance Co., Appellee.
    No. 1003.
    Court of Civil Appeals of Texas, Tyler.
    March 17, 1977.
    Rehearing Denied April 7, 1977.

      John E. Sharp, Sharp, Ward &" Ross, Longview, for appellant.
    Thomas R. McLeroy, Jr., Center, for ap-pellee.
   McKAY, Justice.

This is a common carrier case. Plaintiff-appellee, C. Webb Dean, doing business as Dean’s Hardware and Appliance Company (Dean) brought this suit against Red Ball Motor Freight, Inc. (Red Ball), defendant-appellant, for alleged damage to a television set delivered to Dean by Red Ball on July 16, 1973. Trial was before the court and on June 23, 1976, judgment was rendered for Dean in the amount of $240.06 together with $50.00 attorney’s fees and all costs of court. Red Ball filed a Motion for New Trial on June 29, 1976. Thereafter, the trial judge made and filed Findings of Fact and Conclusions of Law pursuant to a request filed by Red Ball. Red Ball duly perfected its appeal.

The facts appear to be as follows: During the early part of July, 1973, Dean ordered from General Electric Corporation, among other items, the television set in question. The set, invoiced by General Electric Corporation to Dean on July 13, 1973, was subsequently shipped from National Stock Yards, Illinois, via East. Texas Motor Freight and Red Ball and received by Dean on July 16, 1973. Red Ball, upon receipt of the set, issued a freight bill therefor without exception to the condition of the set or the carton it was packed in. Upon receipt of the shipment, Rodney Dean, son of appellee, signed the freight bill without noting any damage to the television set or the carton it was shipped in. The television set was stored in its carton on Dean’s premises from the date of its receipt in July until sometime in December, 1973. At that time, Dean opened the carton containing the television set and discovered that it was damaged. After requesting certain Red Ball drivers to assist him in obtaining redress for the damages and failing to obtain such, Dean notified Red Ball of his claim by letter dated March 22, 1974. Later, on April 16, 1974, Red Ball sent its inspector to survey the damage to the set. The inspector’s report indicated “conceded damage [sic] MB 9152 MB Color T.Y., cabinet busted [sic] glass around picture tube broken,” and that the total amount claimed was $466.00. On April 18,1974, Dean mailed Red Ball’s standard damage claim form to Red Ball in Dallas, Texas, which claim was denied by Red Ball because of dilatory filing. Thereafter, Dean brought this suit.

Red Ball brings four points of error, which essentially complain that the trial court erred in rendering judgment for Dean because there is no evidence to support the court’s findings of fact 1, 2, 3 and 6.

The findings complained of are as follows:

“1. On or about July 13, 1973, Red Ball Motor Freight, Inc., Defendant herein, received one Model MB-9152-M.P. General Electric 25 inch color television set, Serial # LIP-07628, for shipment to C. Webb, Dean,, d/b/a Dean’s Hardware & Appliance Co., Plaintiff herein.
“2. Defendant received said television set in good condition.
“3. On July 16th, 1973, said Defendant delivered said television set to Plaintiff in damaged condition.
“6. Plaintiff timely presented his claim for such damages to Defendant but, at the expiration of thirty days thereafter, the claim was not paid or satisfied.”

It is well settled that when considering a no evidence point the reviewing court must view the evidence in support of the finding in its most favorable light, considering only the evidence and reasonable inferences to be drawn therefrom which support the finding and rejecting the evidence and inferences contrary to such finding. Miller v. Riata Cadillac Co., 517 S.W.2d 773, 777 (Tex.1975); Transport Ins. Co. v. Mabra, 487 S.W.2d 704, 707 (Tex.1972); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The authorities hold that in order to make a prima facie case of liability against a common carrier it is necessary to show that the property shipped was in good condition when delivered to the carrier, that the property was in a damaged condition when received by the consignee from the delivering carrier, and the amount of the damages. Missouri Pacific Railroad Co. v. Elmore & Stahl, 368 S.W.2d 99, 101 (Tex.1963), affirmed 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194 (1964); Strickland Transportation Co. v. International Aerial Mapping Co., Inc., 423 S.W.2d 676, 677 (Tex.Civ.App.—San Antonio 1968, no writ).

Admissions made by parties to a suit in response to requests for admissions under Rule 169, T.R.C.P., and filed among the papers in the case need not be introduced in evidence to be properly before the trial court and this court for our consideration. McCollum v. Red River Valley Publishing Co., 352 S.W.2d 144, 146 (Tex.Civ.App.—Amarillo 1961, writ ref’d n.r.e.); Rule 169, T.R.C.P.

“Moreover, the trier of facts is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded if the record discloses any evidence of probative value which, with inferences that may be properly drawn, will reasonably support the same.” Red Arrow Freight Lines, Inc. v. Howe, 480 S.W.2d 281, 285 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n.r.e.).

With the above rules in mind we will examine the record with respect to Red Ball’s no evidence points. Red Ball, in its point one, asserts that there is no evidence to support finding of fact 1. In answer to Dean’s request for admissions Red Ball denied that it undertook the carriage of the above described television set “by reason of a lack of sufficient evidence to justify a belief,” and denied the set was received by Red Ball in Houston in good condition for the same reason. However, Red Ball admitted that “the container in which the television set above mentioned was packaged was in good condition and without visible defects or damage when received for shipment to Plaintiff in Houston, Texas, by Defendant, Red Ball Motor Freight, Inc.” It appears that by the quoted admission Red Ball did in fact receive the described television set by admitting it received the container in which it was packaged. Point one is overruled.

Point two complains that there is no evidence to support finding 2, and point three contends that there is no evidence to support finding 3. Red Ball admitted that the container in which the television set was packaged was in good condition and without visible defects or damage when received by Red Ball. Such an admission, like a recital in a bill of lading to the same effect, relates only to the condition of the outside of the shipping carton, and, of itself, does not establish the good condition of the contents of the carton; nor is such admission, standing alone, evidence as to the actual condition of the goods packed in the sealed container. Red Arrow Freight Lines v. Howe, supra, p. 285; Strickland Transportation Co. v. International Aerial Mapping Co., supra, p. 678; Matthews-Carr v. Brown Exp., 217 S.W.2d 75, 77 (Tex.Civ.App.—El Paso 1948, no writ).

There is authority, however, that where the carton or container is in good condition without any visible damage when it was received by the carrier, and the goods shipped were damaged when received by the shipper, a prima facie case is made. Red Arrow Freight Lines, v. Howe, supra, p. 285; Roadway Express, Inc. v. Naturalite, Inc., 435 S.W.2d 555, 558 (Tex.Civ.App.—Eastland 1969, no writ); Yeckes-Eichenbaum, Inc. v. Texas Mexican Railway Co., 263 F.2d 791 (5th Cir. 1959) cert. denied 361 U.S. 827, 80 S.Ct. 75, 4 L.Ed. 70; 13 C.J.S. Carriers § 254d, p. 538.

The record reveals that no damage to the carton was detected or noted when delivery was made to Dean, and the carton was not opened for approximately five months after delivery at which time the damage to the television set was discovered. The trial court finding that the television set was damaged when delivered to Dean by Red Ball may not be disturbed on appeal if there is probative evidence to support it. Under the record presented here we must presume, in support of the judgment, that the trial court impliedly found that the television set was in damaged condition when it was delivered as it was found to be when the carton was opened five months later. Rule 299, T.R.C.P.; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 694 (1944), cert. denied 325 U.S. 862, 65 S.Ct. 1196, 89 L.Ed. 1983; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1944); Electro-Hydraulics Corp. v. Special Equipment Engineers, Inc., 411 S.W.2d 382, 387 (Tex.Civ.App.—Waco 1967, writ ref’d n.r.e.).

Appellee Dean testified as follows:

“Q. Oh, all right. So between the time that you opened the carton and the time the television set was delivered to you it set in your — set in your warehouse room?
“A. Yes, sir.
“Q. And it just set there in your warehouse there?
“A. Yes, sir.
“Q. And did anything occur from the time the television set was delivered and the time you discovered the damage?
“A. Not really.
“Q. That could cause any of these—
“A. No, it never wasn’t moved from when they unloaded it to there, (sic)
“Q. You mean it just sat there and it never was even touched?
“A. Yes, sir. From when they unloaded it.”

The quoted testimony indicates that the packaged television set remained unmoved and untouched from the time of its delivery to Dean until the package was opened and the damage discovered. While Dean also testified he had no knowledge of the condition of the set until he uncrated it some five months after it was received, there was some evidence, be it circumstantial or inferential, that the set was damaged when it was delivered to Dean. We cannot say that the trial court erroneously inferred or presumed facts or made deductions unreasonably. We may, in passing on no evidence points, consider only the evidence and inferences therefrom which support the judgment, and we must disregard all evidence and inferences to the contrary. Points two and three are overruled.

Red Ball complains in point six that there is no evidence to support finding 6. We are of the opinion, in examining the entire record, that this point is without merit and the same is overruled.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    James Lavon WHITLOW, Appellant, v. Edgar MIMS et ux., Appellees.
    No. 17815.
    Court of Civil Appeals of Texas, Fort Worth.
    March 18, 1977.
    Richard E. Johnton, Fort Worth, for Edgar and Shirley Mims.
    Wayne E. Roberts, Fort Worth, for Shirley Whitlow.
   OPINION

MASSEY, Chief Justice.

The appeal is by the natural father of minor children. The physical custody of these children was awarded to intervening maternal grandparents as a part of the decree which divorced the children’s natural parents.

The new and novel question presented upon appeal is the propriety for reversal solely because the trial court’s judgment awarded custody of the children to their grandparents jointly, rather than to one of them individually.

The question is upon the trial court’s authority, not upon the matter of its abuse of discretion. No statement of facts was brought forward upon the appeal, and none being before this appellate court, the legal presumption obtains that the court’s action was justified by the evidence. In such circumstances it is impossible, absent any Finding of Facts, for an appellant to sustain a complaint of abuse of discretion.

The children’s father predicates his complaint of error by the award of custody, jointly, upon certain provisions of law which he contends to forbid by necessary implication, to-wit: Vernon’s Texas Codes Annotated, Texas Family Code, Sec. 14.01, “Court Appointment of Managing Conservator”. Thereunder one given physical custody of a minor child is termed the “managing conservator,” ever referred to in the singular. The contention is that the trial court has the power to name one individual as “managing conservator,” but not two.

Several cases are to be noticed among the annotations where physical custody of minor children had been awarded to two individuals, jointly. Apparently there has not heretofore been a complaint like unto that in the instant case made a point of error.

To bolster the contention on appeal reference has been made, for purposes of persuasion, to provisions to be found in other sections of the Family Code, viz: Sec. 14.-03(a); Sec. 11.01(6); Sec. 11.08(b), Subs. (5), (6) and (7); Sec. 11.09; and Sec. 14.02. Reference is also made to the Texas Probate Code, Sec. 116, “Only One Person to Be Appointed Guardian”, in which there is prohibition for appointment of more than one person to be guardian of the person of a person.

There is no statutory provision relative to prohibition for appointment of more than one person to have physical custody of a child, i. e., as “managing conservators”. Abuse of discretion in so doing is conceivable, but in this case such question is eliminated because there is no statement of facts.

There having been no provision law which prohibited such there was no error in the judgment which awarded physical custody of the two minor children to the grandparents, jointly.

Each point of error has been severally considered. All of them are overruled.

Judgment is affirmed.


author: AKIN, Justice.

text:
    Billy M. STARNES, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 19103.
    Court of Civil Appeals of Texas, Dallas.
    March 22, 1977.
    John E. Collins, McGuire, Levy, Collins & McCurley, Irving, for appellant.
    Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellee.
   AKIN, Justice.

This is a workmen’s compensation case. Billy Starnes alleges that he suffered two injuries while employed by the Oil well Division of U. S. Steel. The first was a back injury in January 1969. The second was a repetitious trauma occurring in January-March 1973. A claim for the back injury was filed with the Industrial Accident Board. The Board’s award was appealed to a district court which, at a hearing on September 5, 1974, approved a settlement agreement which, by its terms, covered both claims. Six days after the settlement was approved, Starnes filed a claim for repetitious trauma with the Industrial Accident Board. The Board granted Starnes an award on the second claim, and TEIA appealed to the district court which granted the summary judgment that is the subject of this appeal. Because we hold that this claim for repetitious trauma is not barred by the written settlement agreement approved by the district court in connection with the prior back injury claim, we reverse and remand for trial on the merits.

Under Tex.Rev.Civ.Stat.Ann. art. 8307 § 12 (Vernon 1967), a claimant cannot settle his claim by accepting a payment of money and signing a common-law release. To be binding, a compromise settlement agreement must be approved by the Industrial Accident Board or by the court after its jurisdiction has been invoked to set aside the Board’s award.

A court’s jurisdiction over workmen’s compensation claims is limited to appeals from claims which have been passed on by the Board; courts have no original jurisdiction to make awards. Solomon v. Massachusetts Bonding and Ins. Co., 347 S.W.2d 17, 19 (Tex.Civ.App.—San Antonio 1961, writ ref’d); Johnson v. American General Ins. Co., 464 S.W.2d 83, 84 (Tex.1971). The fact that the settlement agreement was approved by the district court is immaterial since that court lacked jurisdiction of the repetitious trauma claim and, therefore, insofar as its judgment approved a settlement of the second claim, it was void. Employers’ Indemnity Corp. v. Woods, 243 S.W. 1085, 1089 (Tex.Com.App.1922, jdgmt. adopted); Brown v. Texas Employers’ Ins. Ass’n, 276 S.W.2d 314, 316 (Tex.Civ.App.—Fort Worth 1955, writ ref’d n. r. e.).

Reversed and remanded.


text:
    Leta B. MOORE, Individually and as Independent Executrix of the Estate of William Neal Moore, Deceased, Appellant, v. INDUSTRIAL LIFE INSURANCE COMPANY, Appellee.
    No. 19153.
    Court of Civil Appeals of Texas, Dallas.
    March 22, 1977.
    Rehearing Denied April 14, 1977.

      G. Lee Hart, Dallas, for appellant.
    Gary C. Crapster, Rowland B. Foster, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   AKIN, Justice.

Appellant Leta Moore, individually and as independent executrix of the estate of Wiliam Moore, sued appellee, Industrial Life Insurance Company, on a credit life insurance policy. Trial was to the court on stipulated facts, and judgment was rendered for the insurance company. We affirm.

William Moore obtained a $4,758 loan from the First National Bank of Grapevine on July 2, 1975, which loan was due on September 1, 1975. In connection with this loan, he took out a credit life insurance policy in the amount of the loan for a term of two months, effective July 2. Mr. Moore died on September 2, 1975, without having repaid the loan. Since the estate paid the loan, it is the proper beneficiary under the insurance contract.

The sole question presented by this appeal is when did the policy expire? The parties agree that the term “month” as used in the contract refers to a calendar month. The general rule is that a calendar month “runs from a given day in one month to a day of the corresponding number in the next or specified succeeding month.” Pitcock v. Johns, 326 S.W.2d 563, 565 (Tex.Civ.App.—Austin 1959, writ ref’d). Appellant relies on the rule that when time is to be computed from or after a certain day, the designated day is to be excluded and the last day of the period is to be included unless a contrary intent is clearly manifested by the contract. Home Insurance Co. v. Rose, 152 Tex. 222, 255 S.W.2d 861, 862 (1953). Thus, the inclusion of the day of the corresponding number in the final month is predicated on the exclusion of the day of that number in the initial month; one or the other must be excluded. Hutson v. Sadler, 501 S.W.2d 728, 731 (Tex.Civ.App.Tyler 1973, no writ). The insurance contract here specifically states that it was effective on July 2, the first day. In Acme Life Ins. Co. v. White, 99 S.W.2d 1059, 1060 (Tex.Civ.App.—Eastland 1936, writ dism’d w. o. j.), the court held that since the contract was, by its clear terms, effective on January 17, 1933, then recovery was not barred by a two-year suicide exclusion clause where the suicide occurred on January 17, 1935. Since the initial day was included, the anniversary date was excluded and, therefore, not within the first two policy years. In its opinion in Home Insurance Co. v. Rose, the supreme court distinguished Acme Life Insurance Co. v. White on this basis. Since the contract here clearly included coverage on July 2, coverage must be, therefore, excluded on September 2. Otherwise, appellant would receive insurance coverage for two months and a day, not two months as contracted for by the parties. See Ratcliff v. Louisiana Industrial Life Ins. Co., 185 La. 557, 169 So. 572, 573 (1936).

Affirmed.


author: OSBORN, Justice. WARD, Justice,

text:
    Nora Lee BURTON and Arlene Schultz, Appellants, v. Woodrow W. BEAN, II and Ward L. Koehler, Co-Administrators of the Estate of Veatrice Ulmer McGuffey, Deceased, Appellees.
    No. 6580.
    Court of Civil Appeals of Texas, El Paso.
    March 23, 1977.

      Ramon (Ray) Ramos, Jr., El Paso, for appellants.
    Woodrow W. Bean, II, Ward L. Koehler, El Paso, for appellees.
   OPINION

OSBORN, Justice.

This is an appeal from an order of the County Court, in probate, approving fees for Co-Administrators in a final account. We affirm.

By two points of error, two of the three heirs involved in an administration contend that the claim for fees of Co-Administrators was not properly itemized, and that the order approving the claims provided compensation to the Co-Administrators in excess of that provided by Section 241(a). Following the death of Veatrice Ulmer McGuffey on February 28, 1974, her daughter, Nora Lee Ekola (now Nora Lee Burton), employed Woodrow W. Bean, II, to file an application for temporary administration on her estate. At the same time, her other two daughters, Bertha Maudelle Elliott, who is not an Appellant, and Arlene Schultz, who is an Appellant, employed Ward L. Koehler to also file an application for temporary administration. Subsequently, all three heirs renounced their rights to represent the estate in favor of their respective attorneys, who were appointed Co-Administrators. They were appointed, qualified, and served in such capacity, and in their final accounting seek additional reimbursement for their services.

At the hearing on the final account, the undisputed evidence established that at the time the Co-Administrators were appointed, the heirs agreed and understood that they would also serve as attorneys for the estate and would be reasonably compensated for such services. On June 4, 1974, the Court entered an order approving an application to pay administration expenses, which included fees in the amount of $4,500.00 for Woodrow W. Bean, II, and $4,750.00 for Ward L. Koehler. The application had an attached exhibit which itemized the date and services rendered, and the application reflected the total hours involved in performing such services as had been rendered at that time.

On June 23, 1976, the Co-Administrators filed their final account, which included a request to pay additional administrator’s and attorney’s fees and expense to Woodrow W. Bean, II, in the sum of $2,400.00, and to Ward L. Koehler in the sum of $13,525.67. Again, there were exhibits attached which showed the services rendered, the date thereof, and the total hours involved. There is no showing of how much time was served in the capacity of Co-Administrator and how much as an attorney for the estate. Perhaps in many instances it would be a fine line to decide in which capacity the service was rendered.

Appellants contend that the Appel-lees are limited by the provisions of Section 241(a), and that a five percent commission on sums received and paid out in cash in this instance would be $6,600.00, an amount less than the compensation paid to the Co-Administrators prior to the final account, and that therefore they should receive no additional compensation. Of course, an administrator may receive reasonable compensation for his services if he (1) manages a farm, ranch, factory, or other business of the estate, or (2) if the compensation as calculated on the five percent commission is unreasonably low. In this case, there is neither proof nor a finding by the Court that either of those alternatives are applicable. Thus, if Appellees are limited solely to compensation provided for in Section 241(a), the order approving the final account is erroneous.

But, Section 242 provides that personal representatives of estates shall be entitled to all necessary and reasonable expenses incurred by them in the management of the estate, and all reasonable attorney’s fees necessarily incurred in connection with the proceedings and management of such estate. This necessarily raises the question of whether an attorney, as an administrator of an estate, may also perform the legal work and be compensated for his reasonable attorney’s fees. “The majority rule appears to be that in the absence of statute otherwise providing, an executor or administrator is not entitled to extra compensation for legal services rendered by him.” Annot., Right of executor or administrator to extra compensation for legal services rendered by him, 65 A.L.R.2d 809, 811 (1959). That annotation cites but one Texas case, Neblett v. Butler, 162 S.W.2d 458 (Tex.Civ.App.—Galveston 1942, writ ref’d w. o. m.). In that case, the Court pointed out the reason for the majority rule and concluded that on public policy, one in a position of trust should not place himself in a situation where his interest conflicts with his duty as a fiduciary. The Court, in considering this problem, said:

“In 11 R.C.L., p. 231, it is said: ‘It has been stated that if he (the executor) chooses to exercise his professional skill as a lawyer in the business of the estate, it must be considered a gratuity, and that to allow him to become his own client and charge for professional services, would be holding out inducements for professional men to seek such representative places to increase their professional business, which would lead to most pernicious results.’
“There is certainly very respectable authority for holding that executors cannot employ themselves to render legal services for the benefit of an estate.”

But, the Court went further in analyzing the problem and by way of dictum said:

“However, strictly speaking, a personal representative does not have authority to bind an estate for legal service. Art. 3691, Vernon’s Ann.Tex.Civ.Statutes, provides: ‘Executors * * * shall also be allowed all reasonable expenses necessarily incurred by them in the preservation * * * of the estate, and all reasonable attorney’s fees, that may be necessarily incurred by them in the course of the administration.’ A personal representative owes the duty to preserve the estate, and expenses which he incurs in the performance of such duties he may recover. A prudent executor will only agree to pay an attorney, whom he employs, reasonable attorney’s fees, for if the reasonableness of the fees is contested, the executor can only recover such as are reasonable. Whether an executor, who is a lawyer, performs the services himself, or employs another, the reasonableness of the fees charged must stand the same test. So what difference could it make whether a lawyer-executor employs another lawyer, or performs the services himself? A testator chooses his executor because he thinks him trustworthy, and we think it unlikely the testator would not want the lawyer, to whom he intrusted the management of his estate, to be intrusted with the management of the law business incident thereto. And as already pointed out, he does not have to trust him to fix a fee that is not exorbitant, the law prevents that. We therefore question the soundness of a public policy which would tend to defeat a testator’s desire to have his affairs, legal as well as business, attended to by his executor, by one he has learned to trust. * * * ”

The lead case in the above mentioned annotation is In re Thompson’s Estate, 50 Cal.2d 613, 328 P.2d 1 (1958). In that, case, suit was brought by an executor to recover an allowance of attorney’s fees in addition to an allowance of executor’s fees. ' The will under which the attorney served expressly provided that in the event he acted as executor and also as his own attorney, he should receive a fee in each capacity. The Court, in its opinion, noted the general rule which prohibits a fiduciary from making a profit by employing himself. But, it concluded, that the overall purpose of the probate law was to give full force and effect to the clear intention of the testatrix. The Court concluded that such intention should be carried out and said:

“ * * * By imposing her faith and trust in her designated executor and providing for his compensation, the purpose of the policy which might otherwise restrict self-dealing transactions can no longer be accomplished and the policy is no longer a controlling consideration. There is here the added safeguard of a statutory standard by which the services performed for the estate may be objectively evaluated.”

We believe the same reasoning should be followed in this case. The evidence is undisputed that these attorneys did not seek the appointment as Co-Administrators, but they did accept such appointment at the request of the probate judge to resolve a conflict between the parties. In addition, they accepted the appointment only with the understanding that they would be compensated for their legal services. In addition, there is the safeguard that their claim for services must be itemized and approved by the Court, and this was done only after satisfactory proof of the services and independent proof as to the reasonableness of the charges, in accordance with Section 242. Although the allowance seems high, the probate judge obviously was aware of all of the services rendered, and there is evidence to support the trial Court’s finding that the charges are reasonable.

By way of caution, it would seem to be the better practice, where an attorney is to serve in a dual capacity of a fiduciary and an attorney for the estate, to have the order of appointment expressly provide that such is done with the express consent of the heirs, if that be the case as here, and that reasonable attorney’s fees will be allowed in addition to the statutory administrator’s fees.

While we cannot determine the manner in which the total fees were allocated either as administrator’s fees or attorney’s fees, there was no effort made by the Appellants to determine during the contest how many hours were performed in the capacity of administrator and how many as an attorney for the estate. The claims filed by these two attorneys did list each task performed and the total hours of service, and there was no cross-examination or effort to show the failure to perform the task as itemized or that the amount of time spent on any particular task was excessive. Apparently, no attempt was made to have the Court allocate the fees to a particular capacity. The one who claims error bears the burden of showing such error to exist. That burden has not been met under the record before this Court. The evidence was sufficient for the Court to have approved the entire claim for attorney’s fees, although the Appellees admittedly were entitled to at least $6,600.00 for administrator’s fees.

Finding no reversible error, the two points of error are overruled and the judgment of the trial Court is affirmed.

WARD, Justice,

concurring.

I concur in the affirmance of the judgment of the trial Court, but, with the facts present before us, I would put the basis as Section 241(a), and that the Court thereunder was empowered to award the Co-Administrators a reasonable compensation for their services. The application by the Co-Administrators and the testimony, the entire hearing for that matter, was that they were entitled to more money than that allowed under the first sentence of Section 241(a) regarding the statutory percentage. The Appellants make no complaint as to the pleadings or to the lack of any finding in the Court’s order that there be a preliminary finding that the percentage method be “unreasonably low.” Such a presumed finding was made. The Appellants rely in the main on the earlier cases that required the establishment of an “exceptional case” before the administrator could receive additional compensation. Shirey v. Harris, 288 S.W.2d 315 (Tex.Civ.App.—Fort Worth 1956, no writ), and Dallas Joint-Stock Land Bank in Dallas v. Maxey, 112 S.W.2d 305 (Tex.Civ.App.—Dallas 1937, no writ). Those cases are no longer controlling, and, as pointed out in the interpretive commentary accompanying the statute, the Court is now afforded flexibility in fixing a reasonable compensation.

      . All Section references ai to the Texas Probate Code.


author: PHILLIPS, Chief Justice.

text:
    Edward W. PLODZIK, Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, Appellee.
    No. 12518.
    Court of Civil Appeals of Texas, Austin.
    March 23, 1977.

      Jay J. Madrid, David A. Miller, Matthews, Matthews, Sechrist & Madrid, Dallas, for appellant.
    Adrian M. Overstreet, Jr., Law Offices of Don L. Baker, Austin, for appellee.
   PHILLIPS, Chief Justice.

The question for decision is whether the trial court abused its discretion in striking appellant’s pleadings and granting ap-pellee default judgment where appellant had no notice of an order to compel answers on oral deposition (or have his pleadings stricken and default judgment entered against him), until such time as compliance therewith had passed.

We answer the question in the affirmative and reverse the judgment of the trial court and remand the cause for trial.

This suit was brought by appellee to recover for certain merchandise allegedly sold to Precision Insulation Company. Appellee brought the suit against appellant on a theory of guaranty, and later, on a theory of alter ego, alleging that appellant treated Precision Insulation as his alter ego incurring the debt herein, while Precision Insulation was insolvent without notice to appel-lee of insolvency, and further alleging appellant to have transferred Precision Insulation’s assets to himself without lawful consideration and without regard to the rights of creditors.

Appellee then deposed appellant, and, upon appellant’s refusal to answer certain questions, filed a motion to compel answers on oral deposition. The record indicates the hearing on appellee’s motion was on May 20, 1976. Neither appellant, nor his attorney, was present. Appellee’s motion was granted and an order was entered bearing the notation that it was signed on May 20th; however, the judgment recites the order to have been signed and entered on May 25th. The order required appellant to appear for a deposition on May 27, 1976, at 2:30 P.M. and to file a cost bond and pay attorney’s fees by noon on May 27th, or have his pleadings stricken and default judgment entered against him.

Counsel for appellee, in Austin, mailed the order to counsel for appellant, in Dallas, on May 25, 1976. Counsel for appellant received the order on May 27, after the time for compliance therewith had expired.

On May 28, a default judgment was granted appellee. On June 16, appellant’s amended motion for new trial was overruled, and on June 29, the court rendered a corrected judgment from which appellant has perfected this appeal.

We hold that appellant’s amended motion for new trial should have been granted, and in refusing to set aside the default judgment and grant a new trial, the trial court abused its discretion.

It is agreed that the trial court had the power to strike the pleadings and grant the default judgment under authority of Tex.R.Civ.P. 215a. This authority is subject, however, to an exercise of discretion. Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App. 1972, no writ); Hankins v. Haffa, 469 S.W.2d 733 (Tex.Civ.App. 1971, writ ref. n. r. e.), and Fisher v. Continental Illinois National Bank and Trust Co. of Chicago, 424 S.W.2d 664 (Tex.Civ.App. 1968, writ ref. n. r. e.).

In our judgment the time frame set out above in which the court granted the order precluded appellant from complying with the terms of the order.

We are aware that there is some authority, as appellee contends, that a party properly before the court, is chargeable with notice of all subsequent steps, including orders and judgments taken in the case, though the party does not in fact appear and has no actual notice thereof. Nevertheless, we hold that, except for compelling reasons, it is essential to the proper administration of justice that proper notice shall be given of steps proposed to be taken. Box v. Associates Investment Co., 352 S.W.2d 315 (Tex.Civ.App. 1961, no writ). Certainly, the court should have given appellant a reasonable time, after notice, in which to comply with an order that, if ignored or otherwise opposed, contained the seeds of such devastating consequences.

Punishment is not solely the purpose of discovery sanctions. Lloyd A. Fry Roofing Co. v. State, 524 S.W.2d 313 (Tex.Civ.App. 1975, writ ref. n. r. e.). The primary office of discovery sanctions is to secure compliance with the discovery rules. Ebel-ing v. Gawlik, supra. The purpose of Rule 215a is to prevent one from arbitrarily and wantonly absenting himself from giving evidence in aid of litigation.

Due to our disposition of this case, appel-lee’s motion to supplement the transcript by adding a statement of facts and appellant’s deposition taken on May 6, 1976, is overruled.

The judgment of the trial court is reversed and the cause is remanded for trial.

Reversed and Remanded.

      . Pentikis v. Texas Electric Service Company, 470 S.W.2d 387 (Tex.Civ.App. 1971, writ ref. n. r. e.), and cases cited therein.


author: McDONALD, Chief Justice.

text:
    Raymond WHITIS et al., Appellants, v. Mary P. WHITIS, Appellee.
    No. 5723.
    Court of Civil Appeals of Texas, Waco.
    March 24, 1977.

      David M. Stagner, Nance, Caston, Duncan, Green, Stagner, Fry & Pelley, Denison, Dean Martin, Sherman, for appellants.
    Pat Reed, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants from declaratory judgment that certain real estate (a house and lot in Sherman, Grayson County) is the sole and separate property of appellee.

Appellee Mary P. Whitis, surviving wife of William J. Whitis, deceased, sought declaratory judgment that a house and lot in Sherman was her sole and separate property, and that appellants, children of her deceased husband by prior marriage, had no interest in such property.

Trial before the court resulted in judgment decreeing appellee sole and separate owner of the property.

It is undisputed and stipulated. that:

Plaintiff and William J. Whitis married January 25, 1966; that on May 22, 1969 plaintiff and William J. Whitis purchased the property here involved; that William J. Whitis died intestate November 8,1969, and that plaintiff and William J. Whitis paid $16,000. for the property.

The trial court in Finding 7 found the $16,000. was paid $8,000. by plaintiff from her separate funds; and $8,000. by William J. Whitis from his separate funds; and in Finding 8 found that no community funds of plaintiff and William J. Whitis were used in the purchase of the property.

The trial court filed Conclusions of Law:

1) The property was purchased by plaintiff and William J. Whitis as “joint tenants with right of survivorship”, and
2) Upon death of William J. Whitis, full title and ownership of the property became absolute in plaintiff.

Appellants appeal on 11 points contending:

1) The trial court erred in allowing plaintiff to testify William J. Whitis used $8,000. of his separate money to purchase property here involved, because such testimony was in violation of Article 3716.
2) There is no evidence to support Finding 7 that $8,000. of plaintiff’s separate funds and $8,000. of William J. Whitis’ separate funds were used to purchase the property here involved; and/or such finding is against the great weight and preponderance of the evidence.
3) There is no evidence to support Finding 8 that no community funds of William J. Whitis and plaintiff were used to purchase the property here involved; and/or such finding is against the great weight and preponderance of the evidence.
4) Conclusion of Law 1 that title to the property was purchased by plaintiff and William J. Whitis as “joint tenants with right of survivorship” is error because the property was community, and it is violative of the Texas Constitution to hold community property as “joint tenants with right of survivorship” between husband and wife.
5) Conclusion of Law 2 that on the death of William J. Whitis full title and ownership of the property became absolute in plaintiff, is error, because the property was community and it is violative of the Texas Constitution to hold community property as “joint tenants with right of survivorship” between husband and wife.

There is in evidence a Warranty Deed to the property here involved whereby Jimmy N. Merchant and wife sold and conveyed such property to “William J. Whitis and wife Mary P. Whitis * * * as joint tenants, with rights of survivorship”. Such deed is dated and acknowledged on May 22, 1969.

Plaintiff testified without objection that the property cost $16,000.; that she used $8,000. of her separate funds to purchase a one-half interest in the property here involved. She was then permitted to testify, over objection that the testimony was viola-tive of Article 3716 (The Dead Man’s Statute), that her deceased husband William J. Whitis used $8,000. of his money received from the sale of his separate property house to purchase the property here involved; that her deceased husband sold mortgages owned by him to purchase a house on Travis Street; and that he used the proceeds of the sale of the house on Travis Street to pay the $8,000. on the house here involved.

Article 3716 prohibits parties testifying to transactions with, or statements by, a deceased person in actions by or against executors, administrators, heirs, guardians and legal representatives, in which actions judgment may be rendered for or against them as such, unless called to testify by the opposite party. It is the policy of the Supreme Court to strictly construe the language of such article and thus not extend its coverage by construction. Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291.

Article 3716 does not disqualify a witness from testifying to facts that such witness may know of her own knowledge. Taylor v. Jones, CCA, Dism’d. Jdmt. Cor., 135 S.W.2d 767; Wideman v. Coleman, Com.Appls., 17 S.W.2d 786; Chajkowski v. Clements, CCA, Er. Dism’d., 229 S.W.2d 633.

Plaintiff testified to matters she knew of her own knowledge and we think such testimony admissible and overrule Contention 1.

Plaintiff’s testimony being admissible, there is ample evidence to sustain the trial court’s Findings 7 and 8, and such findings are not against the great weight and preponderance of the evidence.

Findings 7 and 8 being sustained, Conclusions 1 and 2 are correct.

All appellant’s points and contentions are overruled.

AFFIRMED.


author: GUITTARD, Chief Justice.

text:
    David M. SHERER, Appellant, v. Herbert G. BENCH, Appellee.
    No. 19128.
    Court of Civil Appeals of Texas, Dallas.
    March 24, 1977.
    Robert A. McCulloch, Vial, Hamilton, Koch, Tubb, Know & Stradley, Dallas, for appellant.
    Russell W. Schell, Thompson, Coe, Cousins & Irons, Dallas, for appellee.
   GUITTARD, Chief Justice.

In this suit on a promissory note, summary judgment was rendered for plaintiff. Defendant appeals on the ground that the summary-judgment proof fails to establish that plaintiff is the owner and holder. We hold that the proof is lacking in this respect because, although a purported affidavit in support of the motion states that the original note is attached, the certificate by the notary is in the form of an acknowledgment rather than a jurat reciting that the affiant swore to the truth of the statements appearing above his signature, and the record does not otherwise show that the original note was produced.

Plaintiff concedes that the purported affidavit is insufficient under Perkins v. Crittenden, 462 S.W.2d 565, 567 (Tex.1970), but argues that in the absence of a sworn denial of execution, production of the original note rather than a copy raises a presumption that plaintiff is the owner and holder. In support of this argument, he asserts that the note was produced by attaching it to the motion for summary judgment.

We conclude that production of the note has not been established. We recognize that if an original note is attached to a proper identifying affidavit, the affidavit need not state that plaintiff is the owner and holder because these facts are then presumed. Texas National Corp. v. United Systems International, Inc., 493 S.W.2d 738, 741 (Tex.1973). In Texas National, the supreme court recommended that the original note be attached to the motion for summary judgment or to an affidavit, but this recommendation was made in the context of concern for the required proof that the plaintiff is the owner and holder. The court did not suggest that an original document may be considered in support of a motion for summary judgment without competent summary-judgment evidence identifying it. The court referred to its previous opinion in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1963), in which an original document was attached to a pleading and an affidavit stated that the document was executed by the parties and was incorporated by reference. This affidavit was held to be sufficient in the absence of an exception in the trial court. The opinion apparently assumes that in the absence of such an affidavit, the document would not have supported the summary judgment.

From these cases we conclude that production of a note establishes that plaintiff is the owner and holder, but that on motion for summary judgment, production must be established by competent summary-judgment proof. In order to qualify as summary-judgment proof, the evidence must comply with Tex.R.Civ.P. 166-A(c), which provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law [emphasis added].

Attachment of the note to the petition or to the motion would not support a summary judgment without an affidavit referring to and identifying it because pleadings are not competent summary-judgment proof in support of the pleader’s position. Hidalgo v. Surety Savings and Loan Ass’n, 462 S.W.2d 540, 543 (Tex.1971). Therefore, under Rule 166-A(c), a motion for summary judgment must be supported by summary-judgment proof in the form of depositions, answers to interrogatories, admissions, or affidavits. An original document must be identified by one of these means before it is competent summary-judgment proof. Filing the document in the papers of the cause does not suffice.

Plaintiff also contends that the identity of the note is established by the deposition of defendant Sherer. In this deposition Sherer identified a copy of the note and admitted that he signed the original. His testimony, however, does not establish production of the original note by plaintiff, and neither does it show that plaintiff is still the owner and holder. Since this essential element of plaintiffs proof is lacking, the summary judgment cannot stand.

Reversed and remanded.


author: HALL, Justice.

text:
    Nora Gail SUTTON, Appellant, v. STATE HIGHWAY DEPARTMENT of Texas, Appellee.
    No. 5598.
    Court of Civil Appeals of Texas, Waco.
    March 24, 1977.
    Rehearing Denied April 14, 1977.
    James K. Peden, III, Strasburger, Price, Kelton, Martin & Unis, Dallas, DeVore, Bagby, McGahey, Ross & Burnett, Arlington, for appellant.
    Sam L. Jones, Jr., Austin, for appellee.
   HALL, Justice.

On May 4, 1970, Michael Dwayne Sutton was driving his automobile on Highway 67 in Ellis County at a point approximately five miles south of the City of Midlothian when a heavy pipe loader fell from a truck and either struck his car or caused him to veer into a bridge abutment. He died five days later of injuries received in the accident. Nora Gail Sutton, the decedent’s widow, brought this suit originally against Curtis Nolan Julian (the driver of the truck), Wales Transportation, Inc., and Gif-ford-Hill & Company, Inc., as a wrongful death and survival action under the provisions of Article 4671 et seq., Vernon’s Tex. Civ. St., alleging that at the time of the accident Julian was operating the truck in a joint enterprise with Wales Transportation; that Wales was a wholly-owned subsidiary of and alter ego of Gifford-Hill; and that the accident and the decedent’s death were caused by their negligence in certain particulars we need not mention. Later, Mrs. Sutton joined the State Highway Department of Texas (State) as a defendant on the theory that the pipe loader was caused to fall onto the roadway when the wheels of the truck struck a severe depression in the highway where the asphalt part of it had sunk below the surface of the abutting concrete bridge.

The suit was originally brought by Mrs. Sutton individually, as the surviving widow of the decedent, in a representative capacity on behalf of the estate of the decedent and for the use and benefit of all persons entitled to recover under the wrongful death and survival statutes, and as next friend and guardian of the estate of her minor son, Michael Shane Sutton, who was born two months after the decedent’s death.

While the suit was awaiting trial, a settlement was made and an agreed judgment was rendered in the case which effected a release of all parties but the State. The judgment recites that Mrs. Sutton, individually, and in her various representative capacities, and the defendants, Gifford-Hill, Wales, and Julian had settled their controversies, but that the cause between the minor plaintiff and the State had not been settled. It recites among other things the release of Gifford-Hill, Wales, and Julian in consideration for their payment of $150,-000.00; that the minor plaintiff was not accepting his portion of the settlement sum as payment in full for his damages; that he was specifically reserving his right to proceed against the State to recover his remaining damages, while releasing and discharging Gifford-Hill, Wales, and Julian; and it severs the minor’s cause of action against the State from the remainder of the case.

Thereafter, Mrs. Sutton filed her fourth amended original petition, suing only as next friend and guardian of the person and estate of the minor plaintiff, and complaining only against the State. In it, she alleged that the accident happened in the afternoon of the day in question when the deceased was driving his automobile from Dallas to his place of business in Cleburne; that it was “a clear ánd dry day”; that a severe depression existed in the highway at the point of the accident “where the asphalt roadway had negligently been allowed to sink below the surface of a small abutting concrete bridge”; that the pipe loader was caused to fall from the truck, causing the accident and resulting death of the deceased, when the wheels of the truck struck the depression in the roadway; that the State “had knowledge of the defect,” that it negligently failed to properly maintain and repair the surface of the roadway at this place, and that it negligently failed to post signs warning of the defect; and that the suit was brought under the provisions of the Texas Tort Claims Act (Article 6252-19, Vernon’s Tex.Civ.St.).

The State moved for dismissal of the suit asserting among other grounds that plaintiff’s petition does not state a cause of action upon any theory of governmental liability coming within the waiver of sovereign immunity set forth in the Tort Claims Act, and that for this reason the court did not have jurisdiction in the case. The record shows without question that the pleas to the jurisdiction were directed at plaintiff’s fourth amended original petition. The motion was granted and the suit was dismissed for want of jurisdiction without the court specifying the basis of its order. Plaintiff appeals. We reverse.

In its pertinent parts, the Texas Tort Claims Act provides as follows:

Sec. 3. Each unit of government in the state shall be liable for money damages for . . . personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office . or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages.
Sec. 14. The provisions of this Act shall not apply to: . (7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or nonperformance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.
Sec. 18. . (b) As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets

We agree with the State that the depression in the highway was a “premises defect” within the meaning of Section 18(b) of the Act. In this respect we fail to see a material distinction between our State highway system and a network of canals operated by a unit of government which was held to be “premises” within the meaning of the Act in Lower Neches Valley

Authority v. Murphy, 536 S.W.2d 561 (Tex.Sup.1976).

Plaintiff says the depression was a “special defect” within the exception to the limitation of duty contained in Section 18(b), citing Harris County v. Dowlearn, 489 S.W.2d 140 (Tex.Civ.App.—Houston [14th] 1973, writ ref’d n. r. e.). We disagree. In Dowlearn, an unattached wall partition fell on the claimant while she was seated, waiting to pay taxes, in the Harris County Courthouse. It was held that the defect was special and that the premises defect did not apply. Unlike the condition before us, the defect in Dowlearn was specially created, and was not a routine maintenance defect. It is distinguishable on those grounds.

Under the express terms of Section 18(b), a unit of government’s duty to claimants as to premise defects under the circumstances before us is “only the duty owed by private persons to a licensee on private property.” In Lower Neches Valley Authority v. Murphy, supra, and State v. Tennison, 509 S.W.2d 560 (Tex.Sup.1974), our Supreme Court defined that duty as follows:

It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe .

Plaintiff did not plead that the State caused the deceased’s death willfully, wantonly, or through gross negligence, and does not state a cause of action on those grounds. However, she did allege that the State knew of the premises defect and failed to warn of it. She therefore brings her case within the exception to the general rule. The State says the case does not fall within the exception because plaintiff did not plead that the deceased did not know of the defect, and because she did not expressly allege that the depression was a “dangerous condition.” We disagree. The question of the deceased’s knowledge of the premises condition relates to an issue of contributory negligence. Farley v. M M Cattle Company, 529 S.W.2d 751, 758 (Tex.Sup.1975). Plaintiff was not required to negate it in her pleadings. And, the extent of the danger posed by the defect alleged is a matter for proof on the trial.

The State asserts the maintenance or not of the highway by the Highway Department is a discretionary activity falling within the exclusion set forth in Section 14(7) of the Act, and that for this reason the case was properly dismissed for want of jurisdiction. This contention is overruled. Article 6674q-4, Vernon’s Tex.Civ.St., directly places the responsibility for the construction and “the efficient maintenance of all highways comprising the State System” upon the State Highway Commission and the State Highway Department.

None of the remaining grounds asserted by the State to support the order of dismissal deal with the question of jurisdiction. Most deal with questions of abatement which will likely be corrected by new pleadings. Two of the grounds, charging (1) that this suit is a “second suit” prohibited by the wrongful death statute, and (2) that the agreed judgment and a resulting subrogation agreement violate Article 6636, Vernon’s Tex.Civ.St. (which pertains only to recordation and notice of transfers of judgments and causes of action) are wholly without merit.

The case needs to be repleaded, with all beneficiaries under the wrongful death statutes again brought before the court, grounds for recovery fully alleged, defenses and exceptions to pleadings restated, and the suit heard anew in keeping with the rulings in this opinion.

The judgment is reversed and the cause is remanded for trial.


text:
    Van DOYLE et al., Appellants, v. Oliver ELLIS, Appellee.
    No. 5655.
    Court of Civil Appeals of Texas, Waco.
    March 31, 1977.

      Marvin D. Whitaker, Paxton, Whitaker & Parsons, Palestine, for appellants.
    Kenneth H. Keeling, Huntsville, for ap-pellee.
   HALL, Justice.

This is a trespass to try title action involving a tract of approximately 77.403 acres in Leon County, brought by appellants Van Doyle and other “Doyle heirs” on March 23, 1973, against appellee Oliver Ellis. By way of defense, Ellis pleaded the ten-year statute of limitation, Article 5510, Vernon’s Tex.Civ.St., which provides in pertinent part as follows:

Any person who has the right of action for the recovery of lands, tenements or hereditaments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward.

Trial was to a jury. Ellis stipulated that appellants owned record title to the property. Answering the single special issue submitted, the jury found in favor of Ellis on the limitation question. Judgment was rendered on the verdict that plaintiffs take nothing, and fee simple title was vested in Ellis. Doyle and the others appealed. We affirm.

There is evidence of these facts: Ellis purchased the property in question in January, 1960, by quitclaim deed from Claude B. Hamil who lives in Houston. At that time, the east side of the property, which adjoins a county road, was fenced. Within one month after purchase, Ellis fenced the remaining three sides with a strong four-strand barbed wire fence with post-oak posts, and placed a gate in the east fence line. Immediately thereafter, he began grazing cattle on the property. In 1967, Ellis sold the tract to J. M. Plunkett, Sr., and reserved a vendor’s lien to secure payment of a $10,700 note he took as consideration. Eventually, Plunkett defaulted on the note, Ellis sought judicial foreclosure, and in 1973 judgment was rendered in the District Court of Leon County in favor of Ellis and against Plunkett foreclosing the lien and awarding Ellis title to and possession of the property. When Plunkett purchased the land, Ellis removed his cattle, and Plunkett began grazing cattle and horses on the premises. While Plunkett had the property, he cleared about 10 acres, built two water tanks, erected a feed barn on the place, replaced the old gate with an aluminum gate, and placed “no trespassing” signs along the county road. When Ellis instituted his foreclosure suit, Plunkett removed his stock and Ellis again began grazing cattle on the tract. Until Ellis purchased and fenced the property, it formed a part of about fourteen hundred acres of “open rangeland” used by ranchers in the area for cattle grazing. Since Ellis purchased, fenced, and began grazing the tract, it has been known in the community as the “Ellis land.” The fences, the cattle, one of the tanks, the “no trespassing” sign, the gate, and a chain and lock on the gate, are all visible from the county road which runs along the east side of the property. Appellants Van Doyle and Ethel Doyle Lusk, the only Doyle heirs who live in the vicinity of the property, learned in 1964 that Ellis had fenced the property and was grazing it and claiming it. From January, 1960, until March, 1973, Ellis and Plunkett together held exclusive, peaceable, and continuous possession of the tract, under enclosure and under claim of right, and hostile to the claims of all others, including appellants.

This evidence is legally and factually sufficient to support the jury’s finding on the limitation issue. Appellants’ contrary contentions are overruled.

Specifically, appellants say that the foreclosure suit by Ellis against Plunkett defeats Ellis’s claim of continuous, peaceable possession. This contention is overruled. The title and right of possession to the land Plunkett received were those held by Ellis. By reason of the judgment of foreclosure, Ellis recovered all interest in the property held by Plunkett. Plainly, the right of possession of each was referable to that of the other. In other words, there was privity of possession between them on each transaction. See, Brady v. McGuistion, 210 S.W. 815, 818 (Tex.Civ.App.— Amarillo 1919, no writ). Article 5516, Vernon’s Tex.Civ.St., provides that peaceable and adverse possession within the meaning of Article 5510 may be held by different persons successively when there is privity of possession between them.

Excepting about ten acres, the tract in question is covered with timber and underbrush. Pointing to that fact, appellants assert that the use of the property by Ellis and Plunkett merely for pasture was not sufficient to satisfy the “use and enjoyment” requirements of the limitation statute. We disagree. There is an abundance of testimony to the effect that the best use of the property was for grazing and raising cattle and horses. A limitation claimant under Article 5510 is only required to use the land for a purpose to which it is adaptable and capable of being used. Wallis v. Long, 75 S.W.2d 138, 142 (Tex.Civ.App.—Galveston 1934, writ ref.).

Appellants’ remaining points and contentions are also without merit, and they are overruled.

The judgment is affirmed.


author: STEPHENSON, Justice.

text:
    Anthony NEWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Terrence R. Fitzgerald, Deputy Public Defender, Pamela M. Greenwell, Asst. Dist. Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Deedra Benthall-Nietzel, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Anthony Newell was found guilty of robbery in the first degree, KRS 515.020, and wanton endangerment in the first degree, KRS 508.060, and in the second stage of a bifurcated trial was convicted as a persistent felony offender, KRS 532.080, and was sentenced to life imprisonment and to twenty years’ imprisonment. Newell appeals. We affirm.

Two men committed an armed robbery at Cotton’s Bar in Louisville. Ernest Bryant was wounded, not seriously, by a shot fired by Newell. A police officer displayed a photographic album to Bryant, who identified a photograph of Walter Simpson as one of the robbers. The police officer proceeded to an address in Louisville and arrested Walter Simpson. Newell was with Simpson and was also arrested. Later that day, Simpson and Newell were placed in a lineup and identified by Ernest Bryant.

During the course of the trial, the Commonwealth introduced, over Newell’s objection, a photograph of Simpson.

Newell asserts error in (1) the introduction of the photograph into evidence; (2) the cross-examination of a defense witness; (3) closing argument of the Commonwealth; and (4) denial of a new trial due to the failure of the Commonwealth to prove that Newell was eighteen years of age at the time the first offense was committed.

Newell argues that the introduction of the photograph deprived him of the constitutional presumption of innocence by casting him as the companion of a known criminal.

We are not favored with any authority to support this novel argument, instead Ne-well cites authorities involving “mug shots” of appellants being introduced into evidence. We can only say that these authorities do not support Newell’s argument and that in the case law on the subject some instances resulted in reversal, some in the convictions being affirmed, depending on the circumstances in each case.

Here, there was no mention of Newell in connection with the photograph. The Commonwealth did not dwell on the subject of the photograph or mention any criminal connotation.

We are of the opinion the introduction of the photograph of Simpson did not deprive Newell of the presumption of innocence, nor did it prejudice him in his right to a fair trial.

The cross-examination complained of consisted of the Commonwealth’s attorney asking a defense witness if Newell had given her rings taken in the robbery. The witness denied any knowledge of the rings. The son of the witness was also asked if his mother had received the stolen rings and also denied any knowledge of the rings.

No objections were made to the questions, thus the issue is not preserved for appellate review.

From our review of the record, we cannot see any point to the questions, the subject was not unduly pursued by the Commonwealth, and Newell does not even pretend to argue that these questions were so prejudicial to him that they should be considered in the absence of an objection.

Newell complains of three portions of the argument made by the Commonwealth at the trial of the principal charges. There was no objection on two of the statements, so we will not consider them as error. We do observe that these portions of the argument are pointless, not appropriate to the facts adduced in the trial of the case and cause us to wonder why the Commonwealth’s attorney would flirt with reversal when he had a strong case for the jury without engaging in pointless histrionics.

The third statement complained of is as follows: “We didn’t commit Anthony Newell to the life of crime that he has obviously undertaken.” There was an objection interposed to this statement. The trial court stopped this line of argument, and the Commonwealth then proceeded to argue the evidence of the case. Newell did not ask for an admonition or move for a mistrial. In this posture, even though the statement exceeded any reasonable inferences to be drawn from the evidence, we will not consider whether the statement was so prejudicial to Newell that he should be granted a new trial. Newell apparently did not consider it prejudicial as he argues only as to the statements to which there were no objections.

During the persistent felony offender stage of the bifurcated trial, the Commonwealth proved a prior judgment of conviction on May 20, 1965, with a sentence of one year, and a prior judgment of conviction entered June 2, 1970, with a sentence of twenty years. The Commonwealth established Newell’s birth date as February 23, 1945, and established his age at the time of the first conviction as twenty years and twenty-five years at the time of the second conviction. Further, the Commonwealth established Newell’s age at the time of the commission of the second offense, but failed to introduce evidence to prove the date of the commission of the first offense in order to satisfy the requirement of KRS 532.-080(2)(b) that the offender was over the age of eighteen when the offenses were committed. This plain failure of the Commonwealth to prove a case under the persistent felony offender statute was not preserved for appellate review. Newell did not move for a directed verdict at the close of the evidence; thus, he waived the insufficiency of the evidence by his failure to ask for a peremptory instruction. Cf. Cox v. City of Louisville, Ky., 439 S.W.2d 51 (1969).

Further, Newell did not object to the instructions. RCr 9.54(2) provides:

“No party may assign as error the giving or failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.”

Proof that a defendant was over the age of eighteen at the time of the commission of the prior felony offense is an essential element of the persistent felony offender statute, but a failure of such proof may be waived by not directing the attention of the trial court to the omission by appropriate objections.

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice.

text:
    Evelyn Pinkerton BROOKS, Appellant, v. Obie BURKEEN et al., Appellees. Seretha CHILDERS et al., Appellants, v. INTERNATIONAL HARVESTER COMPANY et al., Appellees.
    Supreme Court of Kentucky.
    April 1, 1977.

      James W. Owens, Chartered, Paducah, for appellant, Brooks.
    Hughes & Gregory, Murray, for appellee, Burkeen.
    Boehl, Stopher, Graves & Deindoerfer, Paducah, for appellee, Allied Structural Steel Corp.
    Joe G. Leibson, Louisville, for appellants, Childers et al.
    Carl A. Henlein, Louisville, for International Harvester et al.
   LUKOWSKY, Justice.

The question presented for decision by these consolidated appeals is whether the following claims can withstand a motion to dismiss. CR 12.02. The trial judges answered the question in the negative and we agree.

I.

Seretha Childers is the widow of Luegean Childers who died on September 23, 1974, of asphyxiation while he was at work and in the process of cleaning out a furnace. The death allegedly occurred as a result of the negligence of his employer and its foreman. Seretha seeks recovery for loss of consortium.

This claim fails because it is well settled law that her recovery would be limited to damages which she sustained before her husband’s death. Prosser on Torts, 4th Ed., 899. His death occurred instantaneously while at work. Consequently, she lost no services, society, fellowship or affectionate relations prior to death. Rogers v. Fancy Farm Telephone Co., 160 Ky. 841, 170 S.W. 178 (1914); Loew v. Allen, Ky., 419 S.W.2d 734 (1967).

II.

Samuel Childers and Donald Child-ers are the minor children of Luegean Childers who died in the manner described in I. They seek recovery for loss of paternal care.

These claims fail because no court or legislature in the United States has yet seen fit to recognize such an action.' Pros-ser on Torts, 4th Ed., 896. We decline the opportunity to be the first to do so.

III.

Evelyn Pinkerton Brooks is the wife of George Brooks who received bodily injuries on September 26, 1973, while he was at work. The injuries allegedly occurred as a result of the negligence of his employer and its foreman. The employer and employee had elected coverage by the Workmen’s Compensation Act. Mrs. Brooks seeks recovery for loss of consortium.

Her position is that Kotsiris v. Ling, Ky., 451 S.W.2d 411 (1970) and KRS 411.145(2) grant her a right to sue for loss of consortium and that such right may not be taken from her by either the election of her husband and his employer or by the legislature. Johnson v. Lohre, Ky., 508 S.W.2d 785 (1974).

The weakness of her position is that which is intrinsic in Johnson, supra. That case fails to take cognizance of the ethical, social, economic, political and legal developments which have restructured the family unit to meet the demands of life in the last quarter of the twentieth century. The wife is no longer a vassal of her husband and certainly the husband has not become the serf of his wife.

The level of relative equality which we reached in Colley v. Colley, Ky., 460 S.W.2d 821 (1970) was adjusted to absolute equality by the legislature to meet the demands of times and mores when it adopted the Uniform Divorce Act. The right of each spouse in and to the marital property is determined by a single standard. KRS 403.190. Either spouse, regardless of sex, may be liable to the other for maintenance. KRS 403.200. Either or both spouses may be required to pay for the support of their children. KRS 403.210. Custody of children is awarded by reference to a single standard. KRS 403.270.

The reality of an ever increasing cost and standard of living has forced an ever increasing number of wives to find employment outside the home and a corresponding number of husbands to be exposed to the dubious joys of household chores. Truly the relationship has been changed by the evolution of modern standards from one of master and servant to one of primary independence of the spouses and secondary interdependence of the spouses.

The Federal constitutional right to privacy has been held to protect the decision of one spouse to act in a way which affects the most basic considerations of a marriage from the veto of the other spouse. A spouse’s access to contraceptive devices may not be denied. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See also Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). The decision of one spouse to undergo an operation which will result in sterilization is binding on the other. Ponter v. Ponter, 135 N.J.Super. 50, 342 A.2d 574 (1975). The decision of a wife to have an abortion is binding on the husband. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).

We are convinced that the decision by a spouse to seek and accept employment upon terms and conditions solely satisfactory to that spouse is at least as private, personal and worthy of protection, and certainly more universally ethically acceptable, than any of the above. It is difficult to conceive of a right more unique and fundamental than the right to work at the job of one’s choice. If the spouse of the person seeking covered employment may retain his or her right to damages from the employer for loss of consortium by the simple expedient of failing to consent to the application of the Act that spouse is given, in many cases, an effective veto of the other spouse’s employment. Certainly, many employers would be unwilling to stand the risk of such a lawsuit and, consequently, would decline employment to the spouse seeking it in the absence of such a consent. The decision by a spouse to be covered by the Workmen’s Compensation Act must be binding upon his or her marital partner if his or her right to privacy is to be protected.

This election of coverage brings into play not only the “sweet” provisions of the Act such as the employer’s “liability without fault” but also the “bitter” provisions such as the “exclusive remedy section”, KRS 342.690, effective January 1, 1973, which provides:

“If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.”

and our ease law which holds that a fellow employee is similarly insulated. Miller v. Scott, Ky., 339 S.W.2d 941 (1960).

The argument that Section 54 of the Constitution of Kentucky, which prohibits the General Assembly from abolishing causes of action for injury, protects Mrs. Brooks from the operation of the statute is fallacious. The result achieved by the statute is required by the Federal constitution which is the “supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Constitution of the United States, Article VI, cl. 2.

We are satisfied that the protection of the right to privacy is available whether it be in the form of proscription of state law requiring the contrary or refusal to recognize the civil suit of the spouse of the employee against the allegedly offending employer and fellow employee.

Johnson, supra, is overruled.

The judgments are affirmed.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Diane COLE, a minor, by and through her next friend, Vernice Cole and Arthur Cole, Plaintiffs-Appellants, v. Earl BUMILLER et al., Defendants-Respondents.
    No. 37200.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 28, 1976.
    Motion for Rehearing As to Modified Opinion or to Transfer to Court en banc or to Transfer to Supreme Court Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.
    Samuel A. Goldblatt, William R. Kirby, St. Louis, Arnold T. Phillips, Clayton, for plaintiffs-appellants.
    Wilburn A. Duncan, Clayton, Merle L. Silverstein, St. Louis, for defendants-respondents.
   NORWIN D. HOUSER, Special Judge.

Minor child Diane Cole, pro ami, and her parents sued Earl Bumiller and wife, owners of an apartment building in the City of St. Louis, and the managing realty company, for damages for personal injuries and medical expenses caused by Diane’s ingestion of lead-based paint in the apartment rented by defendants to the Coles. Plaintiffs’ theory was negligence per se, based upon an alleged violation of the city’s lead poisoning ordinance. A jury returned a verdict for defendants. Plaintiffs appealed.

Under the ordinance city inspectors could inspect premises and take paint samples for analysis. If lead levels higher than those permitted by the ordinance were found a letter could be mailed to the property owner requiring him to abate the lead problem within 14 days after receipt of the notice, else he would then be in violation of the ordinance.

When plaintiffs moved into the apartment in November, 1970 it was well painted. There was no peeling of paint. In February or March, 1971 some of the paint started peeling. Occasionally Mrs. Cole would see Diane putting paint chips in her mouth. Diane was hospitalized in August, 1972 after she began stumbling and falling. Blood tests showed her serum lead level high. On September 7, 1972 a city inspector took paint samples from the apartment. A number of areas in the apartment were found to have paint with lead levels in excess of those allowed by ordinance. On September 14,1972 the city sent defendants a notice, denominated a “14-day letter,” informing them of these areas; the methods which could be used to correct the condition, and that the apartment would be rein-speeted on October 6, 1972 to determine whether the request to repair had been complied with. Following an inspection on October 3, 1972 the inspector noted, “The work inside nearing completion. Nothing done outside.” Defendants had contracted for the outside work to commence October 9, 1972, but rain delayed the start and they asked for and were granted a 2-week extension. A notation in the city’s file dated October 16, 1972 stated: “Apt. finished on inside. Work not finished on outside.” A notation dated November 1, 1972 stated that the west front door unit was still in violation. Reinspection on November 8, 1972 revealed that “all areas were OK.” In her deposition, taken October 20, 1973, the acting health commissioner testified that as of November 8, 1972 the lead problem was “abated”; that “inside and out” the owners had done “a beautiful job” and that everything requested had been done in correcting the condition. At trial, however, the commissioner testified to her lack of personal knowledge and that her statement in the deposition had been based upon an oral report to her by Pat Wendling, administrator of the lead poison control service; that samplings of paint chips taken April 24, 1973 definitely showed lead violations in the Cole apartment; that Pat Wendling’s report was made at least 3 or 4 months before April 20, 1973 and that the commissioner would have to modify her deposition statement.

Defendant Earl Bumiller testified on direct examination what steps were taken by him to make the necessary repairs by October 6; that he had the inside of the apartment “done” by October 5 or prior to that date, but the painters did not complete the outside of the building until about two weeks afterwards. His attorney then asked, “Q And then, did you complete or have done all the things that you were told to do?” Bumiller answered “We did more than that.” On cross-examination he testified that he fully complied with the request contained in the notification of violation.

Plaintiffs sought to introduce in evidence their Exhibit 26, which was an information filed in city court against Earl Bumiller for a violation of the lead paint ordinance as of October 6, 1972. Plaintiffs’ counsel also asked permission to cross-examine Bumiller with reference to the exhibit and about a purported conviction in city court of a violation of the lead paint ordinance and assessment of a fine as a penalty, for the purpose of impeaching Bumiller’s alleged testimony that he complied with the lead paint ordinance. The court denied permission to use Exhibit 26 for impeachment purposes, and refused plaintiffs permission to question Bumiller about the purported conviction. The basis of the court’s ruling was that a proper foundation had not been laid.

Appellants’ first point is that the court erred in making these rulings; that Exhibit 26 and the conviction were proper subjects of cross-examination in view of Bumiller’s testimony on direct that he fully complied with the ordinance, and did more than the notice required; that failure to allow the cross-examination was misleading to the jury; that the conviction of a violation of the ordinance was material and relevant cross-examination where the charge of negligence was based upon its violation.

Appellants concede the general rule that a conviction for violation of a municipal ordinance may not be shown to impeach a witness or affect his credibility. Willis v. Wabash R. Co., 284 S.W.2d 503, 512[9] (Mo.1955); Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304, 308 (1946); Daggs v. St. Louis-San Francisco Ry. Co., 51 S.W.2d 164, 166 (Mo.App.1932); Kansas City v. Roberts, 411 S.W.2d 847, 849 (Mo.App.1967); 81 Am.Jur.2d Witnesses § 573, pp. 579, 580. Appellants claim that by testifying on direct examination that in re sponse to the 14-day letter “We did more than” the city required, Earl Bumiller waived the general rule, and under § 491.-050 appellants should have been allowed to cross-examine him concerning the conviction “for the purpose of testing good faith and whether he was truthful and to test his trustworthiness and credibility as a witness in his own behalf.” Appellants say that by testifying on direct examination that he “fully complied” with the city’s request Bu-miller opened up the general subject and subjected himself to cross-examination with reference to any phase of the subject.

The court correctly ruled that no proper foundation was laid. The fact which appellants claim Bumiller testified to and which they sought to impeach was that he fully complied with the ordinance and did more in the way of repairs than the city’s notice required. In the first place, Bumiller did not testify that he complied with the ordinance. Rather, he testified that he complied with what the city ordered him to do. In the second place, full compliance and completion of repairs, under Bumiller’s testimony, occurred about two weeks after October 6, whereas the information alleges and the conviction finds noncompliance on or about October 6. At no time did Bumil-ler testify directly or by implication that he completed all required repairs by the deadline date October 6. He frankly and candidly admitted that as of October 6 he had not completed the repairs ordered on the outside of the building; that they were completed about two weeks later than that date; that by then (two weeks after October 6) he had done all the work requested and more. “Impeachment may only be made where the witness has been asked the specific question upon which he is sought to be discredited.” State v. Haynes, 482 S.W.2d 444, 447[3] (Mo.1972).

The court correctly ruled out Exhibit 26 for another reason, namely, that it was not shown to have been certified or authenticated. In order to be admissible in evidence a public “record or document must be produced from or in the proper custody, and its identity, authenticity, and genuineness must be established, * * 32 C.J.S. Evidence § 626, p. 795, cited with approval in Dyer v. Globe-Democrat Pub. Co., 378 S.W.2d 570, 582 (Mo.1964).

Nor was a proper foundation laid for cross-examination of Bumiller with reference to the purported conviction. Appellant’s counsel told the court there was “evidence in the file” that Bumiller “was brought into court * * * and fined some money for not being in compliance,” and stated their desire to interrogate Bu-miller “for the purpose of impeachment relative to that conviction.” There was no showing of record of the precise nature of the charge of which Bumiller was supposedly convicted, or the date or dates of the alleged violations, and appellants failed to demonstrate to the trial judge (or to this Court) in what respect the conviction would have contradicted some particular testimony given by Bumiller. As developed above, if the conviction was for a violation of the ordinance as of October 6 it would not have impeached Bumiller’s testimony. To place the court in error it was incumbent on appellants to demonstrate with particularity the materiality and relevancy of the conviction, and this they failed to do. 27 Mo. Digest Trial ®=»45.

Appellants’ second point is that the court erred in permitting defendants, over plaintiffs’ objection that there was no showing of unavailability of the witness, to read the deposition of Dr. Bruce, acting health commissioner, for the reason that at time of trial she was within the city where the case was tried; that there was no showing that her medical practice and duties made her unavailable in person at time of trial, and no showing that she came within the exception of Rule 57.07(a), (a)(3)(C).

After her deposition was read, over objection, Dr. Bruce appeared in person in the courtroom, was sworn as a witness, called to the stand, and examined by appellants. She testified fully with respect to the taking of the deposition, explained her previous testimony, modified statements favorable to defendants made by her in the deposition, and implicated defendants in lead violations in the Cole apartment. Plaintiffs had a full opportunity to inquire of Dr. Bruce concerning the facts of the case. They took advantage of the opportunity. If there was error in reading the deposition without making a showing of absence from the city or unavailability, the subsequent appearance of Dr. Bruce in court, plaintiffs’ calling Dr. Bruce to the witness stand and examining her, and her giving testimony favorable to plaintiffs, effectively cured the error. St. Louis Nat. Bank v. Flanagan, 129 Mo. 178, 31 S.W. 773, 780 (1895). In any event, appellants were not prejudiced. In Benjamin v. Metropolitan St. Ry. Co., 133 Mo. 274, 34 S.W. 590 (1896), after defendant closed its evidence and while plaintiff was introducing rebuttal evidence the witness deposed appeared in court. Thereupon the court, on motion, excluded the deposition “for the reason that the witness is present in court.” The Supreme Court held this ruling free from error, saying, 34 S.W. l.c. 593: “But we are unable to see that defendant was in the least prejudiced by the ruling of the court. Defendant was permitted, by way of a cross-examination, to obtain from the witness a full confirmation of the evidence given in the deposition. Besides, by such examination defendant waived an exception to the court’s ruling. It received the full benefit of the evidence of the witness, and it would be unfair to reverse the case on account of the irregularity by which he was forced to secure it.”

Evidence of inspections of the property made in December, 1973 and January, 1974, purportedly showing violations, were excluded by the trial court on the basis of a representation by defendants’ counsel that the Bumillers no longer owned the property at those times. Defendants’ counsel promised to offer evidence as to the date the Bumillers disposed of the property, but he did not do so. Appellants’ third point is that the court erred in failing to reverse its ruling excluding the inspections of December, 1973 and January, 1974 upon failure of defendants to come forward with evidence that they no longer owned the property on those dates. The difficulty is that appellants failed to include this specific point in their motion for a new trial. They made a general, broad and sweeping charge that “6. The Court erred in refusing to admit into evidence competent, material and relevant evidence and testimony offered by and on behalf of the plaintiffs.” The general allegations of paragraph 6 were not sufficient to identify the particular ruling of the court asserted on appeal to have been erroneous. Pasley v. Newton, 455 S.W.2d 43 (Mo.App.1970). We find no objection or request made by plaintiffs at the close of the evidence based on defendants’ failure to offer evidence of the date of termination of their ownership. Under these circumstances the alleged error was not preserved for appellate review, Rule 78.07, and is not to be considered on this appeal. Rule 84.13(a); Oliver v. Bl-State Development Agency, 494 S.W.2d 49 (Mo.1973); Rotert v. Peabody Coal Co., 513 S.W.2d 667 (Mo.App.1974); Walkley v. Sears, Roebuck & Co., 536 S.W.2d 169 (Mo.App.1976).

Judgment affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.”


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Firman Bill GRAY, Defendant-Appellant.
    No. 36489.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 18, 1977.
    Motion for Rehearing or Transfer Denied March 15, 1977.
    Application to Transfer Denied May 10, 1977.
    Richard H. Sindel, Asst. Public Defender, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Preston Dean, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals from his convictions of robbery in the first degree by means of a dangerous and deadly weapon, § 560.135 RSMo 1969, and attempted robbery in the first degree by means of a dangerous and deadly weapon, § 556.150 RSMo 1969. Defendant was sentenced to 25 years imprisonment on the former count, 5 years imprisonment on the latter count. The sentences were to be served consecutively.

Defendant’s convictions followed upon a new trial mandated by this court in State v. Gray, 503 S.W.2d 457 (Mo.App.1973). The evidence presented at retrial supporting the convictions may be briefly stated. In the early morning hours of January 8, 1972, Robert Hitchcock and Frankie Bush heard a gunshot and were then approached by two black men of different heights on the parking lot of Yocovelli’s Restaurant. The taller of the two men asked the victims for their wallets, and Bush handed the man his wallet. When Hitchcock hesitated, the taller man shot Hitchcock in the hand. The two robbers then fled. Bush retrieved Hitchcock’s wallet from the parking lot and observed a white 1962 Ford convertible drive away. Hitchcock, who had run inside the telephone the police, reported these facts to the police.

A short time after the robbery, the police stopped the white 1962 Ford convertible in which defendant rode. The automobile was searched. Later the same morning, defendant appeared in two line-ups and was viewed by both Bush and Hitchcock. After the second line-up, the victims agreed that defendant was the smaller man who had participated in the robbery. Both Hitchcock and Bush identified defendant at trial.

Defendant sets forth three points relied on in his brief. The first two points, challenging the admissibility of evidence found in the 1962 Ford convertible and challenging the propriety of the out-of-court line-up identification of defendant, have been previously reviewed by this court and have been decided adversely to defendant. State v. Gray, supra. We do not reach the merits of defendant’s contentions under the rule of State ex rel Mercantile National Bank at Dallas v. Rooney, 402 S.W.2d 354, 361[6] (Mo. banc 1966).

Defendant’s third point on appeal is that the trial court erred in refusing three jury instructions proffered by defendant relating to identification evidence “in that ultimately the whole case rested on the quality of the identification, therefore, the requested instructions were based on the evidence, were relevant, were necessary and were proper.” Defendant argues that the following three instructions should have been given by the trial court:

“Instruction No. A (Not MAI-CR-Offered by Defendant) Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.
Instruction No. B (Not MAI-CR-Offered by Defendant) You are further instructed that testimony tending to prove identity is to be scrutinized with extreme care. In considering such testimony you must take into account the opportunity of the witness to observe, the description given by the witness, the positiveness of the identification at the line-up and the positiveness of the identification at trial.
Instruction No. C (Not in MAI-CR-Offered by Defendant) Where the prosecution has offered identification testimony, i. e., the testimony of an eyewitness that he saw the Defendant commit the act charged, such testimony should be received with caution. An identification by a stranger ⅛ not as trustworthy as an identification by an acquaintance. Mistaken identification is not uncommon. The witness’ opportunity to observe the perpetrator during the commission of the act charged is of great importance in determining the credibility of his identification. The testimony of the witness that he is positive of his identification may be considered by you, but does not relieve you of the duty to carefully consider his identification testimony and to reject it if you find that it is not reliable. Careful scrutiny of such testimony is especially important whe[n], as in this case, it is the only testimony offered by the prosecution to connect the Defendant with the act charged.”

We believe that the proffered instructions were tantamount to instructions on the credibility of testimony. As such, the trial court did not err in refusing to give the instructions. The trial court did give the approved criminal instruction governing the weight and value of evidence and the believability of witnesses, MAI-CR Number 2.01. The approved instruction authorizes the jury to consider the witness’ demeanor, his “ability and opportunity to observe and remember any matter about which he testifies,” any prejudice of the witness, the reasonableness of the witness’ testimony in light of other evidence, and “any other matter” tending to affect the truthfulness of testimony. MAI-CR No. 2.01. No other or additional instruction on the believability of a witness or the effect, weight, or value of a witness’ testimony should be given. MAI-CR No. 2.01, Notes on Use (2); State v. Lang, 515 S.W.2d 507, 510-511[4] (Mo.1974).

The judgment is affirmed.

WEIER, P. J., and CLEMENS, J., concur.

      . As required, the trial court read MAI-CR No. 2.01 to the jury after it was sworn and gave the written instruction to the jury with the other written instructions at the conclusion of the case. MAI-CR No. 2.01, Notes on Use (1).