author: KLINGEMAN, Justice.

text:
    Mary R. CARREON, Appellant, v. TEXAS STATE DEPARTMENT OF PUBLIC WELFARE, Appellee.
    No. 15490.
    Court of Civil Appeals of Texas, San Antonio.
    May 19, 1976.
    Brendan E. Gill, San Antonio, for appellant.

      John L. Hill, Atty. Gen., David M. Kendall, Frank Cooksey, Asst. Attys. Gen., Austin, for appellee.
   KLINGEMAN, Justice.

This is an appeal from a judgment rendered against appellant, Mary R. Carreon, ordering her to pay child support payments to herself, and also from a portion of the same judgment ordering that all child support payments made by appellant’s husband be made to the appellee, the Texas State Department of Public Welfare. Such judgment also ordered appellant’s husband, Robert M. Carreon, to pay child support in the amount of $10 per child per week or a total of $20 per week for the support of the two minor children of the marriage of Robert M. Carreon and Mary R. Carreon. Robert M. Carreon has not appealed from this order.

Appellant and her husband, Robert M. Carreon, are separated. There are two children of such marriage, Leticia, born July 4, 1972, and Alex, born August 20, 1973, who live with appellant. The Texas State Department of Public Welfare provides a direct cash grant to appellant and her two children of $116.25 per month. This suit was instituted by the Texas State Department of Public Welfare, in which it asserts: (a) for sometime the Carreon’s have been separated and respondent, Robert M. Car-reon, has failed and refused to provide any support or maintenance for his wife and the minor children; (b) respondent, Robert M. Carreon, is gainfully employed and financially able to contribute support to the minor children; and (c) Mary R. Carreon is unemployed and without sufficient funds to provide reasonable and necessary support. Appellee prayed the court that Robert M. Carreon be ordered to appear and show cause why he should not be ordered to pay reasonable support payments, and that any payments ordered to be made by Robert M. Carreon be paid to the Texas State Department of Public Welfare to the extent that appellee has supplied the needs of the children.

A show cause order was issued to Robert M. Carreon, and another show cause order was issued to Mary R. Carreon commanding her to appear in court to show cause why all support payments received under the order should not be paid to the Texas State Department of Public Welfare as alleged in the Department’s petition.

The court’s judgment here under attack finds that Robert M. Carreon has sufficient means tc- contribute to the support and maintenance of the minor children, and that it would be to the best interests of the children that Mary R. Carreon contribute towards the support of such minor children to make up any deficiencies in child support. Robert M. Carreon is ordered to pay support in the amount of $10 per week per child or a total of $20 per week, which payments are to be made to the Texas State Department of Public Welfare. Mary R. Carreon is ordered to pay support in the amount of $5 per week per child or a total of $10 per week to be paid to herself to make up any deficiencies in child support.

By two points of error appellant complains that the trial court erred (a) in granting a judgment providing for relief that was never sought by the petitioner; (b) in granting a judgment which ordered appellant to pay child support to herself because the court had no jurisdiction over appellant to order any such order.

It is undisputed that there is nothing in the pleadings asking that appellant be ordered to make any child support payments. The only relief sought by appellee is (a) that the father, Robert M. Carreon, be ordered to make child support payments for the two minor children; (b) that all payments ordered to be paid by the father be paid to the Texas State Department of Public Welfare to the extent that the Department has supplied the needs of the children and for so long as the Department continues to provide support for them.

The show cause order issued to appellant does not summon her to show cause why she should not be ordered to pay child support payments, but only to show cause why the child support payments ordered to be paid by Robert M. Carreon should not be paid to appellee.

Appellant contends that: (a) appellee’s pleadings are not sufficient to support a judgment ordering her to pay child support; (b) such judgment violates due process, as neither the pleadings nor the show cause order issued to her gave her any notice whatsoever regarding child support payments to be made by her; (c) the court’s jurisdiction to order appellant to pay child support payments was never invoked.

We have concluded that any of the above grounds are sufficient to support a reversal of the trial court’s order insofar as it pertains to child support payments to be made by Mary R. Carreon.

Clearly there was absence of due process. A fundamental element of due process is adequate and reasonable notice appropriate for the nature of the hearing. Lowe v. City of Arlington, 453 S.W.2d 379 (Tex.Civ.App.-Ft. Worth 1970, writ ref’d n. r. e.); Goodman v. Goodman, 236 S.W.2d 641 (Tex.Civ.App.-San Antonio 1951, no writ). In Goodman v. Goodman, supra, it was urged in a child custody case that the court was not bound by the usual “technical” rules of practice and procedure where the best interests of a child are concerned. Judge Pope, then on this court, said:

We recognize that respectable authority has made broad utterances that a determination of the future welfare of a child should be unhampered by narrow technical rules. (Citations omitted.) While we are in accord with the liberal interpretation of rules relating to children, we do not understand that any of these authorities hold that the due process clauses of the State of Texas and the United States are mere ‘technicalities’ which are to be respected when property is at issue, but suspended when a child is the subject of controversy.

Moreover, we do not think the pleadings are sufficient to support the judgment ordering appellant to make child support payments. Appellee does not seek such relief in its petition, and there is nothing in appellee’s petition or the show cause order served on appellant that even pertains to child support payments to be made by appellant. The office of a pleading is to define the issues to be tried, and the purpose of the pleadings is to advise the court and the adverse parties what contentions of the pleader will be heard on the trial of the case. A pleading must — give fair and adequate notice of facts which the pleader relies upon in order that any adverse party may properly prepare his defense thereto. Generally, a trial court cannot grant relief that is without pleadings to support it, and a judgment which is not supported by the pleadings is not warranted. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); City of Ft. Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (1937); Edwards Feed Mill v. Johnson, 302 S.W.2d 151 (Tex.Civ.App.—San Antonio 1957), rev’d on other grounds, 158 Tex. 313, 311 S.W.2d 232 (1958); Jones v. Jones, 301 S.W.2d 310 (Tex.Civ.App.—Texarkana 1957, writ ref’d n. r. e.); Forman v. Barron, 120 S.W.2d 827 (Tex.Civ.App.—El Paso 1938, writ ref’d).

We recognize that courts have broad authority in matters involving child custody or child support, but a question here involved is whether appellee invoked the jurisdiction of the court to order appellant to make child support payments by pleadings in which the only relief sought is that the father be ordered to make child support payments, and that such payments be paid directly to the Texas State Department of Public Welfare, appellee herein. Appellant filed no pleadings whatsoever.

Under the record before us we do not believe the jurisdiction of the court was invoked to order appellee to make child support payments when neither appellee nor appellant sought any such determination. See Rodriguez v. Vela, 488 S.W.2d 872 (Tex.Civ.App.— San Antonio 1972, no writ); Goodman v. Goodman, supra; Dawson v. Woodley, 319 S.W.2d 394 (Tex.Civ.App.—Ft. Worth 1958, writ ref’d n. r. e.).

Appellant’s first two points of error are sustained.

We next consider appellant’s point of error that the trial court erred in ordering that the child support payments, which are to be paid by appellant’s husband, are to be paid to the Texas State Department of Public Welfare. As hereinbefore noted, it is apparent from appellant’s brief that her real contention in this regard is that the trial court erred in failing to designate what portion of the child support payment collected by the Texas State Department of Public Welfare should be turned over to her, and in failing to provide that no reduction should be made in the family assistance.

Such point of error is primarily based on a portion of Article 695c, Sec. 18-B(2), Tex. Rev.Civ.Stat.Ann., which provided:

The State Department may not withhold an assistance payment on behalf of a dependent child because of a court order for support of such child unless the amount available to said child under such court order is sufficient to supply the needs of the child in accordance with standards and rules and regulations promulgated by the State Department.

It appears from the record that the Texas State Department-of Public Welfare contributes the amount of $162.80 per month toward the support of the family under the program known as Aid to Families with Dependent Children, of which amount $116.25 represents the amount necessary to supply 75 per cent of the recognized needs of a family of three, which are compatible with health and decency. The record also contains exhibits introduced into evidence, consisting of authorizations signed by appellant, in which she states that she is presently receiving assistance in Aid to Families with Dependent Children from the Texas State Department of Public Welfare, and authorizes and agrees that any and all child support payments made by Robert M. Car-reon are to be sent or delivered to the Texas State Department of Public Welfare.

Appellant contends that the State legislature, by the passage of the hereinbefore quoted provisions of subsection (2) of section 18-B clearly indicated that there is to be no reduction in the amount of the AFDC grant until the needs of the children are met, which she refers to as “budgetary needs.”

The Texas system, which provides 25 per cent reduction in a standard of need in the AFDC program, was upheld in Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). Appellant, recipient of Aid to Families with Dependent Children, challenged the system whereby Texas, in order to allocate its fixed pool of welfare money among persons with acknowledged need, applied a percentage reduction factor to arrive at a reduced standard of need; the factor being lower for AFDC than for other assistance programs. The Supreme Court said:

Applying the traditional standard of review under that [14th] amendment, we cannot say that Texas’ decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may. have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.

The Supreme Court, in King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), said:

There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.

The trial court had before it an authorization signed by Mary R. Carreon in which she agreed that any and all support payments made by Robert M. Carreon were to be sent or delivered to the Texas State Department of Public Welfare. This type of procedure is approved or authorized under both State and Federal statutes. A portion of Section 18-B of Article 695c, Tex.Rev.Civ.Stat.Ann., the statute on which appellant relies in support of her point of error, also provides that if assistance payments are made by the Texas State Department of Public Welfare, the Department is authorized to file notice with the court ordering the support payments, and that upon receipt of such notice the court shall order that the payments be made to the Texas State Department of Public Welfare to the extent that the Department has supplied the needs of such dependent child. Article 695c, Sec. 18 — B, was amended, effective as of June 19,1975, and such 1975 amendment provides that an applicant for or recipient of financial assistance shall be required to assign to the Texas State Department of Public Welfare any rights to support from any other person, which the applicant or recipient may have in his own behalf or for a child for whom the applicant or recipient is claiming assistance, including the right to an amount accrued at the time the assignment is executed.

The Social Services Amendment of 1974, on which appellant relies in connection with her fourth point of error, has a provision that a state agency may provide, as a condition of eligibility for aid, that each applicant or recipient will be required to assign to the state any right to support from any other person that the applicant may have in his own behalf or for any other family member for whom the applicant is applying for or receiving aid.

Appellant asserts that in determining need such a determination should be based on “budgetary need” rather than “recognized need.” Appellant and appellee are in disagreement as to exactly what “budgetary need” and “recognized need” mean. It appears from the record that the amount ordered to be paid by appellant’s husband is $80.00 a month, which is below both “budgetary needs” and “recognized needs,” and that the amount being paid by the Texas State Department of Public Welfare is in excess of the amount to be paid by the husband.

We have concluded that under the record appellant’s point of error number three is without merit and should be overruled.

Appellant’s last point of error is that the trial court erred in entering an order that was in conflict with applicable provisions of federal law. Such point of error is based on a provision of the Social Services Amendment of 1974, Public Law 93-647. The portion relied on by appellant reads as follows:

See. 457. (a) The amounts collected as child support by a State pursuant to a plan approved under this part during the 15 months beginning July 1,1975, shall be distributed as follows: (1) 40 per centum of the first $50 of such amounts as are collected periodically which represent monthly support payments shall be paid to the family without any decrease in the amount paid as assistance to such family during such month;

Appellant asserts that under the provisions of the Social Services Act above set forth that the court should frame its order so that during the 15 months beginning July 1, 1975, 40 per cent of the first $50.00 of the monthly child support payment shall be paid to the family without any decrease in the amount paid as assistance to such family during the month.

Appellee’s reply to appellant’s contentions in this regard is simply that the statute relied on by appellant was not in force and effect at the time of the entry of the judgment herein.

It is to be remembered that the judgment here under attack was signed and rendered on the 21st day of May, 1975.

It is clear from a reading of Section 457 that it is limited to the amounts collected as child support by a state pursuant to a plan approved under this part during the 15 months beginning July 1, 1975. Moreover, the amendment itself provides that such amendment shall become effective on July 1, 1975. Appellant concedes that such amendment has such an effective date, but states that the Act was passed on January 4, 1975, and argues that the amendment clearly evidences a legislative intent that 40 per cent of the first $50.00 of monthly child support payments made for the 15 month period beginning July 1, 1975, should be paid to the family without decrease in the amount paid as assistance to such family during the month, and that the amendment should be effective from the date of passage of the Act. We disagree. We cannot conceive of a clearer mandate of legislative intent than an express provision that such amendment shall become effective on July 1, 1975.

Appellant’s fourth point of error is overruled.

The judgment of the trial court is reformed so as to delete therefrom that portion of such judgment which orders appellant to pay support to herself in the amount of $5.00 per child per week. As so reformed, the judgment is affirmed.

      . Pertinent findings of fact are summarized as follows: (a) Robert M. Carreon and Mary R. Carreon are lawfully married but currently separated; (b) the two children of subject marriage, Leticia and Alex, are living with and in the custody of Mary R. Carreon; (c) since the separation Robert M. Carreon has failed and refused to pay any support or maintenance for Mary R. Carreon and the children; (d) Robert M. Carreon is gainfully employed; (e) Mary R. Carreon has been gainfully employed in the past; (f) under the program known as Aid to Families with Dependent Children, the Texas State Department of Public Welfare contributes an amount of $162.80 per month towards the support of Leticia and Alex Carreon, and of that sum AFDC provides a cash grant of $116.25 per month to Mary, Leticia and Alex Carreon; (g) the sum of $116.25 represents the amount necessary to supply 75% of the recognized needs which are compatible with health and decency by a family of three.

      . Article 695c, Sec. 18-B, was amended in 1975 with the effective date being June 19, 1975. The hereinabove quoted provision relied upon by appellant is not contained in Sec. 18-B, as amended.

      . This amendment, known as the Social Services Amendment of 1974, was passed in January 1975, but did not become effective until July 1, 1975.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Alfred E. FANT, Appellant, v. Fred HOWELL et ux., Appellees.
    No. 12395.
    Court of Civil Appeals of Texas, Austin.
    May 19, 1976.
    Rehearing Denied June 9, 1976.

      J. W. Thomas, Jr., Temple, and Raymond T. Palladino, Waco, for appellant.
    Zollie Carl Steakley, Bowmer, Courtney, Burleson & Pemberton, Temple, for appel-lees.
   O’QUINN, Justice.

Fred Howell and wife, in April of 1961, contracted to sell a tract of land in Bell County to Alfred E. Fant, who under the contract was to have exclusive possession of the land pending final payment of the purchase price of $30,000, at which time Fant was to receive a general warranty deed from the Howells.

The Howells moved from Bell County to Smith County, and Fant went into possession shortly after the contract was executed. The contract described the land by metes and bounds, the description ending with the words, “. . . containing 227 acres of land, more or less. (Sometimes called 252 acre tract).” It is undisputed that at the time the contract was made third persons were in adverse possession of about 33 acres of the land, a fact known to both contracting parties.

Later survey of the property disclosed that the entire tract contained nearly 260 acres of land, and that after subtracting the 33 acres adversely held, nearly 227 acres remained. Upon final payment of the purchase price, Fant demanded a warranty deed to the 33 acres adversely held, as well as the larger portion of the tract. The Howells were willing to deliver a deed with general warranty to approximately 227 acres, but not to the 33 acres in possession of third persons.

Fant brought this suit for specific performance and to require a deed with general warranty to all the land.

In an earlier appeal from a summary judgment in this case, this Court reversed the summary judgment and remanded the cause for further proceedings. 410 S.W.2d 294, Tex.Civ.App., writ dism’d. The prior decision determined only that summary judgment was improperly granted because a fact issue remained as to whether title to the 33 acres had been perfected by adverse possession. In retrial below the parties stipulated that adverse possession had matured and third persons had acquired limitation title to the 33 acres.

In this appeal the Howells take the position that since limitation title ripened only during the period in which Fant was in exclusive possession, Fant was invested with equitable title, so that any enhancement to the property inured to his benefit, and any detriment or loss must also be borne by him. We agree with this contention and will affirm the judgment.

It is undisputed that at the time Fant went into exclusive possession under the contract of sale limitation title had not ripened in the third persons as to the 33 acres and did not mature until about three years thereafter.

It is settled that the purchaser under a contract of sale who goes into possession of the property acquires equitable title and by reason of the right receives any enhancement and must bear any detriment occurring without the fault of seller or purchaser. Leeson v. City of Houston, 243 S.W. 485, 488 (Tex.Comm’n App.1922, jdgmt adopted); Rives v. James, 3 S.W.2d 932 (Tex.Civ.App. San Antonio 1928, writ dism’d). We are aware of authority distinguishing between equitable title and equitable right, but under the facts of this case the distinction is immaterial. See Lynn: Bankruptcy and the Land Sales Contract, 5 Tex.Tech.L.Rev. 677, 681 et seq. (1974). Under the facts of this case Fant, as holder of equitable title or equitable right was entitled to support or defend an action in trespass to try title involving third persons who were not parties to the contract of sale. American Nat. Ins. Co. v. Bass, 111 S.W.2d 769, 771 (Tex.Civ.App. San Antonio 1937, writ dism’d).

Such damages as may have occurred by reason of limitation title maturing in favor of third persons must be borne by Fant as holder of equitable title under the rule of Leeson, supra. The trial court, therefore, properly excluded evidence offered to show an amount of damages.

For the reasons stated, the judgment of the trial court is in all things affirmed.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Robert C. STUART, Appellant, v. HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellee.
    No. 1385.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 19, 1976.
    Rehearing Denied June 9, 1976.

      Winston P. Crowder, Robbins & Crowder, Houston, for appellant.
    Joe Resweber, County Atty., Larry W. Hays, Asst. County Atty., Houston, for ap-pellee.
   J. CURTISS BROWN, Chief Justice.

This is a condemnation case.

In 1961 the Harris County Flood Control District (condemnor or appellee) instituted eminent domain proceedings against Robert C. Stuart (appellant) and others (con-demnees) for the purpose of obtaining an easement for flood control purposes. Special Commissioners were duly appointed and a hearing was held. The award of the Special Commissioners, amounting to $112,-110.00, was filed on August 24, 1961. The condemnees timely filed objections to the amount of the award. On September 5, 1961 the condemnor deposited a sum equal to the amount of the award into the registry of the court. A short time later con-demnee Stuart made application to withdraw his share of the award, $97,110.00. Upon order of the court Stuart did withdraw that portion of the award. In August of 1975 the condemnor filed a motion to strike the condemnees’ objections and to enter judgment on the award. A hearing was held at which Stuart testified. The trial court entered a judgment striking and dismissing the objections of the condemnees and adopting the award of the Special Commissioners as its judgment. The judgment further ordered that all right, title, and interest to the flood control easement be vested in the condemnor. Stuart has perfected this appeal.

The timely filing by either party of objections to a condemnation award serves to vacate the award, and the special condemnation proceedings become a cause pending in the county court, with the con-demnor as plaintiff and condemnee as defendant. Denton County v. Brammer, 361 S.W.2d 198 (Tex.1962). The cause is to be tried and determined as in other civil causes in the county court. Tex.Rev.Civ.Stat.Ann. art. 3266, § 6 (1968). Unless citation is waived it is the duty of those objecting to the award to have citation served on all adverse parties. City of Houston v. Huber, 311 S.W.2d 488 (Tex.Civ.App.-Houston 1958, no writ). Where objections are filed by the condemnee, and the condemnee does not in any way consent to the taking of the property, then the burden of proof on the “whole case” and the burden of going to trial are on the condemnor, while the burden of having citation issued and served and the burden of showing adequate compensation are on the condemnee. Denton County v. Brammer, supra; Fort Worth & D. N. Ry. Co. v. Johnson, 125 Tex. 634, 84 S.W.2d 232 (1935).

However, if the amount of the commissioners’ award is deposited by the condemnor into the registry of the court, then the withdrawal of that money by the condemnee precludes the litigation of any issue except adequate compensation. State v. Jackson, 388 S.W.2d 924 (Tex.1965). Since adequate compensation is an issue on which the condemnee has the burden of proof, such a withdrawal shifts the burden of proof on the “whole case” and the burden of proceeding to trial to the condemnee. City of Austin v. Hall, 446 S.W.2d 330 (Tex.Civ.App.—Austin 1969), rev’d and appeal dism’d per curiam, 450 S.W.2d 836 (Tex.1970). The condemnees had withdrawn the funds in this case, and therefore had the burden of proceeding to trial with due diligence as well as the burden of having citation issued and served.

In the instant case the condemnor’s motion to strike the condemnees’ objections to the award was the equivalent of a motion to dismiss for want of prosecution. The proper procedure for reviewing a dismissal for want of prosecution was summarized by then Chief Justice Calvert in his dissenting opinion in Denton County v. Brammer, supra. After reviewing the cases of Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957) and Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489 (1942), Judge Calvert stated:

“One who files a judicial proceeding owes a duty to prosecute it with due diligence. When a motion to dismiss a proceeding on the ground of abandonment is filed, the trial court must first determine whether the proceeding has been on file, without action, for an unreasonable length of time. If it has not, the motion should be overruled summarily. If it has, a rebut-table presumption of abandonment arises, and an opportunity should be afforded the party who filed the proceeding to prove, if he can, that he had good reason for his delay in prosecuting the proceeding. If he fails or refuses to offer proof, or if the proof offered fails to show good reason for the delay, the presumption is not rebutted and becomes conclusive, and the motion to dismiss should be granted. If proof is offered and does show good reason for the delay, the presumption is rebutted and the motion should be overruled. Whatever may be the action of the trial court, and at whatever stage it is taken, it is to be taken in the exercise of sound judicial discretion and is erroneous only if it is so arbitrary as to constitute an abuse of discretion.” 361 S.W.2d at 202-03.

This procedure has been adopted as the law by numerous courts of civil appeals. See Missouri Pacific R.R. Co. v. Liberty County Water Control & Improvement District No. Six, 483 S.W.2d 50 (Tex.Civ.App.-Beaumont 1972, writ ref’d n. r. e.); Lowe v. City of Arlington, 470 S.W.2d 206 (Tex.Civ.App. —Fort Worth 1971, writ ref’d n. r. e.); Moss v. State, 361 S.W.2d 408 (Tex.Civ.App.—Eastland 1962, no writ).

The above procedure outlined by Judge Calvert was followed in the present case. The motion to dismiss did not allege the failure of the condemnee to have citation issued and served, but it did allege that the cause had been pending for fourteen years. The trial court considered this an unreasonable length of time, and a rebut-table presumption of abandonment — or lack of due diligence — arose. The court correctly ordered a hearing to afford the party who had the burden of proceeding to trial (here the condemnee) an opportunity to prove good reason for the delay. The court concluded that the proof offered by the condemnee failed to show good reason for the delay, whereupon the presumption of abandonment — or lack of due diligence — became conclusive. In the exercise of its sound judicial discretion the court ordered the objections stricken and entered judgment on the award. See Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930 (Tex.1975). It is settled that even though a condemnation award is vacated by the action of the condemnee in filing his objections, it may be reinstated upon the abandonment of his appeal. Smith v. State, 388 S.W.2d 291 (Tex.Civ.App.— Houston 1965, writ ref’d n. r. e.).

At the hearing on appellee’s motion to dismiss, appellant presented some evidence tending to show that he did not intend to abandon his appeal. However, it has been held that an intent to abandon is not a part of the test for a trial court to apply in passing on a motion to dismiss for want of prosecution. Missouri Pacific R.R. Co. v. Liberty County Water Control & Improvement District No. Six, supra. From our inspection of the record, we can not find that the trial court abused its discretion. Therefore the judgment of the trial court is affirmed.

Affirmed.


author: JAMES, Justice.

text:
    The STANDARD FIRE INSURANCE COMPANY, Appellant, v. Betty Y. RATCLIFF, Appellee.
    No. 5554
    Court of Civil Appeals of Texas, Waco.
    May 20, 1976.

      Bailey, Williams, Westfall, Lee & Fowler, C. Edward Fowler, Jr., Dallas, for appellant.
    Frank R. Jewell, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a workman’s compensation case. Plaintiff-Appellee Betty Y. Ratcliff recovered judgment against Defendant-Appellant Standard Fire Ins. Co. for total loss of use of her right leg, at the rate of $63.00 per week for a period of 200 weeks, and in addition thereto $1874.95 for medical and hospital expenses related to the care and treatment of her injury. From this trial court’s judgment Appellant Standard Fire appeals. We affirm.

Trial was had to a jury, which found:

(1) That Plaintiff sustained an injury to her right knee during March and April 1974;
(2) In the course of her employment with Robert R. Michlin, Inc.;
(3) Which injury was a producing cause of any total loss of use of her right leg;
(3A) The beginning date of such total loss of use was April 9, 1974;
(3B) The duration of such total loss of use of her right leg was permanent;
(4) The jury failed to find that such injury was a producing cause of any partial loss of use;
(5) That payment in any manner other than a lump sum will result in manifest hardship and injury to Plaintiff;
(6) That medical care was reasonably required by Plaintiff as a result of such injury;
(7) That Defendant carrier failed to furnish within a reasonable time medical care required by Plaintiff as result of such injury;
(8) That $2210.00 was the reasonable cost incurred by Plaintiff for such medical care; and
(9) The loss of use of Plaintiff’s right knee was not caused solely by pre-existing conditions.

Based upon the jury verdict, the trial court awarded Plaintiff Ratcliff judgment against Defendant Standard Fire in the sum of 200 weeks at $63.00 per week from and after April 9, 1974, payable in lump sum, and in addition thereto the sum of $1874.95 for the above described medical expense, plus interest and costs, from which judgment Defendant appeals.

By its first seven points of error, Defendant-Appellant attacks Special Issues Nos. 6, 7, and 8, and the jury’s answers thereto. In answer to Special Issues 6, 7, and 8, the jury found that medical care was reasonably required by Plaintiff as a result of injury sustained while in Michlin’s employ; that Appellant failed to furnish that medical care, and that Plaintiff incurred medical expenses pertaining to the injury in the amount of $2210.00. The trial court reduced this $2210.00 figure to $1874.95 (the amount prayed for in Plaintiff’s pleadings) and awarded judgment for this latter amount for such medical expenses.

Appellant asserts the trial court erred in submitting Special Issue No. 6, (that medical care was reasonably required) saying that Plaintiff-Appellee testified that she did not incur any medical expenses; that there is no evidence and insufficient evidence to support the jury’s answer to Special Issue No. 7 (that Defendant failed to furnish medical care within a reasonable time); and that there is no evidence and insufficient evidence to support the jury’s answer to Special Issue No. 8 (that the reasonable cost of medical services was $2210.00). We overrule these contentions.

Plaintiff Ratcliff was a sewing machine operator who first suffered a compensable injury to her right knee in August 1972 which necessitated surgical repair on October 13, 1972, and then a second surgery on June 1, 1973. After the second surgery of June 1, 1973, Plaintiff’s leg markedly improved and she returned to work for the predecessor of Defendant’s subscriber, operating a sewing machine which did not require the use of her right leg. In December, 1973, Defendant’s subscriber, Robert R. Michlin, acquired the then employer of Plaintiff, to wit, Color Compliment. In March 1974, Plaintiff was transferred to another sewing machine which required that she use her right knee to push against a lever to operate certain functions of the sewing machine. Shortly after being transferred to the new machine, Plaintiff began to experience pain and swelling in the area of her right knee where the knee pressed against the lever.

Plaintiff testified that as she continued to work, and especially during March and April 1974, her knee was markedly swollen, inflamed, discolored and painful, and she began to limp. On April 8, 1974, Plaintiff reported her condition to the plant supervisor and went to see Dr. J. R. Watson, the orthopedic surgeon who had twice before operated upon her right knee. Dr. Watson treated her knee and she then returned to her place of employment with a letter from Dr. Watson which she gave to the plant supervisor. After that time, Plaintiff discontinued working and she had not worked since.

On May 6, 1974, Plaintiff underwent surgery (for the third time) to her right knee, necessitated by the repetitious physical trauma caused by pressing her knee against the sewing machine lever. Dr. Watson testified that her condition of disability is permanent; that as regards activity which would require her to “stoop and lift and bend and use the right knee in doing the usual tasks of a workman, she would do much better to find something which causes less strain on her knee”. He further stated that should she return to physical activity using her knee that, “Her knee would probably deteriorate faster if she did so”, and that if she were asked about such matters by a prospective employer, he would advise that, “ . . . she (Appellee) would run into problems if she went back to that type of work.”

Plaintiff sought compensation benefits under the provisions of Article 8306, Section 20, Vernon’s Annotated Civil Statutes, defining “Injury” to be construed to mean and include “Occupational Disease,” which is defined therein as:

“. . . damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment;

In addition thereto, Plaintiff sought recovery of the surgery of Dr. Watson relating to such “Injury” and the hospitalization for such surgery under the provisions of Article 8306, Section 7, V.A.C.S., which provides that:

“The employee shall have the sole right to select or choose the persons or facilities to furnish medical aid, chiropractic services, hospital services, and nursing and the association shall be obligated for same . .

After being unable to continue working, and in accordance with the directions of Dr. Watson, that she refrain from work, Plaintiff reported her injury to the plant supervisor, Mickey Smith.

Plaintiffs medical expenses were paid by a third party, to wit, International Insurance Company, and none of same was paid by Plaintiff. Dr. Watson testified that the hospitalization and surgery were necessary, and that the charge for his services in the amount of $950.00 was reasonable, and that his services were causally related to the injury sustained by Plaintiff while in the service of her employer. Mr. Beaman, Assistant Business Manager of Methodist Hospital, established that the hospital services rendered to Plaintiff in the amount of $924.25 were reasonable.

Defendant-Appellant urges that Plaintiff’s recovery of the $1874.25 should be eliminated and deleted because the undisputed evidence shows that Plaintiff did not pay these medical bills, they having been paid by International Insurance Co., an insurance carrier for Plaintiff’s employer. Defendant-Appellant contends that Plaintiff will be unjustly enriched if she is permitted to recover these medical expenses.

Moreover, Defendant-Appellant introduced into evidence the following interrogatory Number 28, served upon Plaintiff under Rule 168, Texas Rules of Civil Procedure, together with Plaintiff’s answer thereto:

“Please give an itemized list of all expenses incurred by you since the date of the alleged accident which is the basis of this lawsuit, for medical care, hospital and doctor bills, nurses, drug expense, ambulance bills which you claim were necessitated by such alleged accident.

“Answer: None since all paid by International Insurance Co.”

Defendant-Appellant argues that the foregoing answer by Plaintiff constitutes an admission by Plaintiff that she incurred no medical expense, that there is no fact issue presented thereby, and that she is therefore barred from recovery of such medical expenses. We do not agree.

Article 8306, Section 7, by the language hereinabove quoted, places the obligation upon the insurer to provide medical services for the employee. See Transport Insurance Co. v. Polk (Tex.1966), 400 S.W.2d 881.

Our Supreme Court has stated the rule governing the medical expenses in the case at bar as follows:

“. . . when a claimant has notified the carrier of an injury, the carrier has the duty to move to furnish whatever aid is necessary as a consequence of that injury and the claimant need not make a special request for each item of expense.” Texas Employers Ins. Ass’n v. Chappell (Tex.1973), 494 S.W.2d 159.

The only notice the statute requires is notice of injury. It does not require specific notice of a claim for medical services; nor is a request for such services required as a condition precedent to the insurance carrier’s responsibility. Trinity Universal Ins. Co. v. Farley (Tyler Tex.Civ.App.1966), 408 S.W.2d 776, no writ; Texas Employers Ins. Ass’n v. Steadman (Amarillo, Tex.Civ.App.1967), 415 S.W.2d 211, NRE; Standard Fire Ins. Co. v. Simon (Dallas, Tex.Civ.App.1971), 474 S.W.2d 530, no writ. In the case at bar, Plaintiff gave notice of injury on April 8, 1974, followed up by a letter from Dr. Watson, and then had surgery on May 6, 1974. There is ample evidence under this record to support the jury’s answer to Special Issues Nos. 6, 7, and 8, that is, that Defendant-Appellant failed to furnish medical care to Plaintiff within a reasonable time, in the amount of $1874.95 (the amount allowed by the trial court’s judgment).

Appellant’s argument that Plaintiff’s claim for medical expenses was defeated because they were paid by International Insurance Co., a third party, is without merit. The rule is well established in workmen’s compensation cases that where the claimant’s medical expenses were paid by a third party, the claimant is not deprived of his right to recover the value of such services by the workmen’s compensation carrier. Cooper v. Argonaut Ins. Co. (Dallas, Tex.Civ.App.1968), 430 S.W.2d 35, NRE (wherein the medical services were furnished by Medicare); Northwestern National Ins. Co. v. Kirchoff (Houston, Tex.Civ.App.1968), 427 S.W.2d 638, no writ (wherein the medical services were paid by group insurance carried by claimant’s employer).

The above rule announced and applied in Cooper and Kirchoff is closely akin to the “collateral source” rule applied in cases other than workmen’s compensation, which rule was applied in the following cases: Texas Power and Light Co. v. Jacobs (Waco, Tex.Civ.App.1959), 323 S.W.2d 483, NRE (gratuitous medical services furnished plaintiff by Veterans Administration); American Cooperage Co. v. Clemons (Fort Worth, Tex.Civ.App.1963), 364 S.W.2d 705, NRE (wherein plaintiff, a city employee, was furnished medical expenses paid for by the city); Edmondson v. Keller (Austin, Tex.Civ.App.1966), 401 S.W.2d 718, no writ (wherein plaintiff had his medical expenses paid by the “medical payments” portion of defendant’s automobile policy); and Sparks v. Dalton (Fort Worth, Tex.Civ.App.1970), 458 S.W.2d 836, no writ (wherein plaintiffs had their medical expenses paid by the “medical payments” portion of defendant’s automobile policy).

Lastly, with reference to Defendant-Appellant’s contention that Plaintiff’s answer to Interrogatory No. 28, hereinabove quoted, that she had incurred no medical expense, since paid by International Insurance Company: this argument is without merit. This Interrogatory No. 28 was propounded to Plaintiff under Rule 168 (Interrogatories) and not under Rule 169 (Admissions). Without detailing the differences between these two rules, suffice it to say that an interrogatory propounded under Rule 168, and answer made in response thereto by a party, is not to perform the function of, or have the effect of an admission under Rule 169. Ford Motor Co. v. Draper (Texarkana, Tex.Civ.App.1966), 401 S.W.2d 848, no writ; Travelers Ins. Co. v. Wyatt (Texarkana, Tex.Civ.App.1972), 488 S.W.2d 897, no writ.

In the case at bar, Plaintiff answered Interrogatory No. 28, concerning incurring of medical expenses: “None, since all paid by International Insurance Co.” By this answer she gave an explanation as to how the expenses were paid and why she had not personally incurred them, which under this record would not in any way constitute an admission that would bar her recovery for these expenses. Appellant’s points one through seven are overruled.

By points eight, nine, and ten Defendant-Appellant asserts the trial court failed to submit the statutory definition of injury, accidental injury, and occupational disease. We overrule these contentions. The trial court in its charge defined “Injury” in the language which sets out a definition of “Occupational Disease” in Article 8306, Section 20, V.A.C.S. The charge defined “Injury” as “damage or harm to the physical structure of the body occurring as a result of repetitious physical traumatic activities extending over a period of time and such diseases or infection as naturally result therefrom or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.” Section 20 specifically provides that the term “Injury” includes “Occupational Disease.” By the jury’s answer to Special Issue No. 2, Plaintiff’s injury was limited ,to having been sustained in the course of her employment, as that term was defined in the court’s charge. Plaintiff pleaded, and the proof showed, that her injury was caused by repetitious physical traumatic activities which took place in the course of Plaintiff’s employment, that is, by her having to constantly and repeatedly press her right knee against the lever of the sewing machine. Rule 277 T.R.C.P., provides: “In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict . . . Under the definitions and special issues submitted by the trial court to the jury, we hold that the requirements of Rule 277 were complied with. See Employers Commercial Union Ins. Co. v. Schmidt (Eastland, Tex.Civ.App.1974), 509 S.W.2d 398, writ refused, NRE, by the Supreme Court in 516 S.W.2d 117. Appellant’s points eight, nine, and ten are accordingly overruled.

By points eleven through sixteen, Appellant attacks the jury’s findings that the injury on or about April 8, 1974, was a producing cause of the loss of use of Plaintiff’s right leg. We overrule these contentions in the light of this record. We have hereinabove detailed enough of the evidence which in our opinion shows the legal and factual sufficiency of the evidence to support the jury’s answers to Special Issues 3, 3A, and 3B.

By Appellant’s seventeenth and last point it is contended the trial court erred in submitting Special Issue No. 1 (“Did Plaintiff sustain injury to her right knee during March and April 1974?”), arguing that the same was not definite in nature and did not inquire as to a date certain. We overrule this point. Occupational disease is an exception to the rule that there must be proof of “an undesigned, untoward event traceable to a definite time, place, and cause.” Olson v. Hartford Accident and Indemnity Co. (Tex.1972), 477 S.W.2d 859, 860; Hartford Accident and Indemnity Co. v. Contreras (Houston, Tex.Civ.App.1973), 498 S.W.2d 419, NRE.

We have carefully considered all of Appellant’s points and contentions. All are overruled. Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: SPURLOCK, Justice.

text:
    James W. MILLER, d/b/a A & A Construction Company, Appellant, v. Joe PATTERSON, d/b/a Joe’s Sand & Gravel & Excavating, Appellee.
    No. 17714.
    Court of Civil Appeals of Texas, Fort Worth.
    May 21, 1976.

      John H. Chambers, Arlington, for appellant.
    Meier, Keith & Adams, and Darrell L. Keith and Stephen T. Meeks, Euless, for appellee.
   OPINION

SPURLOCK, Justice.

Joe Patterson, doing business as Joe’s Sand & Gravel & Excavating, hereinafter referred to as plaintiff, brought this suit in the nature of a sworn account for material sold and delivered to James W. Miller, doing business as A & A Construction Company, hereinafter referred to as defendant. Defendant denied that he had received all the material for which plaintiff sued. Defendant brought a cross-action claiming that he had paid for more material than was delivered. Plaintiff obtained a favorable jury verdict and defendant appealed from the resulting judgment.

We affirm.

Defendant was the prime contractor for the construction of one section (the first 17 miles) of a water pipeline which was being laid for the Tarrant County Water Control and Improvement District No. 1 in the early 1970’s. Defendant subcontracted orally with plaintiff for the latter to provide the “bedding” sand for this section. The sand in question was placed in the open trench to a minimum depth of 6", per specifications, in order to cushion the pipe as it was laid and to provide stability after the trench was refilled.

The cost of the sand was based on the price per cubic yard multiplied by the number of cubic yards delivered during the billing period. The price per cubic yard started at 95$ and increased each four miles, apparently because the trip time of each truck became longer as the distance between the loading site and the job site increased.

Plaintiff began delivering the sand in March, 1971, and made his last delivery on February 28, 1972. His records reflect that he had delivered 33,516 cubic yards through November, 1971, and was paid $46,319.00 for that amount of sand. His records also reflect that during the months of December, 1971, through February, 1972, he delivered an additional 5,853 cubic yards which were billed at the rate of $1.90 per cubic yard and for which he alleged no payment had been made.

On the refusal of defendant to pay for the January-February deliveries, plaintiff brought suit to recover the balance due of $11,120,70; defendant counterclaimed on the theory that he had actually overpaid plaintiff since he had not received all of the sand for which he paid, much less the amount represented by the billing on which plaintiff brought suit. The jury found that plaintiff sold and delivered to defendant sand of the value of $11,120.40 for which he had not been paid and that defendant did not pay for more sand than was delivered.

By his first point defendant complains of the trial court’s error in admitting into evidence certain instruments styled “delivery tickets” which were the basis of plaintiff’s proof that he had delivered the sand in question. Defendant complains that many of these tickets are not admissible because they were not completed “at or near the time of the act, event, or condition or reasonably soon thereafter,” and therefore do not qualify as exceptions to the hearsay rule as being business records under Article 3737e, V.A.T.S. We disagree.

Defendant contends that the loading supervisor for plaintiff had made out individual tickets for each load but that after the first 8 miles of pipeline this method was changed and the owner drove a truck personally and no one was on the loading rack to make the individual tickets at the time the sand was loaded. After the change was made the owner at the end of the day, from his observation of the other truck drivers, would make out the other delivery tickets. During the day he would make some notes and from these notes at the end of the day he would then make out the delivery tickets.

Article 3737e, V.A.T.S., the Business Records Act, provides as follows:

“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
“(a) It was made in the regular course of business;
“(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
“(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.” (Emphasis ours.)

Defendant emphasizes the words, “at or near the time of the act.” Subsection (c) also provides that such records may be made reasonably soon after the time of the act or event.

It is our opinion that “delivery tickets” or “delivery slips” made in the regular course of business and addressed to the party receiving the materials delivered and which tickets are signed by a representative of the party receiving the materials are admissible to prove sale and delivery of the materials to such party in the regular course of the materialman’s business. Security Lumber Co. v. Weighard Construction Co., 413 S.W.2d 745 (Tex.Civ.App., Texarkana, 1967, affirmed, 423 S.W.2d 287, Tex.Sup., 1967).

With few exceptions these delivery tickets were signed by employees of the defendant within one to two days after the delivery of the sand. They were signed by defendant’s brother, who was defendant’s employee, or by defendant’s foreman, Mr. Tater. The record reflects that these employees had authority to initial the delivery tickets indicating that the merchandise had been received.

The record further reflects that invoices were prepared from the delivery tickets, which invoices were admitted into evidence without objection. Such invoices were compiled from the delivery tickets of which admission in evidence defendant now complains.

If any error was committed in the admission of the delivery tickets into evidence, such error was waived by the same evidence being admitted before the jury without objection when the invoices covering the same subject matter were admitted. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103 (1917); Kincheloe v. Houston Fire & Casualty Insurance Co., 289 S.W.2d 833 (Tex.Civ.App., Texarkana, 1956, no writ hist.).

Point of error No. 1 is overruled.

Point of error No. 2 asserts the trial court erred in admitting into evidence photographs of a section of the pipeline construction other than the section here involved.

Plaintiff offered into evidence Exhibits Nos. 21-26, both inclusive. These are photographs of a section of the pipeline taken while it was being constructed showing the ditch, sand, and pipe. Plaintiff asked the witness if these photographs were substantially the same or the similar presentation of what the pipeline looked in Section 1 during construction. The witness answered, “except the pipe is a little larger.” Defendant objected because it was not identical to the one involved. The court then asked the witness the following:

“THE COURT: Mr. Patterson, as I understand it, although these photographs don’t portray any part of Section 1, they do show an operation that was substantially the same?
“A. Yes, sir. That is right.
“THE COURT: Except for the size of the pipe?
“A. That’s right, sir.”

In 2 Texas Law of Evidence, McCormick & Ray (1956 ed.), “Demonstrative Evidence”, Section 1465, “Photographs and Motion Pictures”, p. 319, the general rule is stated as follows:

“It is said that photographs stand upon much the same footing as maps, models and plans. Whenever a photograph portrays any facts relevant to an issue in the case it is admissible in evidence provided it is first verified by a witness as being a correct representation of such facts.
“ . . . What is essential is that he knows the scene or object involved and be able to state that the photograph correctly represents the facts. With this foundation the photograph comes in as demonstrative evidence to explain the testimony of the witness.”

As a general rule the trial court has wide discretion concerning the admissibility of photographs. In general the sole question is whether or not the court abused its discretion.

In Texas Employers Ins. Ass’n v. Agan, 252 S.W.2d 743 (Tex.Civ.App., Eastland, 1952, ref.) that court stated:

“ ‘The fact that there have been changes in conditions, including even substantial changes, will not necessarily exclude a photograph where the changes can be and are explained, so that the photograph, as explained, will give a court understanding of the condition existing at the time to which the controversy relates, and be practically instructive.’ 32 C.J.S., Evidence, § 715, p. 623.
“ ‘ * * * slight changes will not render the photographs inadmissible and the court has considerable discretion as to the admission of photographs notwithstanding the change.’ 9 A.L.R.2d 907, § 4.”

It is our opinion that such photographs were admissible.

This point is overruled.

Defendant by his third point of error states the award of attorney’s fees in this case was excessive.

Defendant contends that plaintiff was awarded attorney’s fees not only for the prosecution of his case but also for the defense of the cross-action. The award of attorney’s fees was excessive to the extent of the amount incurred in defending the cross-action.

Plaintiff admitted that he had been paid for all the sand delivered except for the deliveries between December, 1971, through February, 1972. Defendant answered that he did not owe any sum for this period of time or any sum because plaintiff had been overpaid for sand delivered on the entire project. This answer then made it incumbent upon plaintiff to assume the extra burden of proving the amount of sand he had delivered from the beginning of the job. This necessitated additional investigative and pre-trial work and caused the trial to consume 6 days. Plaintiff, in proving his cause of action, automatically defended defendant’s cross-action which only claimed that plaintiff had been paid for more sand than was actually delivered.

It is our opinion that the entire amount of legal expense was incurred in connection with the prosecution of plaintiff’s cause of action because of the nature of the answer filed.

The attorney for the plaintiff testified that he had prepared an accurate record of the time spent in the case and that the value of his services was $50.00 per hour. Plaintiff then offered into evidence plaintiff’s Exhibit No. 51, being a true, correct and accurate record of the time that the attorney spent in this case. The defendant objected to it as being a “self-serving instrument, and really, his testimony can establish the same facts”. This objection was overruled and the exhibit was admitted into evidence.

This was the only objection made to the admission of the exhibits or any of the evidence relating to the reasonable value of the necessary services rendered to the plaintiff by his attorney in connection with the preparation and trial of this case.

The judgment submitted to the jury Issue No. 3:

“What sum of money, if any, do you find from a preponderance of the evidence would reasonably compensate plaintiff Joe Patterson’s attorney, Darrell L. Keith, for his necessary services rendered to plaintiff Joe Patterson up to and including his services in the trial in this Court?” The jury answered: “$7,975.00”.

Defendant did not object to the submission of this issue and the language used in connection therewith. Defendant did not request an instruction to be given to the jury in connection with said issue instructing the jury not to consider any fees incurred in connection with the defense of the cross-action.

Rule 274, T.R.C.P., “Objections and Requests”, provides in part:

“A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.”

Defendant made no objection or request for instructions as indicated above. He cannot make such objection or complain of such action for the first time in a motion for new trial or upon appeal. Stroud v. Bridges, 275 S.W.2d 503 (Tex.Civ.App., Texarkana, 1955, ref., n. r. e.).

The rule here applicable is stated in 4 McDonald Texas Civil Practice (1971 ed.), “New Trial”, Section 18.15, “G. Verdict Excessive or Inadequate”, p. 279, as follows:

“ . . .A complaint by the party aggrieved that the verdict sets the damages at a sum either too large or too small is but a special example of the contention that findings are supported by insufficient evidence or are contrary to the great weight and preponderance of the evidence. It would seem advisable to include the appropriate complaint in every motion for new trial which attacks a jury finding on the amount of unliquidated damages, since the contention, when established, may lend emphasis to the probable prejudice of other errors. But when the contention is that the court erred in allowing the jury to consider items not properly to be taken into account in fixing damages, the complaint is directed to a mistake in the charge, . . . .” (Emphasis ours.)

Defendant did not assign as error that the jury’s answer to said issue was against the great weight and preponderance of the evidence.

It is our opinion that this asserted error was not properly preserved.

Defendant’s point of error No. 3 is overruled.

Defendant by his fourth point of error asserts the court erred in not granting defendant’s motion for judgment non obstan-te veredicto.

Defendant did not assign a “no evidence” point nor “against the great weight of the evidence” point in his motion for new trial. He assigned neither of these points on appeal.

Defendant’s amended motion for new trial, paragraph No. V, states: “The Court erred in not granting the Defendant’s Motion for Judgment Non Obstante Veredicto because the verdict of the Jury was against the weight of the evidence.” (Emphasis ours.)

Defendant’s complaint is that the court should have granted judgment for the defendant. The reason he gives for this is that the jury’s verdict was against the great weight of the evidence.

Rule 301, T.R.C.P., provides “ . upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. . . ."

Defendant in his motion for judgment non obstante veredicto alleges four grounds for the granting of same: (1) the quantity of sand used was below that claimed by the plaintiff, (2) the delivery tickets had a multiplicity of dates, (3) plaintiff’s credibility was substantially questionable, (4) defendant paid for more sand than was used.

Defendant filed neither a motion to disregard any special issue jury finding, nor an objection to submission of the vital fact issue.

Defendant concluded his motion for new trial as follows: “WHEREFORE, PREMISES CONSIDERED, the Defendant moves that the Court set aside the judgment heretofore entered in this cause and grant a new trial.” Defendant did not request the court to render judgment for defendant.

As indicated above a judgment non obstante veredicto may be rendered “if a directed verdict would have been proper.” A directed verdict is not justified because of factually insufficient evidence. A factually insufficient evidence point must be raised in a motion for new trial. Smith v. Texas Pipeline Company, 455 S.W.2d 346 (Tex.Civ.App., Corpus Christi, 1970, ref., n. r. e.); 38 Texas Law Review, p. 361, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, by Robert W. Calvert; Rules 324, 374, T.R.C.P.

See also 4 McDonald, Texas Civil Practice (1971 ed.), “Judgments, Sec. 17.32, “(d) Judgments Under Rule 301”, p. 207, where it is stated: “And Rule 301 does not allow the rendition of a judgment non obstante veredicto when the verdict, or the particular findings challenged, though having support in the evidence, is contrary to the preponderance of the evidence.” See also Republic Bankers Life Ins. Co. v. Herring, 463 S.W.2d 743 (Tex.Civ.App., Waco, 1971, no writ hist.).

The jury’s findings were each supported by evidence of probative value in the record. It would have been improper for the trial court to have directed a verdict for the defendant. Therefore, it was not error to refuse to grant a judgment for defendant non obstante veredicto.

If we assume that the defendant properly raised the point that the jury’s verdict was against the great weight and preponderance of the evidence, then that point is overruled because the jury’s verdict is supported by the evidence.

This point is overruled.

Judgment affirmed.


author: PER CURIAM. SEILER, Chief Justice BARDGETT, Judge

text:
    In the Matter of the ESTATE of Doctor Harold PASSMAN, Deceased. The CITY NATIONAL BANK AND TRUST COMPANY, Executor, Appellant, v. Natalie GRAVES, Respondent.
    No. 59275.
    Supreme Court of Missouri, En Banc.
    May 5, 1976.
    Rehearing Denied June 14, 1976.

      Jerome T. Wolf and Edward A. Setzler, Spencer, Fane, Britt & Browne, Kansas City, for appellant.
    James W. Jeans, Kansas City, Lantz Welch, Kansas City, for respondent.
   PER CURIAM.

This cause was transferred from the Court of Appeals, Kansas City District, to reconsider whether or not the standard burden of proof instruction, MAI 3.01, would adequately instruct a jury as to the burden placed on a party claiming an inter vivos gift after the death of the alleged donor. After reargument in this court, we agree with the Court of Appeals that it would not; and, that the admonition found in the Committee’s Comment following MAI 3.01 that “This instruction is not to be used in those rare cases where the proof must be ‘clear, cogent and convincing’ ” is consistent with the law as established in this state and must be followed. The opinion of Turnage, J., provides an accurate review of the relevant law as declared by this court and follows the dictates thereof by directing that: “On retrial, MAI 3.01 should be modified to include at the appropriate place a statement that the evidence must be clear, [cogent] and convincing proof to convince the jury beyond a reasonable doubt.” (Emphasis added.) As noted therein, the italicized words — “beyond a reasonable doubt” —have been challenged as inappropriate to instructions in a civil case. This court is at liberty to recognize such criticism and correct what perhaps has been an erroneous approach to the problem. From this time forward, the phrase should not be used in instructions in civil cases. As modified, the opinion of Turnage, J., is adopted as the opinion of this court; which, without benefit of quotation marks, is as follows:

This case originated in the Probate Court of Jackson County with the filing by City National Bank & Trust Company (Bank), the executor of the estate of Dr. Harold Passman, of an affidavit for the discovery of assets against Natalie Graves (Graves).

Pursuant to the statutory procedure, the Bank filed interrogatories and Graves filed answers. This resulted in defining the property in controversy to be $15,000 in Sheraton Hotel Bonds, $20,000 in Southeastern Oklahoma Development and Gas Authority Bonds, together with a sofa and air conditioner. By answer to one of the Bank’s interrogatories, Graves claimed she had given $5,000 in Sheraton Hotel Bonds to Dr. Passman for the purpose of selling the same and reinvesting in other bonds, but she had not received the bonds or cash from this transaction and thereby the estate was indebted to her in the sum of $4,022, which was the proceeds of the $5,000 bond after sale expenses.

The Probate Court found the issues in favor of the Bank and Graves appealed. On trial de novo to a jury in the circuit court, the jury returned a verdict in favor of Graves finding she was the owner of the $15,000 Sheraton Bonds, the $20,000 Southeastern Oklahoma Bonds, the sofa, the air conditioner, and was entitled to the $4,022 proceeds of the sale of the $5,000 Sheraton Bond. The Bank has appealed from the judgment entered on this verdict.

The evidence showed Dr. Harold Passman was a physician practicing in Kansas City, Missouri, who had been married to his wife, Louisa, for over twenty-five years. He had been married previously and had children by that marriage, but by his marriage to Louisa had two sons. In 1966 Graves became a patient of Dr. Passman and shortly thereafter was employed by him as a medical assistant. At about the same time Dr. Passman and Graves entered into a relationship which transcended the employer-employee status with the result that in October, 1967, Dr. Passman moved into Graves’ house and lived there until his death in August, 1969.

In 1968 Dr. Passman rented a safety deposit box at the Wornall Bank in which he was listed as the owner with Graves as a deputy. About four months thereafter the ownership of this box was changed to show Graves as the owner and Dr. Passman as the deputy.

Graves testified in the Probate Court that Dr. Passman had given her the Sheraton Bonds in April or May, 1969. Betty Roth, an aunt of Graves, testified she was visiting Graves during the months of April and May of 1969 and observed that Dr. Passman was living there. She stated she confronted Dr. Passman and inquired as to what he was going to do for Graves and he stated he had given her $20,000 worth of bonds. In circuit court Graves testified the gift of the Sheraton Bonds must have been made on January 2, 1969, since that was the last recorded entry into the box prior to April or May. Graves testified Dr. Passman took the bonds from the safety deposit box at the time of the gift and stated he was giving them to her and she accepted them as a gift. She stated at that time she did not know the value of the Sheraton Bonds or the number of bonds actually given to her. Other evidence showed that on January 2, 1969, $5,000 of the Sheraton Bonds were in the custody of the Bank as a result of a pledge of such bonds by Dr. Passman as security for a loan. That loan was paid in March of 1969 and the $5,000 Sheraton Bonds were returned to Dr. Passman.

Graves testified that on another entry into the box in May, 1969, Dr. Passman again told her he was giving her the bonds and wanted her to have them. The bonds involved at this time were the Sheraton Hotel Bonds.

She further testified on July 1, 1969, she and Dr. Passman went to the box and clipped $750 in coupons from the bonds which she gave to Dr. Passman. In June, 1969, Dr. Passman purchased the $20,000 Southeastern Oklahoma Bonds and Graves testified these were delivered to him by his broker. She testified after the broker left the bonds, Dr. Passman told her he was giving these bonds to her and she stated she accepted them. These bonds were placed in the safety deposit box with the Sheraton Bonds. Both the Sheraton and Southeastern Oklahoma bonds were bearer bonds.

Both Graves and Arthur Stoup, Dr. Pass-man’s attorney, testified that Graves and Dr. Passman visited Mr. Stoup just a week prior to the doctor’s death. Dr. Passman told Mr. Stoup he wanted to change his will in order to cut out his wife so that he could leave everything to his two children. Mr. Stoup advised the doctor it was impossible to cut Louisa completely out of his will. Since Mr. Stoup was leaving on vacation, nothing was done concerning the will and the next week Dr. Passman died. The will in effect at the time of Dr. Passman’s death left his property in trust for his wife Louisa, with the property ultimately passing to his two sons.

Shortly before his death, Dr. Passman gave an order to his broker to sell $5,000 of the Sheraton Bonds and to purchase tax exempt bonds. After Dr. Passman’s death, the tax exempt bonds were sold by the broker and $4,022 remained from this sale after the expenses. This amount was given to the Bank as part of the assets of the estate of Dr. Passman.

Graves’ testimony was corroborated to the extent of the $20,000 Sheraton Bonds by the deposition of her aunt, Betty Roth. The Bank produced Louisa Passman and her two sons and Dr. Passman’s brother who all testified they had had numerous conversations with Dr. Passman and he never made any statement concerning any gifts to Graves. All of them were aware of Dr. Passman’s relationship with Graves.

On this appeal the Bank complains first of the giving of MAI 3.01, the conventional burden of proof instruction. The Bank contends that since this case involved an inter vivos gift which was first claimed after the death of the donor, the court should have given an instruction to the effect that the proof of the gift must be clear, cogent and convincing which must exist beyond a reasonable doubt. The Bank relies upon a number of cases which have held the burden of proof and type of evidence to be as the Bank contends in this kind of case. Among these cases are Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563 (1927); Cremer v. May, 223 Mo.App. 57, 8 S.W.2d 110 (1928), and In re Petersen’s Estate, 295 S.W.2d 144 (Mo.1956). Those cases indicate, as stated in Petersen, “. . . that where a gift is not asserted until after a donor’s death, it is viewed with some suspicion, and the requirement of clear and convincing proof to establish it is particularly applicable.” 295 S.W.2d 144, 1. c. 150[8-10].

In Morley the court set out a number of instructions which were given to the jury in a case in which an inter vivos gift was first claimed after the death of the donor. The burden of proof instruction in that case told the jury, “ ‘[t]he defendant must not only prove to your satisfaction and beyond a reasonable doubt and by evidence clearly unequivocal . . .”’295 S.W. 567[2], The court further stated at that same page, “[t]he instructions given show that the jury was fully directed as to the proof required to establish a gift and cautioned that, to justify a verdict for the defendant, they must be convinced beyond a reasonable doubt of the existence of the elements which make a valid gift.”

Morley is the last case which has been cited or located in which the Supreme Court has passed upon an instruction to the jury in a case involving a gift first claimed after the donor’s death.

In Cremer the court considered an instruction which told the jury “the burden is on the defendant to prove the alleged gift by evidence which is clear and unequivocal and which convinces the jury of its truthfulness; ...” 8 S.W.2d 110, 1. c. 115[6].

A number of cases state the evidence must convince the jury beyond a reasonable doubt. These include Albrecht v. Slater, 233 S.W. 8 (Mo.1921); St. Louis Union Trust Company v. Busch, 346 Mo. 1237, 145 S.W.2d 426 (1940) and Gillespie v. Ringhausen’s Estate, 364 S.W.2d 633 (Mo.App.1963).

The reason for this rule is the suspicion with which the law views a gift first claimed after the donor’s death. Some of the cases state the claimant in such a situation assumes a heavy burden to prove the existence of a gift.

Graves does not deny the above-cited cases hold as they do, but relies solely on Baker v. Bickel, 386 S.W.2d 105 (Mo.1964) in which the court stated at 111[8 — 9]: “[f]or proper burden of proof instruction in future jury cases, see MAI No. 3.01, June 1964 supplement. Our rule is that the burden of proof on fact issues to be decided by a jury does not change with the kind of case to be tried.”

Graves contends the court in Baker abrogated any rule concerning burden of proof except the burden prescribed in MAI 3.01. The court in Cremer considered much the same type of argument when a statement was cited from Brooks v. Roberts, 281 Mo. 551, 220 S.W. 11 (Mo. banc 1920) stating: “[n]or does the term ‘reasonable doubt’ or similar expressions have any place in civil case instructions.” In Cremer the court stated this did not change the ruling in Morley and followed the holding in Morley concerning the burden of proof in a case involving a gift first asserted after the donor’s death. The court in Cremer likewise rejected the argument that the statement concerning the burden of proof in Morley was only dictum. The court further observed Brooks did not involve a gift case but was a quiet title action.

The general statement contained in Baker cannot be considered to change the type of evidence required or the burden of proof necessary to establish an inter vivos gift. This is especially true when the Supreme Court, subsequent to Baker, restated the rule as follows: “[a]s a general rule one claiming an inver vivos gift has the burden of proving the same by clear and convincing evidence.” In re Estate of Wintermann, 492 S.W.2d 763 (Mo.1973). Not only has the court in Wintermann acknowledged the rule in gift cases to be clear and convincing evidence, but the Committee’s Comment following MAI 3.01 states: “[t]his instruction is not to be used in those rare cases where the proof must be ‘clear, cogent and convincing.’ ” As stated in Corbin v. Wennerberg, 459 S.W.2d 505 (Mo.App.1970): “[i]n choosing appropriate instructions, therefore, ‘it is essential that attorneys carefully consider the committee comments * * * ’. Peak v. W. T. Grant Company, Mo., 409 S.W.2d 58, 60[1]. And while to disregard the guidance offered by the committee comments does not plainly result in presumptively prejudicial error, as when applicable Notes on Use are not followed (citations omitted), it tends to prejudicial error . . . ”

Baker involved a fraud case and no mention is made of inter vivos gift cases. As pointed out in Baker the usual preponderance of evidence test is applicable in a fraud case. In view of the restatement of the rule applicable to the gift cases as stated in Wintermann, it cannot be said the court in Baker abrogated the burden of proof or character of evidence historically required in the gift cases. There is no more reason to think the court in Baker was abrogating this rule than there was for the court in Cremer to think the rule had been abrogated by the statement in an earlier case concerning reasonable doubt appearing in civil instructions.

The last direct holding by the Supreme Court on an instruction in an inter vivos gift case is in Moriey. There the court approved the burden of proof as being by evidence clearly unequivocal and beyond a reasonable doubt. Considering the firmly entrenched rule in this type of case, as fortified by the Committee Comment to MAI 3.01, it is inescapable the trial court erred in giving MAI 3.01 without modification.

On retrial, MAI 3.01 should be modified to include at the appropriate place a statement that the evidence must be by clear, cogent and convincing proof.

The Bank raises four additional points which may recur on another trial. The first of these is the propriety of the circuit court assuming jurisdiction of the claim which Graves had against the estate of Dr. Pass-man for the $4,022 proceeds of the sale of the tax exempt bond. The Bank by interrogatories filed in probate court inquired of Graves if she had ever made a loan to Dr. Passman. In response thereto Graves set out a loan and the terms thereof and added the following to that answer:

“In addition to the foregoing, Natalie Graves removed $5,000.00 of the Sheraton Corporation bonds from her safety box at the Wornall Bank so that Dr. Passman could sell the same for her and convert the proceeds to municipal bonds. These municipal bonds have not been returned to her, and therefore Dr. Harold Passman or the Estate of Dr. Harold Passman is indebted to Natalie Graves for the proceeds of sale of the said $5,000 of Sheraton bonds.”

Both the probate and circuit courts, over the Bank’s objection, held this properly presented the issue of whether or not the estate of Dr. Passman was indebted to Graves. The affidavit of discovery of assets originally filed by the Bank followed the procedure dictated by §§ 473.340 — 473.-350, RSMo 1969. The Bank claims the issue concerning the $4,022 was not properly raised by Graves because it was not filed pursuant to the requirements of § 473.357, RSMo 1969. Graves contends the issue was properly raised under the holding in State ex rel. Lipic et al. v. Flynn, 358 Mo. 429, 215 S.W.2d 446 (banc 1948) in which the court stated the issues in a discovery of assets proceeding are not confined to those tendered in the initial affidavit but are made by the more detailed written interrogatories and answers thereto. This is undoubtedly the rule, however, that case did not involve the question of broadening the issues to include a question of an asset held by the estate belonging to another. The statutes dealing with discovery of assets are limited to discovery of assets claimed to belong to the estate but which are in the possession of another. Section 473.357 specifically deals with the claim made by another that assets belonging to that person are being held by the estate.

Graves contends that her answer should be construed as the petition required under § 473.357. This is not possible because her answer, even though verified, does not comply with the mandate of that section. For instance, that section requires the person filing the petition alleging the estate is holding personal property belonging to that person to allege how he acquired ownership thereof. Such section also provides for an answer to be filed by the estate and the issues raised by the petition and answer are those to be tried. Here Graves’ answer did not contain any allegation as to how she acquired ownership of the money she alleged was due from the estate, nor was the estate provided an opportunity to file any sort of answer to raise any issue concerning this claim by Graves. Rather, the issue of the ownership of this sum was tried in the same manner as the other issues raised by the interrogatories and answers.

The statutes as they existed at the time this proceeding was begun set out completely the procedure for claims involving property held by another, but alleged to belong to the estate, and for claims involving property held by the estate, but alleged to belong to another. The issues made by the interrogatories and answers under the discovery of assets proceeding were required to be germane to the central issue of property held by another but alleged to belong to the estate. Such issues could not be extended to include property held by the estate but alleged to belong to another because of the completely separate statutory scheme for disposing of this class of cases. This problem has largely been obviated by the repeal of §§ 473.343 to 473.357. However, at the time this proceeding was begun, the old sections were in force.

By failing to follow the statutory dictates for the presentation of her claim of ownership of money held by the estate, the court did not have jurisdiction of this claim by Graves. On remand the claim of Graves to this $4,022 should not be considered by the court.

The Bank next urges the court erred in failing to sustain a motion for directed verdict with respect to $5,000 in Sheraton Bonds which the Bank claims were in the actual custody of the Bank at the time of the alleged gift by reason of a pledge as security for a loan. The Bank claims Graves stated the gift of this amount of bonds was made on January 2, 1969, when $5,000 of the Sheraton Bonds were actually in the custody of the Bank under a pledge, therefore, the bonds could not have been physically delivered to her, and one of the essential elements of a gift thereby failed.

On this point this court must view the evidence in the light most favorable to Graves. Bishop v. Goldschmidt, 436 S.W.2d 47 (Mo.App.1968). Viewed in this light, the jury could have found from Graves’ testimony that the $5,000 in Sheraton Bonds were given to her on May 23, 1969, after such bonds had been returned to Dr. Pass-man by the Bank in March. This inference would be permitted by the testimony of Graves that interest coupons on such bonds were clipped on July 1, 1969, in the amount of $750. The testimony was that such bonds bore interest at the rate of 7½%, with the interest payable semi-annually. Since $750 is interest at 7V2% on $20,000 for six months, the jury could properly find that on July 1, 1969, all $20,000 worth of bonds were in the safety deposit box. Since they were there on July 1, 1969, under the evidence that such bonds were returned to Dr. Passman in March of 1969 and that Dr. Passman and Graves visited the box on May 23, 1969, when Dr. Passman confirmed his gift, the jury could find that all of the bonds were in the box in May. For that reason, it was not error to refuse to direct a verdict as to the $5,000 in Sheraton Bonds.

The Bank next complains of the action of the court in admitting in evidence a large piece of paper on which counsel for Graves had written the numerous dates involved in the case, together with a brief outline of evidence occurring on such dates. This piece of paper was attached to the chalkboard and used by counsel in his opening statement. It was not used again until it was likewise attached to the chalkboard and used by counsel in his closing argument. The paper was marked as an exhibit and was admitted by the court into evidence just prior to the closing arguments. While it is proper to use visual aids in explaining the case to a jury, Boese v. Love, 300 S.W.2d 453 (Mo.1957), it is axiomatic that evidence to be admissible must have logical relevance and probative value. Cardello v. Bauer, 433 S.W.2d 81 (Mo.App.1968).

The Bank concedes the dates and occurrences listed on the paper were admitted in evidence through the testimony of Graves, but contends it contains conclusions of counsel in improper form to be admitted in evidence. That being the case, counsel was not referring to any matter not in evidence and was simply using the paper as a visual aid to help clarify the many dates and occurrences about which the jury had heard testimony. However, as a purely technical matter, the court should not have actually received such piece of paper in evidence since the paper itself was not evidence, only a partial recapitulation of the evidence in the language of counsel. On retrial counsel should be permitted to make use of the paper as a visual aid in opening statement and closing argument as he was in the original trial. The paper may properly be marked as an exhibit for identification, but should not be actually received in evidence.

The Bank complains finally of the form of verdict. The court gave the following form in the event the jury found in favor of Graves:

“ ‘We, the jury, find the issues in favor of the citee, Natalie Graves with respect to the following items of property, and we declare the ownership of the following items of property to be hers:
(here insert identity of such property).’ ”

The form, if the jury found in favor of the Bank, was given as follows:

“ ‘If all of you agree upon a verdict in favor of affiant City National Bank and Trust Company, Executor of the estate of Harold Passman, deceased, it may be in the following form:
“ ‘We; the jury, find the issues in favor of affiant.’ ”

The Bank argues these forms were prejudicial to it because it allowed the jury to find for Graves as to one or more items of property, but seemed to require the jury to find in favor of the Bank as to all items in order to find for the Bank. An extended discussion of the merits of this argument is not required, but it may simply be observed that on retrial the court should consider the Bank’s argument in this regard. The court could very easily make the form of verdict in favor of the Bank to be the same as the form of verdict in favor of Graves and thus fully meet the Bank’s complaint.

The judgment is reversed and the cause is remanded for a new trial with directions that the claim of Graves as to the ownership of the $4,022 shall be dismissed.

MORGAN, HOLMAN, HENLEY and DONNELLY, JJ., concur.

SEILER, C. J., concurs in result in separate concurring opinion filed.

BARDGETT, J., dissents in separate dissenting opinion filed.

PINCH, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

SEILER, Chief Justice

(concurring in result).

The law is well established that in order to have a gift there must be delivery of possession along with an intent to give. If this occurs, there is a gift. I see no justification for saying that it takes more to establish a gift at one time than it does at another. If there has been delivery and the required intent, a gift has taken place, no matter whether it comes to light before or after the death of the donor. It is not necessarily so that every claim of a gift not disclosed until after death of the donor is likely false.

In my opinion the “clear, cogent and convincing” evidence requirement in an instruction amounts to a comment on the evidence by the court. It is equivalent to a declaration that in every such case the claim of the donee should be viewed with skepticism and placed under a handicap. If it is not a comment on the evidence, it certainly is a cautionary instruction, something which MAI is at pains to avoid in most instances. Mo.Approved Jury Instructions, 2d Ed. xxvi.

If there are circumstances present which would logically raise doubt as to veracity of the testimony of the donee, the jury can be expected to take this into consideration in arriving at their verdict under the standard MAI 3.01 and it can be covered adequately by the lawyers in jury argument. Under 3.01 the jury is at liberty in determining whether there was delivery with the required intent to consider the evidence and the reasonable inferences derived therefrom. This would include all the inferences of self-serving which might or might not be expected of a donee in the situation of the respondent. The jury was fully aware of the relationship which existed among and between Dr. Passman, his wife, and Natalie Graves. It did not require a “clear, cogent and convincing” type of instruction to make the jury realize the possibilities.'

Furthermore, the estate of the alleged donor already has the protection afforded by the dead man’s act, Sec. 491.010, RSMo 1969, with respect to foreclosing entirely the testimony of the donee and does not need, additionally, a “Little Dead Man’s Statute”, which is what appellant’s brief calls the special burden of proof rule it is seeking to uphold. In a proceeding to discover assets, as here instituted by the executor, the donee is not admitted to testify in his own favor, even though the petitioner files interrogatories and the defendant files answers thereto. See Estate of Rogers v. Courier, 429 S.W.2d 258, 262-63 (Mo.1968), where the propounding of 43 interrogatories to defendant was held not to waive defendant’s incompetency as a witness. Of course, the incompetency can be waived, as apparently was done in the case before us, by the executor, by subjecting the defendant to oral examination, In re Trautmann’s Estate, 300 Mo. 314, 254 S.W. 286 (1923), but this is a matter of choice by the estate.

Similarly, if the donee should seek by an independent action to establish the gift in his favor, again he would be barred by the statute from testifying. Kling v. McCabe, 36 F.2d 337 (8th Cir. 1929); Dunn v. German-American Bank, 109 Mo. 90, 18 S.W. 1139 (1892); Manley v. Ryan, 235 Mo.App. 45, 126 S.W.2d 909 (1939).

After much effort, we have evolved MAI 3.01. It is simple and direct. It is directed toward the idea that the jury must decide whether to believe or not believe the proposition submitted, considering the evidence and the reasonable inferences therefrom. We no longer try to define the meaning of “preponderance or greater weight of the credible evidence” or require proof “to the satisfaction of the jury”, etc. Why not leave it at that, without requiring the jury also to determine whether the evidence is “clear, cogent and convincing”? What do these terms mean to the average juror and what purpose do they serve other than to confuse, rather than aid, and baffle, rather than facilitate, the determination of the proposition to be decided? It should not be required, first, that a proposition be established clearly, second, that it be established cogently, and, third, that it be established convincingly. If the jury believes the proposition submitted, that should be sufficient. As said in Wigmore on Evidence (3rd Ed.), Vol. IX, p. 325:

“The truth is that no one has invented or discovered a mode of measurement for the intensity of human belief. Hence there can yet be no successful method of communicating intelligently to a jury a sound method of self-analysis for one’s belief. If this truth be appreciated, Courts will cease to treat any particular form of words as necessary or decisive in the law for that purpose; for the Law cannot expect to do what Logic and Psychology have not yet done.”

I agree that in light of the Committee Comment referred to in the principal opinion it would be unfair to apply the change to the present appeal and so I concur in the result reached in the principal opinion, but from this date forward I would consider Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563 (1927) and In re Wintermann, 492 S.W.2d 763 (Mo.1973) overruled on the point under discussion and would no longer instruct that an inter vivos gift must in some circumstances be proved by “clear, cogent, and convincing proof”. Instead, I would adhere to the view expressed in Baker v. Bickel, 386 S.W.2d 105, 111 (Mo.1964) that MAI 3.01 is sufficient and that the rule is “ . . . that the burden of proof on fact issues to be decided by a jury does not change with the kind of case to be tried.” In addition, I would require that the Committee Comment following MAI 3.01 stating that “This instruction is not to be used in those rare cases where the proof must be ‘clear, cogent and convincing’ ” no longer be heeded and that the statement be disregarded henceforth.

BARDGETT, Judge

(dissenting).

I concur in the concurring opinion of SEILER, C. J., in all respects except the conclusion that the cause should be reversed and remanded because, under that concurring opinion, on remand MAI 3.01 would be used just as it was in the trial which is the subject of this appeal. I would affirm the judgment.

      . In the criminal law field, in the case of flight, we refrain from any instruction commenting on or directing the jury’s attention to flight or explanation for what appears to be flight, but we permit counsel to argue the evidence of flight or its explanation to the jury. See MA1-CR, Instructions Never Given, 5.40 Flight.

      . In the trial of a criminal case, we prohibit attempts to instruct as to the meaning of “reasonable doubt” or “beyond a reasonable doubt.” MAI-CR, Instructions Required — Requested or Not, 2.20 Burden of Proof and Related Matters.