author: JAMES, Justice.

text:
    COASTAL CONSTRUCTION COMPANY, Appellant, v. TEX-KOTE, INC., Appellee.
    No. 5791.
    Court of Civil Appeals of Texas, Waco.
    Sept. 14, 1978.
    Rehearing Denied Oct. 12, 1978.

      Howell E. Stone and Alice Giessel, Tal-bert, Giessel & Stone, Inc., Houston, for appellant.
    Frank M. Bean, Bean & Manning, Charles D. Boston, Fulbright & Jaworski, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a wrongful death suit by the widow of a deceased workman against the owners of the Houston Astrodome, the general contractor, and the subcontractor (said subcontractor being the employer of the deceased). The general contractor filed a cross action over against the subcontractor for contractual indemnity. After trial by jury, the trial court awarded judgment in favor of the widow against the general contractor, and denied the general contractor judgment for indemnity against the subcontractor. Thereafter, the general contractor paid off the judgment in favor of the widow, and appealed that portion of the trial court’s judgment wherein such general contractor was denied indemnity. Therefore, the sole question before us is whether or not the general contractor is entitled to indemnity against the subcontractor. We hold that the general contractor is not entitled to indemnity against the subcontractor, and thereby affirm the trial court’s judgment.

Plaintiff Ann Hearn, the widow herein, brought this action against Houston Sports Association, Incorporated, the Astrodome-Astrohall Stadium Corporation, Appellant Coastal Construction Co. (the general contractor), and Appellee Tex-Kote, Inc. (the subcontractor). For purposes of this suit we will call Houston Sports Association, Inc. (hereinafter called “HSA”) the owners or at least the legal entity in charge of the Houston Astrodome. The Astrodome-As-trohall Stadium Corp. is a wholly-owned subsidiary of HSA, and is a party defendant to Mrs. Hearn’s suit because it was the assignee of Coastal’s contract from HSA.

In the early part of 1973, HSA entered into a written contract with Coastal Construction Co. (hereinafter called “Coastal”), wherein Coastal agreed to perform certain work consisting primarily of buffing, priming, and repainting the structural steel inside the dome portion of the Astrodome.

In turn, on or about May 30,1973, Coastal entered into a written subcontract with Tex-Kote, wherein Tex-Kote agreed to perform the major portion of the work covered by Coastal’s contract with HSA.

The deceased workman, Richard Hearn, the husband of Plaintiff Ann Hearn, was an employee of Tex-Kote at the time of his death. Mr. Hearn, a 21 year old man, came to work for Tex-Kote on September 7,1973, and died that same day when he fell from the gondola portion of the Astrodome a distance of some 208 feet to the field surface below.

The “gondola” is a cone shaped object made of structural steel, weighs 40,000 pounds, and is about seventy feet in diameter at its base. Its usual position and location is in the center of the interior of the dome, some 200 feet above the field below. Above the gondola are located equipment and cables whereby it may be lowered all the way to the playing field, or any part of the way. For a person to get to the gondola from the inside of the Astrodome, it is necessary to walk up a long catwalk, which begins at a point in the vicinity of the top of the bleacher area, which leads to a landing in the top center of the dome. From here there is a steel ladder which leads down to a circular catwalk, which is made of steel mesh about three feet wide on the walking portion, with a metal handrail on each side thereof. The inside center of the circular catwalk is about twelve feet in diameter, and is covered with one-half inch cellotex which has no structural strength.

On the day in question, Mr. Hearn was assigned to work with Fritz Crawford, a Tex-Kote employee with many years of experience in working in high places. Their work consisted of cleaning the steel girders that run up to the center of the dome, getting the rust off and putting the primer on, preparing such surfaces for painting later on. Hearn was assigned to the job of grinding the steel girders above the circular catwalk hereinabove referred to. To do this he stood upon what is called a “pick-board,” which is a long aluminum board about thirty inches wide which was placed across the handrails from one side of the circular catwalk to the other. By standing on this pickboard he was able to reach above his head and grind the surfaces of the steel girders. He could move the pick-board as needed as he finished the surfaces above him. As stated, the outside of the circular railing goes straight down to the field, and the inside was floored with half-inch cellotex which had no structural strength. All of this was pointed out to Hearn by Crawford. Negotiating the area from the catwalk to the ladder was likewise hazardous, because if a hand or foot slipped, one could easily fall to the field below without having anything to stop him.

Hearn and Crawford had been working steadily from 8 AM that day, with a half hour for lunch, until about 1:30 PM. It was hot, dirty, and strenuous work. At about 1:30 PM, Crawford found that he had missed a rust spot, and asked Hearn to let him (Crawford) use the grinder, and at the same time he suggested that Hearn go up the ladder to the next landing to get a smoke and a drink of water. Hearn stepped on the ladder with one foot on the rail and handed the grinder to Crawford. Hearn’s foot was on the inside rail next to the cellotex. Crawford immediately began grinding overhead and did not see Hearn after that. Within a very short time, in a matter of seconds thereafter, Crawford was informed that Hearn had fallen. No one actually saw Hearn fall; however, a section of the cellotex located in the center area of the circular catwalk also fell to the field. There were no safety nets under the area where Hearn was working, although there had been one in the vicinity a day or two before. On the day in question, Hearn wore a safety belt which he fastened to the nearest steel truss while working, and his instructions were to unfasten his safety belt only when “travelling,” meaning when changing from one work position to another.

Trial was had to a jury, which found (or failed to find) in answer to special issues as follows:

(1) Coastal was negligent in failing to provide a safety net under the area where Hearn was working;

(2) which failure was a proximate cause of Hearn’s death;

(3) Jury failed to find that such failure was in heedless and reckless disregard of the rights of others affected by it.

(4) The failure of Coastal to provide flooring on the girders at the floor level of the gondola below the level where Hearn was working, was negligence;

(5) and that such failure was a proximate cause of Hearn’s death.

(6) Coastal failed to initiate, maintain, and supervise any safety precautions or programs for workers situated as was Hearn;

(7) Such failure was negligence;

(8) And a proximate cause of Hearn’s death.

(9) Jury failed to find that Hearn failed to keep a proper lookout. In other words, by their answer to this issue, Hearn was acquitted of negligence.

(10) This was a proximate cause issue pursuant to an affirmative answer to Special Issue No. 9, which was not necessary to be answered.

(11) Jury failed to find that “the death of Richard Hearn was caused in whole or in part by any negligent act or omission of Tex-Kote, Inc.”

(12) Jury found Plaintiff Ann Hearn was entitled to $750,000 compensatory damages.

(13) Jury found zero damages for physical pain and mental anguish suffered by Hearn before his death.

(14) Jury found Mrs. Hearn was entitled to zero exemplary damages against Coastal.

(15) No answer to the comparative negligence special issue, and none necessary in view of the jury’s finding that only one party (Coastal) was negligent.

Pursuant to the jury verdict, the trial court entered judgment in its pertinent parts as follows:

(1) Plaintiff Ann Hearn was awarded judgment against Coastal in the amount of $750,000.00.

(2) Since Astrodome-Astrohall Stadium Corp. had previously settled with Mrs. Hearn and had paid her $25,000.00 therefor, in accordance with such settlement Coastal was given credit for $25,000.00 against said $750,000.00 judgment.

(3) Plaintiff Ann Hearn was awarded nothing against Tex-Kote.

(4) Coastal was awarded nothing against Tex-Kote.

Coastal filed an original and amended motion for new trial, pursuant to which the trial court ordered a remittitur of $200,-000.00 as a condition to the court’s overruling such motion for new trial. Thereafter, Plaintiff Ann Hearn filed such remittitur, thereby reducing her net judgment to $525,000.00, after deducting said remittitur as well as the $25,000.00 credit allowed for the amount paid her by Astrodome-Astro-hall. Coastal then paid Mrs. Hearn $525,-000.00 and secured a release of judgment from her, and now appeals from the trial court’s judgment on the indemnity question concerning Tex-Kote upon four points of error which may be summarized as follows:

(1) The trial court erred in refusing to disregard the jury’s answer to Special Issue No. 11 and to hold as a matter of law that Tex-Kote was negligent, causing Hearn’s death, and for such reason Tex-Kote is contractually obligated to indemnify Coastal;

(2) Coastal is entitled to indemnity as a matter of law against Tex-Kote;

(3) The jury’s answer to Special Issue No. 11 is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, under the doctrine of In Re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660.

We overrule all of Appellant’s points and contentions and affirm the trial court’s judgment.

Special Issue No. 11 was submitted to the jury in the following language:

“Do you find from a preponderance of the evidence that the death of Richard Hearn was caused in whole or in part by any negligent act or omission of Tex-Kote, Inc.?” To this the jury’s answer was “We do not.”

The essence of Coastal’s contention is that, having paid off and satisfied the judgment to Plaintiff Ann Hearn, it is entitled to indemnity as a matter of law against Tex-Kote.

In the written subcontract between Coastal and Tex-Kote is contained the following indemnity provision, herein quoted in its pertinent parts:

“The Subcontractor (Tex-Kote) shall indemnify and hold harmless the Contractor (Coastal)-from and against all claims, damages, losses, and expenses including attorney’s fees arising out of or resulting from the performance of the Subcontractor’s work under this Subcontract_pro-vided that any such claim_.is caused in whole or in part by any negligent act or omission of the Subcontractor_regardless of whether it is caused in part by a party indemnified hereunder.”

It is undisputed between Appellant and Appellee, and we agree, that the above-quoted language is clear and unambiguous, and satisfies the latest “indemnity law” handed down by our Supreme Court. See Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co. (Tex.1972) 490 S.W.2d 818; Sira & Payne, Inc. v. Wallace & Riddle (Tex.1972) 484 S.W.2d 559; and Joe Adams & Son v. McCann Construction Co. (Tex. 1971) 475 S.W.2d 721. In other words, it is undisputed that said indemnity provision would provide indemnity for Coastal’s negligence in the event of any causal negligence on the part of Tex-Kote. On the other hand, Coastal is entitled to indemnity from Tex-Kote only if the death of Richard Hearn were caused “in whole or in part by any negligent act or omission of the Subcontractor (Tex-Kote).”

Now, since the jury in answer to Special Issue No. 11 failed to find that Tex-Kote was guilty of any negligence causing Hearn’s death, Coastal is in the position of contending that the evidence conclusively establishes that Tex-Kote was negligent; that is to say, that Tex-Kote was negligent as a matter of law. Alternatively, Coastal asserts the factual insufficiency of the jury’s negative finding in answer to Special Issue No. 11. We do not agree with either contention.

At the outset, both Appellant and Appellee agree that accompanying every contract is the common law duty to perform with ordinary care, and that negligent omission or commission concerning the performance of such contract is a tort as well as a breach of contract. Montgomery Ward v. Scharrenbeck (Tex.1947) 146 Tex. 153, 204 S.W.2d 508 at p. 510.

This being so, in order to evaluate the Appellant Coastal’s contentions we deem it necessary to quote pertinent provisions in the contract between HSA and Coastal on the one hand, and the subcontract between Coastal and Tex-Kote. Then by holding these contractual provisions up in the light of the jury’s findings, we may be able to arrive at a determination of whether Coastal is entitled to indemnity against Tex-Kote.

The written contract between Coastal and HSA contains the following language:

“The Contractor shall provide a safety net just under the main structure to protect both the people and property.”

* * * * * *

“10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.”

“10.2.1 The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:

.1 all employees on the Work and all other persons who may be affected thereby.”
* * * * * *

“10.2.2 The Contractor shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. He shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.”

******

“10.2.5 The Contractor shall designate a responsible member of his organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwise designated in writing by the Contractor to the Owner and the Architect.”

******

“1-13. Temporary Safeguards and Protection

“a. The Contractor shall safeguard his work as required by law, the HSA, or by the Engineer for the protection of those on or near the job site. All damage of whatever nature, caused by the Contractor’s failure to provide proper safeguards shall be made good and paid for by him.

“b. No requirement of or omission to require any precautions under this contract shall be deemed to limit or impair any responsibilities or obligations assumed by the Contractor under or in connection with this contract, and the Contractor shall at all times maintain adequate protection to safeguard the public and all persons engaged in the performance of this Contract and shall take such precautions as will accomplish such end without undue interference with the public or the operations of the Astro-dome.”

* * * * * *

“4.10.1 The Contractor shall be responsible to the owner for the acts and omissions of all his employees and all Subcontractors, their agents and employees, and all other persons performing any of the Work under a contract with the Contractor.”

******

“4.3.1 The Contractor shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.” (emphasis supplied).

The written subcontract between Coastal and Tex-Kote contains the following language:

“The Contractor shall be bound to the Subcontractor and the Subcontractor shall be bound to the Contractor by the terms of this Subcontract and of the Contract Documents between the Owner and the Contractor, and shall assume each to the other, all the obligations and responsibilities which the Contractor, by these documents, assumes toward the Owner, and the Owner assumes toward the Contractor, and each shall have the benefits of all rights, remedies and re-dress against the other, which by the Contract Documents, the Owner and the Contractor have against one another, insofar as applicable to this Subcontract, provided that when any provision of the Contract Documents between the Owner and the Contractor is inconsistent with any provision of this Subcontract, this Subcontract shall apply.”

* * * * * *

“The work to be performed under this Subcontract covers the repainting of the surfaces of all existing structural steel members of the roof structure of the domed stadium which are accessible from within the stadium, Item 4-01a(3) of Section 4 of the Specifications. The work shall be performed in accordance with the applicable requirements of Section 4, Repainting of Existing Structural Steel, and shall also include the following:

“1. Furnishing of all scaffolding, supports and protection necessary to accomplish the work under this Subcontract. To the maximum extent possible, all scaffolding, supports and protection will be utilized for all purposes of construction. The Subcontractor will make every effort to prevent needless duplication of scaffolding, and support and protection installation.

“2. Temporary lighting and electric power wiring as required from existing outlets.”

* * * * ⅜ *

“Final payment shall be due when the work described in this Subcontract is fully completed and performed in accordance with the Contract Documents and is satisfactory to the Engineer. Final payment, constituting the unpaid balance due, including re-tainage, will be paid Contractor when the work has been completed, the Contract fully performed, and, if applicable, a final Certificate of Payment has been issued by the Engineer.”

* * * * * *

“The Subcontractor shall take necessary precautions to protect properly the finished work of other trades from damage caused by his operations.

“The Subcontractor shall at all times keep the building and premises clean of debris arising out of the operations of this Subcontract. Unless otherwise provided, the Subcontractor shall not be held responsible for unclean conditions caused by other contractors or subcontractors.

“The Subcontractor shall take all reasonable safety precautions with respect to his work, shall comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property in accordance with the requirements of the Contract Documents. The Subcontractor shall report within three days to the Contractor any injury to any of the Subcontractor’s employees at the site.”

* * * * * *

“The Subcontractor’s and Contractor’s signatures below shall constitute this agreement as a binding contract between the parties named, and our respective heirs, executors, administrators, successors, and assigns, which contract shall be deemed dated as of the day and year specified below, upon such acceptance this written contract shall comprise the entire agreement relating to this work. No other agreement or understanding concerning the same, and no oral statement, understanding, or agreement shall affect the terms of this contract.”

Then lastly, said subcontract contains the indemnity provision hereinabove quoted in this opinion, wherein Tex-Kote agreed in effect to indemnify Coastal from damages arising out of the Tex-Kote’s performance of the subcontract caused “in whole or in part” by Tex-Kote’s negligence, regardless of whether Coastal was negligent or not.

At first blush it is apparent to see that in Coastal’s contract with HSA, Coastal assumed obligations to HSA that far exceeded the obligations which Tex-Kote assumed to Coastal in the subcontract. Moreover, we are mindful that the Subcontract provides that when any provision of the Contract is inconsistent with any provision of the Subcontract, that the Subcontract will control over the Contract.

As we understand it, Coastal’s argument is that Tex-Kote assumed “all the obligations and responsibilities which the Contractor (Coastal), by these documents, assumes toward the Owner (HSA)”; that since the jury found Coastal causally negligent in three different respects, that by contract, Tex-Kote was likewise causally negligent in these same three respects; therefore, Coastal is entitled to contractual indemnity against Tex-Kote. We do not agree.

The jury found Coastal to be guilty of three grounds of causal negligence, to wit:

(1) In failing to provide a safety net under the area where Hearn was working;

(2) In failing to provide flooring on the girders at the floor level of the gondola below the level where Hearn was working; and

(3) In failing to initiate, maintain, and supervise any safety precautions or programs for workers situated as was Hearn.

Let us examine the respective obligations of the parties as regards each of the three grounds of negligence:

(1) Failure to provide a safety net under the area where Hearn was working: By its written contract with HSA, Coastal expressly agreed “to provide a safety net under the main structure” of the Astro-dome. By Tex-Kote’s written subcontract with Coastal, Tex-Kote neither expressly nor impliedly agreed to assume such a responsibility. Whatever responsibility Tex-Kote may have assumed concerning safety nets was not expressed; however, if Tex-Kote had any such responsibility by implication it was qualified and limited by such language as “insofar as applicable,” “necessary” or “reasonable.” In short, the mere fact that Coastal was causally negligent for failure to provide a safety net does not mean that Tex-Kote was also negligent for the same such failure. The respective contractual responsibilities of Coastal and Tex-Kote were different, and it was well within the province of the jury to find Coastal negligent and fail to find Tex-Kote negligent in this regard.

(2) Failure to provide flooring on the girders at the floor level of the gondola below the level where Hearn was working: In this connection, Coastal asserts that Tex-Kote was negligent per se for violation of Articles 5182 and 5182-1, Revised Civil Statutes of Texas: The pertinent language of Articles 5182 and 5182-1 applicable to the case at bar are identical and read as follows:

“Article 5182. Protection of workmen on buildings

“1. To prevent workmen from falling.— Any building three or more stories in height, in the course of construction or repair, shall have the joists, beams or girders of each and every floor below the floor level where any work is being done, or about to be done, covered with planking laid close together, said planking to be of not less than one and one-half inches of thickness in buildings that have steel framework, and what is commonly known as one-inch plank in all others where joists are set on two foot centers or less, to protect the workmen engaged in the erection or construction of such buildings from falling through joists, girders, and from falling planks, bricks, rivets, tools or other substances, whereby life and limb are endangered.”

We cannot see how Articles 5182 and 5182-1 have any application to a building such as the Houston Astrodome, which is not “three or more stories in height.” As a lamella structure, it has no “stories.” Moreover, the Astrodome could not “have the joists, beams or girders of each and every floor below the floor level where any work is being done_covered with planking laid close together,” because, as a lamel-la structure, it has no “floors” contemplated by the statute.

We are of the opinion, and hold that Articles 5182 and 5182-1 do not apply to a building such as the Astrodome. However, assuming for the sake of argument that it does apply, Tex-Kote introduced proof that it would be more dangerous to install planking across the base of the gondola than it would be for the workmen to perform their work without the planking, as long as the men were using their customary safety equipment. This being so, for Coastal to establish negligence per se against Tex-Kote for statutory violation, Coastal had the burden to establish a jury finding not only of the statutory violation, but also a jury finding that such violation was unexcused. This Coastal did not do. See Southern Pacific Co. v. Castro (Tex.1973) 493 S.W.2d 491, 497. Therefore, Coastal has not established that Tex-Kote is guilty of negligence per se in connection with its asserted failure to provide flooring at the base of the gondola. It was within the jury’s province to find Coastal causally negligent in this failure to provide flooring, and to fail to find Tex-Kote negligent therefor, which was done by the jury.

(3) Failure to initiate, maintain, and supervise any safety precaution or programs for workers: As respects safety precautions or programs, by its written contract with HSA, Coastal expressly agreed to “be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the work,” and to “designate a responsible member of his organization at the site whose duty shall be the prevention of accidents.” By the written subcontract with Coastal, Tex-Kote neither expressly nor impliedly agreed to assume such a responsibility.

In summary, in order to be entitled to indemnity against Tex-Kote, Coastal had the burden of establishing that Tex-Kote was causally negligent as regards Hearn’s death. Since the jury failed to find that Tex-Kote was negligent, Coastal had the burden of establishing either (1) that the evidence conclusively established that Tex-Kote was causally negligent or (2) that the jury’s answer to Special Issue No. 11 was factually insufficient. For the reasons hereinabove given, we are of the opinion and hold that Coastal has failed to meet its burden in either instance, and therefore that Coastal is not entitled to indemnity as against Tex-Kote.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Otila G. PLATA et al., Appellants, v. Teofilo GUZMAN et ux., Appellees.
    No. 1303.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1978.
    Rehearing Denied Oct. 12, 1978.

      Polk Hornaday, Harlingen, for appellants.
    J. L. Covington, Brownsville, for appel-lees.
   OPINION

YOUNG, Justice.

In this boundary dispute case the defendants appeal from the trial court’s judgment granting the plaintiffs title to and possession of a strip of land that lies between and adjoins tracts owned by the contending parties.

Teófilo and Natividad Guzman sued Otila and Eustolia Plata seeking to establish the boundary between land owned by the Guz-mans and the land owned by the Platas. Trial was to the court without a jury. The Platas appeal from the resulting judgment favorable to the Guzmans. We affirm.

The evidence indicates that the Guzmans own a ten and one-half acre tract of land which shares a common border with a fourteen and one-half acre tract of land owned by the Platas. The Guzman property is to the north of the Plata property. The Guz-mans acquired their ten and one-half acre tract in 1972 from Mr. Adolph Thomae, Jr., who had owned and farmed the tract for two years. No disputes about the boundary between the property of Mr. Thomae and that of the Platas occurred during this two-year period.

In October of 1973 Ms. Eustolia Plata spoke to Mrs. Guzman and asked if she might occupy a strip of land four or five feet wide along the Guzmans’ southern boundary in order to erect a cattle passage. Mrs. Guzman refused her request, and in November of 1973, the Guzmans having become concerned about their rightful boundary, asked R. P. Hanson, a professional engineer, to survey their property. The survey showed that the Platas had erected a fence about fifteen feet inside and along the entire length of the southern boundary of the Guzman property. This reduced the Guzmans’ usable property to approximately ten acres. According to the directions of their surveyor, the Guzmans then built a fence on the south side of what the Platas called their fence and along the Guzmans’ claimed border. This suit resulted, and the trial court granted judgment to the Guz-mans for their property as described above and as shown to them by their surveyors.

Findings of fact and conclusions of law were neither requested nor filed. Appellants did bring forward a statement of facts and therefore we must presume upon appeal that the trial judge found every fact necessary to sustain the judgment, provided such fact is raised by the pleadings and is supported by the evidence. Further, in considering the sufficiency of the evidence in support of presumed findings, we must construe the evidence in the light most favorable to the judgment and disregard all evidence to the contrary and indulge every legitimate conclusion which tends to uphold the judgment. Texas Construction Associates, Inc. v. Balli, 558 S.W.2d 513, 517 (Tex.Civ.App. — Corpus Christi 1977, no writ).

Appellants bring seven points of error. In appellants’ point 2 they contend that the trial court erred in refusing to allow them to amend their pleadings in order to allege that they had acquired title to the disputed property by adverse possession.

Appellees filed this suit on February 3, 1977, and appellants answered with a plea in abatement and a general denial on March 7,1977. On April 21,1977, the court held a hearing and overruled the plea in abatement. At that same hearing the court orally notified both parties that the case was set for trial at 2:00 p. m. on May 26, 1977. An order was entered of record reflecting the denial of the plea in abatement as well as the trial setting. The order notes that copies of the order were to be sent by the clerk to the parties.

At 2:00 p. m. on May 26, 1977, Mr. Cov-ington, representing the appellees, appeared for trial but Mr. Hornaday, representing the appellants, failed to appear. The trial judge then requested the bailiff to call Mr. Hornaday. Even so, the trial commenced and proceeded in Mr. Hornaday’s absence until 2:50 p. m., with Mr. Covington having questioned certain subpoenaed witnesses. At 3:20 p. m. the trial resumed with Mr. Hornaday present. He argued at this time that he had received no written notification of the trial, but he did admit that he was present at the pre-trial hearing when the time and date of trial was set. Whereupon the court summarized the testimony of the witnesses who testified in Mr. Hornaday’s absence and then recessed the case until 9:30 a. m. the following day, May 27, 1977.

The following morning, appellants filed with the clerk an amended pleading which included a limitations defense. After announcing ready for trial, Mr. Hornaday asked leave of the court to amend the appellants’ answer in order that they might plead the additional defense of limitations. Counsel for appellees objected on the ground of surprise. The court refused leave to file the requested amended answer.

Though Rules 63 and 66, T.R.C.P., which deal with pleading amendments should be liberally construed in the interest of justice, it is well established that the action of the trial court in granting or refusing the right to amend the pleadings within the seven-day period preceding trial is a matter within the discretion of the trial judge, and his decision will not be disturbed by an appellate court unless there is a clear showing of an abuse of discretion. Roeber v. DuBose, 510 S.W.2d 126, 128 (Tex.Civ.App. — Corpus Christi 1974, no writ). The burden is on the complaining party to show that the trial court’s action in granting or denying leave to file the amended pleading within the seven-day period before trial was either arbitrary or unjustified by the rules. Herrin Transportation Co. v. Parker, 425 S.W.2d 876, 878 (Tex.Civ.App. — Houston [1st Dist.] 1968, writ ref’d n. r. e.). Something more than a request and a refusal must appear in the record before an appellate court may properly say that a trial court abused its discretion or acted arbitrarily. Roeber v. DuBose, supra at 129.

In this connection, where it appears that the new matter was known to the parties seeking to file the amendment, or to their counsel, or by exercising reasonable diligence, it could have been known at such time as would have enabled them to include it in their former pleadings, or if it injects new matter, the request should be denied. Lightner v. McCord, 151 S.W.2d 362, 367 (Tex.Civ.App. — Amarillo 1941, no writ); 2 McDonald, Texas Civil Practice § 8.07 n. 59 (1970).

It can hardly be disputed that the limitations defense would have injected new matter into the trial and required a reshaping of plaintiff’s case. See McHone v. McHone, 449 S.W.2d 488, 490 (Tex.Civ.App. — Waco 1969, writ dism’d). Limitations is an affirmative defense which must be specially pled. Rule 94, T.R.C.P. Appellants gave no explanation why it was not pled in their prior pleadings. Appellants, moreover, advanced no reason why the facts as to this defense were not available when this suit was filed. Mr. Hornaday did state that he was ill in the interim between the pre-trial hearing and the trial, but gave no reason why he could not have presented the defense at sometime prior to one day after the trial on the merits had begun. We think that the appellants have failed to demonstrate that the trial court’s ruling was arbitrary, and that they have failed to show that the trial court abused its discretion. See Purvin v. Lee, 300 S.W.2d 339, 342 (Tex.Civ.App.- — Waco 1957, no writ). Appellants’ point 2 is overruled.

Appellants’ point 1 contends that the judgment is too imprecise and uncertain to allow a writ of possession to issue. The test of the sufficiency of the judgment to cause a writ of possession to issue is whether an officer charged with the duty of executing the writ of possession could go upon the ground and, without exercising a judicial function, ascertain the locality of the land as fixed by the judgment. Brown v. Eubank, 378 S.W.2d 707, 714 (Tex.Civ.App. —Tyler 1964, writ ref’d n. r. e.); 9 Tex. Jur.2d, Boundaries § 85 (1969). The judgment herein recites that plaintiffs recover title and possession of the premises described and bounded as follows:

“The north 10 acres and the north I6V2 feet of the south 15 acres of the north 25 acres of Block 296, San Benito Irrigation Company Subdivision in Cameron County, Texas.”

According to the evidence, this description was accurately drawn on a surveyor’s plat and staked out on the ground. We hold that the description here as it refers to the recorded plat is sufficient. See Kingelin v. Rogers, 259 S.W.2d 245 (Tex.Civ.App.— Waco 1953, no writ). Appellants’ point 1 is overruled.

Appellants’ point 3 asserts that the trial court erred in refusing to admit any evidence as to the limitations defense. Because appellants’ general denial did not put in issue the limitations defense, any testimony seeking to uphold such defense was properly excluded. Roeber v. DuBose, supra at 130-31. Appellants’ point 3 is overruled.

By their point 4, the appellants urge that the trial court erred in overruling their plea in abatement because a prior pending suit with identical issues existed in the County Court at Law. The order of the trial court which overruled appellants’ plea in abatement stated:

“And the court having considered the said plea in abatement and the argument of counsel, it is hereby ORDERED that said plea in abatement of Defendants shall be, and is hereby, overruled.”

The order indicates that no evidence was introduced at the hearing on the plea and there is no other evidence in the record which would prove a prior pending suit. Under these circumstances we must presume the order of the trial court was correct. See Street v. J. I. Case Threshing Mach. Co., 188 S.W. 725 (Tex.Civ.App.— Amarillo 1916, writ ref’d); 1 Tex.Jur.2d Abatement and Revival § 95 (1959). We overrule appellants’ point 4.

Appellants’ point 5 in effect claims that the evidence is insufficient to prove appel-lees’ cause of action and that consequently plaintiffs have never been dispossessed by defendants. We hold otherwise.

The pleadings and the evidence of the parties show that the only issue involved is that of the location of a boundary between the tracts of land of the parties. Under these circumstances, it is not necessary for the plaintiff to prove title as required in the ordinary action of trespass to try title, i. e., the plaintiff is not required to establish an incontestable title from the sovereignty of the soil or from a common source. Lee v. Grupe, 223 S.W.2d 548 (Tex.Civ.App. — Texarkana 1949, no writ). The plaintiff does have the burden, however, to show by a preponderance of the evidence the location of such boundary line upon the ground. Rodriguez v. Flores, 403 S.W.2d 172 (Tex.Civ.App. — San Antonio 1966, no writ). In this case the appellees introduced the deed from their grantor, Mr. Thomae. This deed contained a clear description of the property transferred to them as we have set out earlier. Appellees further introduced a plat certified by R. P. Hansen, professional engineer, showing the exact location of the property described in the deed. Mr. Antonio Garcia also testified as the surveyor who took the field notes from which the plat was prepared. He testified that the appellants’ fence was encroaching upon appellees’ property by about fifteen feet along the entire southern boundary of appellees property.

The appellants attempted to counter this testimony by showing that the fence whigh was supposedly encroaching upon plaintiffs’ land had been in that very position since about 1948, and had never been moved. On the contrary, several witnesses for the ap-pellees testified that there was no standing fence at the location where the appellants’ erected their fence prior to November 1973.

As we have mentioned earlier, there were no findings of fact or conclusions of law. filed and thus we must view the evidence in the light most favorable to the judgment. Accordingly, we find the evidence sufficient to support the judgment of the trial court. Appellants’ point 5 is overruled.

Appellants’ point 6 and 7 generally complain that the trial court abused its discretion in proceeding with the trial when the appellant was not given written notice of the trial. These points are without merit.

The evidence is undisputed and Mr. Hornaday admits that he was informed on April 21, of the trial setting for 2:00 p. m. on May 26. With this specific notification, formal notice of the trial setting was not required. Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 643 (Tex.Sup.1974). Mr. Hornaday made no effort to contact the court or to seek a continuance up to the time of trial. In view of these facts we conclude the trial judge did not abuse its discretion in proceeding with the case. Marchyn v. Silva, 455 S.W.2d 442 (Tex.Civ.App. — San Antonio 1970, writ ref’d n. r. e.). Appellants’ points 6 and 7 are overruled.

The judgment of the trial court is affirmed.


author: ODEN, Justice.

text:
    Sally HOPKINS et al., Appellants, v. Oneta DANIELS et al., Appellees.
    No. 8597.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 26, 1978.
    Rehearing Denied Oct. 3, 1978.

      J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellants.
    Charles E. Thompson, Lovelace & Thompson, Atlanta, for appellees.
   ODEN, Justice.

The appeal has been perfected by the statutory heirs of Bernard W. Hood from a judgment entered against them and in favor of the statutory heirs of Lora Gambell Hood in a trespass to try title action.

In 1926, Bernard W. Hood and Lora Gam-bell Hood were married. In 1947, they separated for several months, however, with that exception they lived together until shortly before Mrs. Hood’s death in 1962. Mrs. Hood died intestate survived by two children by a prior marriage who were entitled to her share of the community estate under Section 45 of the Texas Probate Code. Mr. Hood died intestate in 1975 survived by the appellants, who, as his brothers, sisters and the descendants thereof, were entitled to his estate under Section 38(a) of the Texas Probate Code.

Mr. and Mrs. Hood acquired a 58 acre tract of land in Cass County on September 5, 1939, which was admittedly a part of their community estate at the time of acquisition. Appellants claim that title to the entire 58 acre tract should be awarded to them based upon their proving as a matter of law their allegations that Mr. and Mrs. Hood were divorced on August 23, 1948, in the District Court of Hopkins County, and, at that time, the 58 acre tract of land was set apart to Mr. Hood as part of his separate estate by virtue of a property settlement agreement executed by Mr. and Mrs. Hood on November 28, 1947. Appellees claim an undivided one-half interest in the 58 acre tract as the persons entitled to inherit Mrs. Hood’s interest in the community estate under Section 45 of the Texas Probate Code. They deny the divorce occurred and, alternatively, allege that even if Mr. and Mrs. Hood were divorced, title to the entire 58 acres was not set aside to Mr. Hood as his separate property but rather was held by Mr. and Mrs. Hood as tenants in common because the property settlement agreement was not approved by the court in which the divorce was granted and the decree was otherwise silent as to the division of the 58 acre tract. See Busby v. Busby, 457 S.W.2d 551 (Tex.1970), for ap-pellees’ authority for their alternate allegation. Appellees, upon proof of their alternate allegation, would inherit one-half of the property under Section 38(a) of the Texas Probate Code. The trial court sitting without a jury accepted appellees’ version of the ease and they were awarded judgment for an undivided one-half interest in the 58 acre tract.

We must initially determine if we have jurisdiction to decide the appeal. Mr. Hood was a resident of Marion County at the time of his death and his estate was being administered therein at the time of trial. Appellants claim that exclusive jurisdiction of the suit on appeal was vested in the court exercising original probate jurisdiction in Marion County under Section 5(d) of the Texas Probate Code (Supp.1978) which states, in part:

“All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills. . . .”

Appellees allege that the District Court of Cass County at least had concurrent jurisdiction with the Marion County court. We agree with appellees. The suit is one for the title to land. Article 1906, Tex.Rev.Civ. Stat.Ann., provides, in part, that the district court has jurisdiction in civil cases for the title to land. Section 5(d) of the Texas Probate Code (Supp.1978) did not repeal Article 1906, Tex.Rev.Civ.Stat.Ann. Folliott v. Bozeman, 526 S.W.2d 577 (Tex.Civ.App. Corpus Christi 1975, writ ref’d n. r. e.). In arriving at our decision, we have assumed that the Marion County court which exercised original probate jurisdiction of Mr. Hood’s estate had jurisdiction to hear the controversy under review and for that reason it has not been necessary for us to determine if the controversy involved is a matter “incident to an estate” as that term is used in Section 5(d) of the Texas Probate Code (Supp.1978).

Appellees did not request any findings of fact nor were any filed. It is presumed on appeal under such circumstances that the trial judge found every issue of fact necessary to sustain the judgment provided such fact issue is raised by the pleadings and supported by the evidence. Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951).

The pleadings under review place the existence of a divorce into issue. Appellees, who were plaintiffs in the trial court, alleged in their original petition that the 58 acre tract was part of Mr. and Mrs. Hood’s community estate and that they inherited Mrs. Hood’s one-half interest upon her death. The 58 acres could not have been community property at the time of Mrs. Hood’s death in 1962 if she had been divorced from Mr. Hood in 1948 because the community estate would have been dissolved by the divorce.

Assuming appellees had the burden to prove the non-existence of a divorce, there is evidence in the record to support such a finding. Appellants, in an effort to prove the divorce, introduced the papers in a divorce action styled “Mrs. Lola Hood v. B. W. Hood” and being Cause No. 11753 on the docket of the District Court of Hopkins County in 1948. (Emphasis added.) The papers consisted of a petition for divorce, a waiver of citation, and a divorce decree which was entered on August 23,1948. Ap-pellees denied that the parties to the Hopkins County divorce proceedings were one and the same persons as the Mr. and Mrs. Hood who acquired the 58 acre tract of land in Cass County and in support of their denial pointed out that Mrs. Hood’s given name was “Lora” rather than “Lola” and that the signature of Lola Hood on the petition for divorce was not that of Mrs. Hood. There was testimony to the effect that Mr. and Mrs. Hood were never divorced and that they lived together continuously from 1948 (the year of the alleged divorce) until shortly before Mrs. Hood’s death in 1962. The best evidence of a divorce is normally a decree of a court of competent jurisdiction, United States Fidelity & Guaranty Co. v. Henderson, 53 S.W.2d 811 (Tex.Civ.App. Amarillo 1932, no writ); however, under the circumstances, the introduction of the papers from the divorce proceedings which occurred in Hopkins County District Court in 1948 did not prove as a matter of law that the Mr. and Mrs. Hood who were divorced thereby were one and the same persons as the Mr. and Mrs. Hood who acquired title to the 58 acre tract of land in 1939.

The judgment under review will be affirmed because we must presume that the trial judge found that Mr. and Mrs. Hood were never divorced inasmuch as such a finding will sustain the judgment under review. The 58 acres was community property immediately before the community estate was dissolved by Mrs. Hood’s death in 1962. At that time, appellees, as Mrs. Hood’s surviving children, acquired title to an undivided one-half interest in the 58 acres under Section 45 of the Texas Probate Code.

We have reviewed appellants’ other points of error and find them to be without merit. They are accordingly overruled.

The judgment of the trial court is affirmed.

CORNELIUS, C. J., not participating.


author: GANT, Judge.

text:
    LOUISVILLE BEAR SAFETY SERVICE, INC., Appellant and Cross-Appellee, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellee and Cross-Appellant.
    Court of Appeals of Kentucky.
    Sept. 15, 1978.
    Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellant and cross-appellee.
    James G. Apple, Stites, McElwain & Fowler, William S. Connolly, Gen. Atty., South Central Bell Tel. Co., Louisville, Rex-ford L. Hawkins, Gen. Atty., South Central Bell Tel. Co., Birmingham, Ala., for appel-lee and cross-appellant.
    Before GANT, COOPER and PARK, JJ.
   GANT, Judge.

Appellant, Louisville Bear Safety Service, Inc. (Bear Safety), brought suit for alleged breach of contract and negligence against appellee, South Central Bell Telephone Company (South Central Bell), for a mistake in Bear Safety’s advertisement appearing in the Yellow Pages of the 1973 telephone directory. The advertisement consisted of a standard listing of name, address and phone number, all of which were correct, ⅛ “ancho, the disi Safety’s the anch 461, the referred to as an :ts the reader to Although Bear ed on Page 462, it was on Page e listing itself.

The coi ^>Keu tor $26,440 in compensatory damages and $100,000 in punitive damages. The answer of South Central Bell admitted the mistake but denied any breach of contract or negligence. It further set forth defenses based on the terms of the contract and a disclaimer appearing in the Yellow Pages.

The contract provision: “The telephone company’s liability on account of errors and/or omissions of such advertising shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue, and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred.”
The disclaimer: “The telephone company assumes no responsibility or liability for errors or omissions occurring in the Yellow Pages. Errors or omissions will be corrected in a subsequent issue, if reported by letter to the company.”

These two defenses were ordered stricken on motion of Bear Safety.

At trial, the court entered a directed verdict for South Central Bell on the issue of punitive damages and also apparently entered a directed verdict for Bear Safety on the issue of liability, submitting the case to the jury on the issue of compensatory damages only. The jury returned a verdict in the sum of $1,440, the cost of the ad.

Bear Safety first alleges that the trial court erred in refusing to instruct the jury on punitive damages. In Kentucky and most other jurisdictions, punitive damages are not recoverable in actions based on contract. General Accident Fire & Life Assurance Corp. v. Judd, Ky., 400 S.W.2d 685 (1966). Furthermore, punitive damages are not allowable for negligence unless the action is deliberate, intentional or wanton and malicious in nature. The evidence showed that the error was just that — a typographical or proofreading error with no malice or intentional wrongdoing shown on the part of South Central Bell. Absent this showing, Bear Safety was not entitled to an instruction on punitive damages.

The next assignment of error is the refusal of the trial court to admit evidence of the number of other mistakes in the 1973 Yellow Pages and of the revenue received by South Central Bell from Yellow Pages advertising. We see no prejudice to Bear Safety resulting from the exclusion of this evidence and do not feel it is reversible error.

South Central Bell’s assignment of error on cross-appeal is the failure of the trial court to instruct the jury that its liability must be limited by the terms of the contract to the amount paid for the advertisement. Bear Safety argues that since South Central Bell was guilty of gross wanton negligence the exculpatory clause of the contract does not apply. Since we have already determined that South Central Bell was not guilty of such conduct, that argument is without merit. Bear Safety further argues, however, that the exculpatory clause is unconscionable, relying on the case of Allen v. Michigan Bell Telephone Co., 18 Mich.App. 632, 171 N.W.2d 689 (1969).

The notion of “unconscionability” is an elusive one. Black’s Law Dictionary, Revised 4th Ed., Page 1694, defines an unconscionable contract us “one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.” The Allen case, supra, dealing with substantially the same exculpatory clause as before us, dealt with the unfair bargaining position of the parties and the lack of alternatives for the plaintiff. It is quite true that telephone companies are generally monopolies in each service area and that the Yellow Pages are a unique advertising device for which there is no practical substitute, but the situation here is not one of an uninformed consumer and a coercive or fraudulent company. Bear Safety had been in business and placing ads in the Yellow Pages for many years and was operating from the status of a knowledgeable businessman. Nowhere is it alleged that Bear Safety was unaware of or did not understand the exculpatory clause when it entered into the contract with South Central Bell. Although it may have had no alternative that would provide exactly the same service at comparable cost, there were other means of advertisement available. Furthermore, the fact that South Central Bell is able to limit its liability through the use of this clause probably contributes to the comparatively low cost of the ads.

The majority of jurisdictions which have had the opportunity to consider this question have differed with the Michigan decision, supra. Typical of the cases is the following language:

In summary, the doctrine of unconsciona-bility is used by the courts to police the excesses of certain parties who abuse their right to contract freely. It is directed against one-sided, oppressive and unfairly surprising contracts, and not against the consequences per se of uneven bargaining power or even a simple old-fashioned bad bargain Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, 549 P.2d 903 (1976).

The exculpatory clause used in the instant case by South Central Bell, when applied to the present facts, falls short of unconscionability. See also Robinson Insurance & Real Estate, Inc. v. Southwestern Bell Telephone Co., 366 F.Supp. 307 (D.C.1973); State of Mont. ex rel. Mountain States Telephone & Telegraph Co. v. Dist. Ct. of the 2nd Judicial Dist. of the State of Montana, 160 Mont. 443, 503 P.2d 526 (1972); Stuckey v. Southwestern Bell Tel. Co., 279 F.Supp. 712 (D.C.1967); Gas House, Inc. v. Southern Bell Telephone & Telegraph Co., 289 N.C. 175, 221 S.E.2d 499 (1976).

In the absence of showing oppressive conditions or manifestly inequitable results, it is our opinion, under the facts of this case, that South Central Bell was entitled to an instruction limiting its liability to the contract amount. However, since the jury returned a verdict for only that amount, this is harmless error.

For the reasons stated above, the judgment of the trial court is affirmed.

All concur.


author: PER CURIAM.

text:
    George Frank LINDNER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39675.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Carr L. Woods, Asst. Public Defender, Bowling Green, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Jess L. Mueller, Pros. Atty., Troy, for respondent.
   PER CURIAM.

The primary issue on this Rule 27.26 appeal is whether movant George Lindner (hereafter defendant) was entitled to an evidentiary hearing. The secondary issue is whether the trial court, having preliminarily ordered an evidentiary hearing, could thereafter change its order and deny the motion without an evidentiary hearing. The primary issue is substantive and the secondary issue is procedural.

We conclude that since defendant, as a matter of law, was not entitled to an evi-dentiary hearing the denial of his motion was proper, despite the preliminary order granting an evidentiary hearing.

The case is now before us on defendant’s second appeal. Defendant filed his Rule 27.26 motion after having pled guilty to a three-count robbery charge and being sentenced to three consecutive ten-year terms of imprisonment. Division I of the 11th Judicial Circuit ordered an evidentiary hearing on the motion. Defendant then moved for a change of judge and the case was assigned to Division II. When it came on for hearing the court reconsidered the matter of whether defendant was entitled to an evidentiary hearing and concluded the guilty plea record refuted the contentions of defendant’s motion and denied it. The court did not make findings of fact and conclusions of law and defendant appealed. We did not then reach the issue of defendant’s right to an evidentiary hearing because the trial court had not made findings of fact and conclusions of law; we remanded the case with directions to do so. The trial court complied and then denied defendant’s motion. Defendant has again appealed.

Defendant contends the original order by Division I granting him an evidentia-ry hearing was improperly denied by Division II in ruling on his motion without an evidentiary hearing. Defendant’s right to an evidentiary hearing depended on whether his Rule 27.26 motion alleged facts which entitled him to relief; if it did not, no evidentiary hearing was required.

We hold that if on the record defendant was not entitled by law to an evi-dentiary hearing, he had no right to the order of Division I granting one. The procedural order of Division I granting a hearing must yield to the substantive order of Division II if that division correctly denied defendant’s motion.

We pass to the merits of the trial court’s denial of defendant’s motion. If its allegations are refuted by the guilty-plea record defendant is not entitled to an evi-dentiary hearing. Smith v. State, 513 S.W.2d 407[1] (Mo.banc 1974).

By defendant’s Point Relied On he now contends the trial court erroneously denied an evidentiary hearing “to determine whether movant was induced to plead guilty by promises and whether he received ineffective assistance of counsel.”

By his motion defendant first alleged that before he pled guilty he was led to believe he would receive one 12-year sentence; this, because the prosecuting attorney and his own counsel so agreed in open court.

Defendant was sworn before the court accepted his guilty plea, with opposing counsel present. Fifteen pages of the guilty-plea transcript show defendant answered some three-score of the court’s questions, meticulously probing the defendant’s intelligent and voluntary waiver of a jury trial and the consequences of pleading guilty. Defendant’s contention he was led to believe he would receive only one 12-year sentence instead of the three consecutive 10-year sentences imposed is squarely refuted by the record. Reviewing that record the court found as facts, as we do, that before pleading guilty the defendant understood: the court alone would determine his punishment; the court was not obligated to follow the state’s recommendation or that of his attorney; in view of the number of the charges against him and his prior record, if he pled guilty the court might well sentence him to three terms of life imprisonment and the court could make them run consecutively; the court might well not accept the state’s recommendation and could give him the maximum punishment; that after defendant was advised he might receive the maximum sentence, he was given an opportunity to withdraw his pleas of guilty but expressed a desire not to do so; defendant was not promised anything by way of leniency of sentence to get him to enter his pleas of guilty; defendant admitted committing each of the three crimes with which he was charged. After all interrogation, defendant announced it was still his desire to enter a plea of guilty to each of the three counts. We accept the trial court’s conclusion that “As a matter of law such record affirmatively and conclusively shows that defendant was not misled.”

Defendant’s second Point Relied On contends he was entitled to an evidentiary hearing to determine “whether he received ineffective assistance of counsel.” Defendant’s motion does not challenge the effectiveness of counsel nor does his brief go beyond the above conclusionary quotation. Nothing is preserved for review and we find no error in the trial court’s denial of defendant’s motion without an evidentiary hearing.

Judgment affirmed.

All judges concur.

      . Lindner v. State, 552 S.W.2d 70 (Mo.App.1977).

      . See numerous cases annotated in Note 341 of Rule 27.26, VAMR.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Andrew Lee HARRIS, Defendant-Appellant.
    No. 39102.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 20, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

      Robert C. Babione, Public Defender, Blair K. Drazic, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Presiding Judge.

The defendant-appellant, Andrew Lee Harris, was found guilty by a jury of robbery in the first degree, § 560.120, RSMo. 1969 and was sentenced by the court to fifteen years imprisonment pursuant to the Second Offender Act, § 556.280, RSMo. 1969. Defendant appeals.

Because one of the points assigned as error alleges that the identification procedure used was fatally flawed, it will be necessary to describe the circumstances of the crime and the later identification confrontation in some detail. In so doing, all evidence and favorable inferences tending to support the verdict are taken as true. State v. Harris, 452 S.W.2d 577 (Mo.1970); State v. Oldham, 546 S.W.2d 766 (Mo.App.1977).

A jury reasonably could have found the following.

At approximately 9:45 P.M. on the night of the crime, the victim, Isaac Guyton, was alone in his apartment. He allowed four people to enter: Doris Johnson, who was a friend of his, the appellant and two others. While the appellant brandished a knife at him, the victim was told by one of the four to lie on the floor. Shortly after that, a pillow case was placed over the victim’s head and he was bound by a pair of suspenders. The victim, however, had an opportunity to view the appellant from a distance of about three feet for nearly two minutes before being restrained. The intruders proceeded to ransack the apartment and then departed. After their exit, the victim untied himself and looked out the front door. He saw one of the intruders putting some clothing into the car which then pulled away. Thereafter, the victim called the police who quickly arrived at the scene. The victim described the robbers, the goods taken and, with the greatest detail, the getaway car. A short time following, police officers stopped this car about a half mile from the scene. The appellant was in the front seat and Doris Johnson in the rear. Numerous articles taken from the victim’s residence were also in the car. One of the officers questioned the four passengers, all of whom were then arrested and taken to the station along with the goods.

Once at the police station, the four suspects and at least some of their spoils were placed in a room where the confrontation procedure later took place. There was testimony by the victim that the police summoned him with the words, “we got the man that robbed you.” The police apparently made no attempt to find others in the station of similar appearance to the appellant or the other suspects. Consequently, the actual confrontation included only the four suspects. The confrontation procedure was conducted at about 10:55 P.M., a little more than an hour after the robbery occurred. The victim appeared and positively identified the appellant.

In this appeal, appellant alleges three points of error. In his first he contends that the trial court erred in overruling the motion to suppress the identification testimony of the State’s witness, Isaac Guyton because the pre-trial confrontation procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be violative of the defendant’s due process rights.

When an in-court identification is attacked on the ground that pretrial identification procedures violated due process, the inquiry extends first to a determination of whether the procedures were unduly suggestive, and if they were, whether there is an independent source of identification. State v. Barnes, 537 S.W.2d 576 (Mo.App.1976). Proof of a source of identification independent of the confrontation itself is enough to overcome a claim of unnecessary suggestiveness in the identification procedure. State v. Jones, 528 S.W.2d 14 (Mo.App.1975).

We turn first, therefore, to an examination of the procedure employed in this case. Appellant specifically points out three circumstances which he claims make the confrontation procedure suggestive: 1) Appellant was placed in a pretrial confrontation room with Doris Johnson whom the police already knew had been named by the victim as an accomplice. 2) Stolen property was on the table in front of the appellant. 3) The police summoned the victim saying that they had the robber.

We need not reach the question of whether these circumstances give rise to an unnecessarily suggestive confrontation procedure. It is enough to note that the procedures used by the police in this case were less than exemplary.

Even assuming, but not holding, that the procedures used were unnecessarily suggestive, if the facts of this case indicate that the identifying witness had a sufficient basis in fact for an independent basis of identification then the suggestiveness of the procedure is overcome and the testimony admissible. Jones, supra.

To aid in this determination of whether there exists an independent basis, the U.S. Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), reiterated that the factors to be considered include:

“. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. at 199, 93 S.Ct. at 382.

In the adjudication of this rule, the Missouri Courts have adopted a threefold test, articulated somewhat differently, but of the same scope and intent as in Neil, supra. State v. Parker, 458 S.W.2d 241 (Mo.1970) stated that consideration be given to 1) the presence of an independent basis of identification, 2) the absence of any suggestive influence by others, and 3) positive courtroom identification.

Tested both by the factors laid down in Neil and those articulated in Parker, we turn to the facts at hand. The record shows that the witness viewed the defendant in a well-lighted room at a very close range for several minutes apparently with a high degree of attention. The time elapsed between the incident and the confrontation was slightly longer than one hour. The witness was absolutely certain in his identification of the defendant at the confrontation. Furthermore, the witness testified that his recognition of the defendant was based on his “looks and features” and not on the basis of the articles on the table before him. Finally, at trial, the witness positively identified the defendant as the man who had robbed him. Under these circumstances it is clear that there exists a sufficient basis for the identification independent of the arguably suggestive confrontation procedure. As such, there is little if any likelihood of misidentification. The trial court, therefore, did not err in admitting the identification testimony.

Appellant alleges as his second point of error that the trial court erred in overruling certain hearsay objections made by appellant’s counsel during the direct testimony of two police officers. In each case, the officer on the stand was being questioned as to the replies he received from the occupants of the car concerning certain articles in the car. The statements contested as hearsay were, “[njobody knew nothing about any of the property that was in the car, . . . ” and “[ejverybody in the car denied ownership of the property.”

Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Sabbath v. Marcella Cab Co., 536 S.W.2d 939 (Mo.App.1976); Still v. Travelers Indemnity Co., 374 S.W.2d 95 (Mo.1963); Bond v. Wabash R. Co., 363 S.W.2d 1 (Mo.1962); Mash v. Missouri Pacific R. Co., 341 S.W.2d 822 (Mo.1960); McCormick on Evidence, 2nd Ed. § 246. Tested by this definition, it is clear that the phrases spoken by the officers while on the stand were evidence of statements made out of court. The crucial inquiry, then, is whether the statements by the occupants of the car to the effect that they neither owned nor knew about the stolen items were indeed offered to prove the fact that they neither owned nor knew about those items. We conclude that it is unlikely that the State would introduce evidence which would tend to exculpate by negativing knowledge. It is clear from the record that the statements were not offered to show inferentially, as appellant contends, that since the others in the car denied ownership of the items, the property was in the defendant’s possession. The replies to which the officer on the stand testified do not indicate that it was only the “others” who denied ownership or disclaimed knowledge but, on the contrary, that “everybody” denied ownership and “nobody” knew anything concerning the ownership of the property. The statements, therefore, were not introduced for the purpose of proving the truth of the matters asserted therein. As such, they were not hearsay and any objection on that ground was properly overruled by the trial court.

Appellant’s third point claiming that the Missouri jury selection provision which excuses women from service upon request is violative of the equal protection clause of the Fourteenth Amendment is likewise without merit. It is apparently appellant’s contention that the requirement that a petit jury be selected from a representative cross-section of the community, which is fundamental to the jury trial guaranteed by the Sixth and Fourteenth Amendments, was violated in the selection of the jury that found him guilty.

The constitutionality of a statute is considered in light of the party seeking to raise the question and of the particular application of the statute to him. A constitutional attack may not be made by one whose rights are not, or are not about to be adversely affected by the operation of the statute. State v. Brown, 502 S.W.2d 295 (Mo.1973) cert. denied 416 U.S. 973, 94 S.Ct. 1999, 40 L.Ed.2d 562; see also Kansas City v. Douglas, 473 S.W.2d 101 transferred to 483 S.W.2d 760 (Mo.1971); State v. Toliver, 544 S.W.2d 565 (Mo.banc 1976).

Appellant must allege, therefore, that he has been adversely affected by the application of the rule he challenges, i. e. that the Missouri jury selection process worked to compose a jury which, in this case, did not come from a representative cross-section by reason of the fact that women are excused upon request. The record in the instant case, however, shows the contrary to be true.

On the appellant’s first jury panel of 18, 13 were women and on the second panel of 17, 12 were women. As a result, from a total of 35 potential jurors, 25 were women. It should also be noted that the jury finally sworn was comprised of 11 women and one man.

It is clear that defendant has failed to show that he was prejudiced by the operation of this statute. We hold, therefore, that he lacks standing to challenge its constitutionality.

Moreover, even if this selection process were found to be unconstitutional on the facts of another case, it is difficult to see how the defendant in the instant case was prejudiced by a jury selection panel which consisted of 25 women and 10 men.

The judgment is affirmed.

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

      . Also see State v. Barnes, 535 S.W.2d 602 (Mo.App.1976); State v. Johnson, 539 S.W.2d 493 (Mo.App.1976); State v. Dancy, 541 S.W.2d 35 (Mo.App.1976); State v. McFadden, 530 S.W.2d 440 (Mo.App. 1975); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975); State v. Johnson, 522 S.W.2d 106 (Mo.App.1975); State v. Ealey, 519 S.W.2d 314 (Mo.App.1975); State v. Green, 515 S.W.2d 197 (Mo.App.1974); State v. Hudson, 508 S.W.2d 707 (Mo.App.1974).

      . In his brief, appellant emphasizes that the witness wavered somewhat in his in-court identification of the defendant. Examination of the record indicates that the in-court identification was not absolute. The victim noted that the defendant’s appearance had changed and that he could not recognize him exactly. He did, however, correctly point out the defendant. It is not fatal that, by reason of defendant’s change in appearance over a long lapse of time, the witness’ in-court identification is less absolute than the one made more than two years earlier at the original confrontation procedure. It is sufficient here, especially in view of the other indicia of reliability, that the victim was able to point out the defendant in court as the man who took part in the robbery.


author: CLEMENS, Presiding Judge.

text:
    Randy L. HAMPTON, Appellant, v. AMERICAN FAMILY INSURANCE CO., Defendant.
    No. 39919.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 5, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

      Lawrence 0. Willbrand, St. Louis, for appellant.
    Robert A. Wulff, St. Louis, for defendant.
   CLEMENS, Presiding Judge.

Plaintiff, owner and operator of an automobile involved in an accident, sued defendant, his liability insurer, for damages arising from its failure — as allegedly promised — to report the collision to the director of revenue. Section 303.040, RSMo. 1969, declares: “The operator of every motor vehicle which is in any manner involved in an accident . . . shall within ten days . report the matter in writing to the director. . . . ”

Plaintiff did not report the accident and his failure to do so resulted in a 60-day suspension of his operator’s license.

Plaintiff now seeks damages from his insurer, alleging the insurer failed to file the accident report required of plaintiff by § 303.040. Plaintiff alleged: “Defendant’s agent and employee assured and represented to plaintiff that if he would sign the necessary accident forms, and he did sign the said forms that defendant would file the necessary Notice of Accident form on plaintiff’s behalf with the Department of Revenue, State of Missouri; defendant thereby undertook to file said forms but failed to do so.”

The trial court granted defendant’s motion to dismiss plaintiff’s petition for failure to state a cause of action and plaintiff declined to amend. Plaintiff has appealed from the adverse judgment.

This action is not based on contract — the insurance policy. Under the cited statute it was plaintiff’s duty, not defendant’s, to report the collision to the director of revenue. Plaintiff first pleaded that defendant’s agent gratuitously promised that if plaintiff would sign the report forms the agent would file the report. By interlineation, plaintiff pleaded he did sign the form, but despite an opportunity to amend, plaintiff failed to plead he gave the executed report forms to defendant’s agent for delivery to the director of revenue.

The petition pleads a gratuitous promise, i. e., nonfeasance. Possession of the said form by defendant’s agent is essential to show defendant undertook to execute the gratuitous promise and thereafter negligently failed to do so, i. e., a misfeasance. This fact is not clearly stated and can barely be inferred from the pleadings. The trial court properly dismissed the petition as it does not aver sufficient facts to sustain a cause of action on the ground of misfeasance.

We move to the discretionary issue of how we should dispose of the appeal. It is a well-entrenched principle of appellate review that when a petition does not sufficiently state the defendant’s improper acts the court may, in the interest of justice, remand the case to allow plaintiff to amend. Schmidt v. Kansas City Distilling Co., 90 Mo. 284, 2 S.W. 417, 59 Am.Rep. 16 (1886); Obermeyer v. Hentschel, 389 S.W.2d 203[3] (Mo.1965). For example, in an action for injuries sustained when plaintiff fell through a hole in the floor of a railroad car but failed to plead the essential fact that the hole existed when the car was delivered to defendant, the court in its discretion remanded the case rather than reverse it outright. Markley v. Kansas City Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409[10] (1936). Following this principle, we remand the case to the trial court with directions to allow plaintiff to amend his petition.

Reversed and remanded with directions.

SMITH and McMILLIAN, JJ., concur.


text:
    Rufus P. LANG, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39468.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 18, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.
    Paul E. Corning, Jr., Clayton, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant has appealed the denial of his Rule 27.26 motion whereby he challenged a 15-year sentence, imposed on his 1974 guilty plea. He contended he had been promised a three-year sentence. This is clearly refuted by the guilty plea proceeding, and the trial court so found.

Our review of the record shows the trial court’s judgment is not clearly erroneous, that no error of law appears, and that a full opinion would have no precedential value.

Judgment affirmed. Rule 84.16(b).

SMITH and McMILLIAN, JJ., concur.


author: SNYDER, Judge.

text:
    C. B. H., Petitioner-Respondent, v. R. N. H., Respondent-Appellant.
    No. 38616.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 25, 1978.
    Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

      Hal B. Coleman, Coleman, Ross, Carey, Goetz & Schaaf, Inc., Clayton, for respondent-appellant.
    Steven H. Ringkamp, James Hullverson, Hullverson, Hullverson & Frank, Inc., St. Louis, for petitioner-respondent.
   SNYDER, Judge.

R. N. H. appeals from a decree of dissolution of his marriage to C. B. H. The parties were married in 1954. They have two children, R., Jr., age 19, and K., age 16 at the time of the trial. After nearly twenty-one years of marriage, the wife, C. B. H., filed a petition for dissolution, alleging the marriage was irretrievably broken, which the husband, R. N. H., denied under oath. The trial court made a finding of irretrievable breakdown and awarded maintenance, child support and attorneys’ fees to the wife.

The husband raises four issues on appeal claiming that: (1) the court’s finding that the marriage was irretrievably broken is not supported by substantial evidence and is against the weight of the evidence; (2) the court erred in its award of maintenance; (3) the court erred in finding the residence of the parties to be marital property and in awarding certain household items to the wife; and (4) the court erred in awarding attorneys’ fees to the wife. These points are ruled in favor of the wife and the judgment is affirmed.

The trial court very briefly heard evidence on May 6, 1976. The wife testified the marriage was irretrievably broken; the husband testified it was not. Under the authority of § 452.320.2 the court continued the case for 60 days to allow the parties to seek counseling.

When the hearing resumed on July 15, 1976, the wife again testified that the marriage was irretrievably broken. Asked on direct examination whether it was her husband’s objectionable behavior that led her to that conclusion, she answered without objection that it was. She testified she felt the marriage had never been a partnership, that her husband ran everything and controlled all the money, that there was no communication between them and that her husband had rejected her sexually for the last three years. He refused to discuss these and other problems with her or to seek counseling. She said the strain and tension had disturbed the children and the marriage’s general deterioration had left her with feelings of rejection and mental anguish. In sum, she felt all the love had gone out of the marriage.

The husband testified that he had stood by his wife when she had experienced problems with drugs and alcohol, and believed they could weather this problem as well. The marriage, in his opinion, was not irretrievably broken; he loved his wife and attributed her desire for dissolution to “another mood” she was going through. He believed the marriage could be saved through counseling.

On August 25, 1976, the trial court entered its judgment granting a decree of dissolution. The court determined “as a matter of fact that the marriage is irretrievably broken." In accord with the children’s expressed preferences to the judge without the presence of the parties, custody of R., Jr. was granted to the husband and custody of K. to the wife. The court awarded $496,115.14 in separate property to the husband and $23,746 in separate property to the wife. The family home, with a stipulated value of $75,000, and $17,000 in other assets were found to be marital property. The wife was awarded the home; the husband the remainder of the marital property. Each party was awarded household personal property and an automobile. The wife was awarded maintenance of $1,500 per month and child support of $300 per month. The husband was ordered to pay $4,900 in attorneys’ fees for his wife. Costs were also assessed against him.

Appellate review of a court tried case is governed by Rule 73.01 and the case of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977). The judgment or decree of the trial court must be affirmed “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law” and “[ajppellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy, page 32[1, 3].

I. The Trial Court’s Finding of Irretrievable Breakdown

The husband urges that the judgment on this point is without substantial evidence and is against the weight of the evidence.

When the respondent in a dissolution action has denied under oath that the marriage is irretrievably broken, the petitioner must satisfy the court of one or more of the five facts or conditions set out in § 452.320.2 in .order for the court to find irretrievable breakdown. In re Marriage of Uhls, 549 S.W.2d 107 (Mo.App.1977); In re Marriage of Mitchell, 545 S.W.2d 313 (Mo.App.1976).

From the testimony it is evident the wife was attempting to satisfy the court “[t]hat the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” § 452.320.2(l)(b). There was substantial evidence of such behavior on the husband’s part.

The evidence detailed earlier of the husband’s domination, financial differences, sexual rejection of his wife, breakdown of communications, the husband’s refusal to agree to counseling when it might still have been beneficial, and his saying that he was “sick and tired of everything and wanted a divorce,” constituted behavior on his part which justified a finding that the wife could not reasonably be expected to live with him.

The husband cites In re Marriage of Mitchell, supra, and argues that in this case, as in Mitchell, it is the conduct of the wife-petitioner and not the husband-respondent, which made it unreasonable to expect one party to live with the other. But this case is distinguishable from Mitchell. In Mitchell there was no evidence of objectionable behavior on the part of the respondent. Here there was substantial evidence. The behavior upon which the finding of irretrievable breakdown was made was that of the husband during the four years immediately preceding the filing of the petition.

The husband, in contrast, emphasizes his wife’s past drug and alcohol problems to support his argument that her conduct is at fault, forgetting, apparently, that her drug problem was resolved twelve years, and her alcohol problem five years, before the trial.

The husband’s argument that his wife was using her own acts of misconduct to justify or warrant the court’s finding of irretrievable breakdown is rejected.

The husband claims error because the wife failed to amend her petition to allege details of his complained of behavior as grounds for the irretrievable breakdown of the marriage and the granting of the decree of dissolution. The point is not well taken.

Under our procedure, issues not raised in the pleadings may be tried by consent of the parties and where so tried, they are treated as if they had been pleaded. Amendment of the pleadings, even though not formally requested, is presumed and will not affect the trial of the issues. Rule 55.33; Murphy v. Murphy, supra at 952[2].

In re Marriage of Uhls, supra, page 110[6, 8],

Not only did the husband fail to object to the wife’s testimony on this issue, he then went forward and introduced evidence favorable to his position. The issue raised under § 452.320.2(l)(b) was tried by the consent of the parties and is ruled against the husband.

II. The Maintenance Award

The husband argues: (1) maintenance should not have been granted because his wife’s need for maintenance was not shown; (2) the award was excessive; and (3) the court erred in failing to set a fixed duration of time for the payment of maintenance.

The first argument is based on the wife’s failure to offer into evidence the cost of living and expense sheet on which her request for maintenance of $2,224 a month was based. The husband contends that without the admission of this document, there can be no substantial evidence to support the $1,500 a month maintenance award.

The record shows that the wife’s expense list was marked as Exhibit No. 1. She testified at length on its contents. It was not, however, offered into evidence. In spite of this, the wife requests that it be considered. In support of her request, the wife has cited cases involving documents which were admitted into evidence but then were either lost or not included in the record on appeal. These cases are not in point because here the expense list was never received in evidence and the presumption indulged in the cited cases, that the evidence was favorable to the judgment, does not arise. Her expense list cannot be considered. Even so, the award is supported by substantial evidence.

The list contained categories for taxes, utilities, auto, home, cleaning lady, food, dairy, insurance, personal, charity, travel, vacation and clothing. It was prepared from the couple’s 1974 and 1975 income tax returns and from the husband’s costs of living sheets for 1974 and 1975. From it, the wife calculated her monthly expenses at $2,224.

As part of his case, the husband introduced his 1974 expense sheets. They also contained detailed breakdowns of family expenditures for taxes, utilities, auto, home, cleaning lady, food, dairy, insurance, charity, travel, vacation and clothing, the same items testified to by the wife from her •expense list. In fact, she obtained her figures from her husband’s expense sheets. The evidence of those figures is before the court.

Despite the husband’s claim that it is impossible to separate the wife’s expenses from the family expense sheets, many of the expenses will be substantially the same for the wife as for the entire family. Other expenses were broken down as to allow clear identification of their source. The court knew the amount per month the wife claimed to need and it had detailed evidence of the amounts spent on her living expenses in the recent past. Substantial evidence of the wife’s needs was before the court.

The husband says an examination of all of the factors listed in § 452.335.2 proves the $1,500 a month award to be excessive. Our standard of review is whether the trial court has abused its considerable discretion in the granting of maintenance. Jaeger v. Jaeger, 547 S.W.2d 207 (Mo.App.1977). We do not interfere unless an abuse of that discretion has been shown by the appellant. In re Marriage of Galloway, 547 S.W.2d 193 (Mo.App.1977); Suesserman v. Suesserman, 539 S.W.2d 741 (Mo.App.1976). “ ‘An abuse of discretion is an erroneous finding and judgment which is clearly contrary to the facts or the logical deductions from the facts and circumstances before the court — a judicial act which is untenable and clearly against reason and which works an injustice.’ State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973).” State v. Letourneau, 515 S.W.2d 838, 844[6] (Mo.App.1974). Beckman v. Beckman, 545 S.W.2d 300, 301[1] (Mo.App.1976).

Section 452.335.2 sets out a list of factors for the court’s consideration in setting the amount and duration of maintenance. An examination of these factors and the applicable evidence shows the court did not abuse its discretion in setting maintenance at $1,500 a month.

The wife’s financial resources are not great. Of the $23,746 in separate property awarded her, $10,366 is the cash value of a life insurance policy owned by her on the husband’s life. The remainder is in coins and foreign currency. By her undisputed testimony the wife was holding these for her mother at the request of her father who is deceased. She was awarded a car and the family residence free of encumbrances, but the former is an expense as well as an asset and the latter is necessary to provide a home for the minor child entrusted to her custody. The household items awarded her are necessary furnishings for the home. She has no cash for current living expenses.

The wife was 44 at the time of this proceeding. Her physical and emotional health were good. Aside from volunteer work, she stayed at home, supervised the house and raised the children during the 21 years of the marriage. She has been out of the job market for many years. According to the testimony of a personnel agency office manager, the wife would need a year to acquire the secretarial skills necessary to find employment.

The standard of living enjoyed by these parties during the 21 years of their marriage was, by their own admission, quite high. Whether it was extravagant in light of their income and social status is debatable and involves highly personal standards.

The husband’s gross income for the years 1970 through 1974 varied between a low of $76,312 (1972) and a high of $80,586 (1974). The court awarded him $455,682.87 in stock as his separate property and $17,832 in marital property (stock, pension plan, bank accounts). He was also awarded household furnishings and personal items. He received custody of R., Jr., now age 21. Taking his income, his assets and his expenses together, the husband should be able to meet both his wife’s and his own needs.

The husband asserts that his wife’s conduct was such that it would necessarily prohibit her from an allowance of any substantial award of maintenance. The only misconduct alleged is the wife’s drug and alcohol use. However, she successfully overcame these problems some years ago. There is no evidence of misconduct on her part during the four years immediately preceding the filing of the dissolution petition which could be considered in determining the amount of a maintenance award. There is no basis for denying her maintenance as a punishment. In re Marriage of Carmack, 550 S.W.2d 815 (Mo.App.1977).

The trial court’s concern in making a maintenance award is the reasonable needs of the spouse seeking maintenance. Brueg-gemann, supra, page 857. Considering all the factors outlined in § 452.335.2 the trial court did not abuse its discretion in making this award. The parties’ standard of living, the husband’s assets and income, the duration of the marriage and the wife’s minimal earning power and assets all support the award. The standard of living enjoyed during the marriage was properly given emphasis. Brueggemann, supra, page 857.

The husband also argues that the trial court erred in failing to set a fixed duration of time for the payment of maintenance which he states is required by the statute. He cites no cases to support his assertion that § 452.335 requires the court to set a termination date for the maintenance payments. In fact, this court has taken an unfavorable view toward prospective termination in the absence of evidence that the circumstances of the parties are likely to change in the future. In re Marriage of Powers, 527 S.W.2d 949 (Mo.App. 1975); In re Marriage of Valleroy, 548 S.W.2d 857 (Mo.App.1977); LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977). There was no such evidence here. Prospective termination would have been highly speculative and an abuse of discretion. Valleroy, supra; LoPiccolo, supra. If circumstances in fact do change in the future, the husband may file a motion to modify.

III. Division of Marital Property

The husband claims that the trial court erred in determining that the family home was marital property. The house was purchased in 1960 for $42,500, six years after the parties were married. The house was titled in the husband’s name alone. A mortgage of $28,000 was taken at purchase. Payments on the mortgage apparently were made during coverture and the outstanding balance of $24,000 was paid off in 1964 or 1965 by the husband’s mother.

“Marital property” is defined in § 452.-330.2 as “all property acquired by either spouse subsequent to the marriage . . . .” The statute then lists exceptions to this definition. The husband contends he used the proceeds of the sale of stock he owned prior to the marriage for the purchase of the house. Therefore, he says, the house is separate property because it falls under § 452.330.2(2) which excepts property acquired subsequent to the marriage if it was “acquired in exchange for property acquired prior to the marriage.”

Section 452.330.3 creates a presumption that all property acquired subsequent to the marriage is marital property regardless of the status of title to the property. The presumption applies here but may be overcome by a showing that the property was acquired by a method listed in § 452.330.2. The burden of proving that the property comes under one of the exceptions falls on the party attacking the presumption. Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975); Jaeger, supra, page 210.

The husband has not cited any transcript reference to support his briefed position that the funds for the purchase of the house came from the sale of stocks he had purchased before the marriage. There was no evidence as to the exact source of the money used for the down payment. Therefore, the husband has failed his burden of proof and has not overcome the presumption embodied in § 452.330.3. The trial court properly found the residence to be marital property.

The husband also disputes the award of two items of personal property to the wife, a portable Sony radio and a silver and crystal candelabra with matching epergne. The record supports the award of these items to the wife. Therefore, the trial court’s ruling as to these relatively minor items is affirmed.

IV. Attorneys’ Fees

Finally, the husband complains the trial court erred in granting the wife $4,900 in attorneys’ fees. There is no dispute as to the reasonableness of the fees.

“The governing rule is that the allowance of attorneys’ fees to a wife is discretionary with the trial court and is to be exercised in view of the circumstances of both parties, including the ability of the husband to pay. (cites omitted).” S.G.E. v. R.L.J., 527 S.W.2d 698, 703[6] (Mo.App.1975). An appellate court may interfere only if there has been an abuse of discretion. Brueggemann, supra.

Considering the size of the fees, the wife’s lack of liquid assets (the $13,380 separate property awarded to her is held by her for her mother), the husband’s income and assets and the disparity in the parties’ means to pay, there was no abuse of discretion. Ortmann v. Ortmann, 547 S.W.2d 226, 231[8, 9] (Mo.App.1977).

The judgment is affirmed in all respects.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . All statutory references are to RSMo 1969, Cumulative Supplement 1975.

      . Section 452.320.2 reads as follows:
      2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall
      (1) Make a finding whether or not the marriage is irretrievably broken, and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts:
      (a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
      (b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
      (c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
      (d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
      (e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; or