text:
    Abelardo PENA, as Independent Executor, Appellant, v. Leticia Pena SALINAS and Abel Pena, Appellees.
    No. 1073.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 29, 1976.

      Pedro P. Garcia, Corpus Christi, for appellant.
    W. J. Nutto, Bonilla, Read, Nutto, Bonil-la, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from a summary judgment in favor of Leticia Pena Salinas. Abelardo Pena, as Executor of the Estate of Amador Pena, sought to compel Leticia Pena Salinas, and Abel Pena, to surrender all monies which they had theretofore received under insurance policies owned by Amador Pena, Deceased, which named them beneficiaries thereof.

The parties stipulated: 1) “there are no facts in controversy”; 2) Amador Pena executed a will on May 16, 1973, and died on May 17, 1973; 3) Amador Pena owned three life insurance policies, two of which designated Leticia Pena Salinas a beneficiary; the other designated Abel Pena as beneficiary; 4) Amador Pena, in the will,' left all of his estate to Leticia Pena Salinas, Jose Pena, Amador Pena, Jr., and Sofia Pena, his children, share and share alike; 5) the will provided that all proceeds from life insurance policies were to be paid to the above named children, regardless of the named beneficiary in the policies; 6) the will was probated and Abelardo Pena and Leticia Pena Salinas qualified as co-executors thereof; 7) after the execution of the will, “no steps were taken by the decedent to change the beneficiaries”, 8) the insurance companies paid the proceeds directly to the beneficiary named in the respective policy.

Abelardo Pena, in his capacity as executor, brought suit to require the beneficiaries of the aforesaid insurance policies “to surrender all of the funds received by them through the insurance policies”, Leticia Pena Salinas answered; Abel Pena did not. A non-suit was taken as to Abel Pena.

Leticia Pena Salinas, filed a motion for summary judgment, wherein she stated that the provision in the will that all life insurance proceeds be paid to the decedent’s estate, as a matter of law, was insufficient to change the beneficiaries named in the policies, and, therefore, she was entitled to the proceeds of the policies that named her as the beneficiary thereunder. Copies of the two insurance policies that named her as beneficiary were attached as exhibits to affidavits. The Mutual of New York Policy provided:

“A Participant may change the beneficiary during his lifetime by written notice to Mutual of New York . . .”

The other policy (with the Great American Reserve Insurance Company) provided:

“Any Employee insured hereunder may designate a new beneficiary at any time by filing with the Employer a written request for such change . . .”

Abelardo Pena also moved for summary judgment, wherein he contended that the provision in the will should be given effect. In support of his motion, he offered the affidavit of the decedent’s attorney stating that it was the decedent’s wish that the proceeds of the insurance policies be paid as provided in his will.

The trial court granted Leticia Pena Salinas’ motion and denied that of Abelardo Pena. The plaintiff, Abelardo Pena, has timely perfected an appeal to this Court.

Appellant’s points of error read, as follows:

“First Point
The trial court should have held that as a matter of law, the said Appellee, Leticia Pena Salinas, was estopped from contesting the petition.
Second Point
In the alternative, the trial court should have held that there were issues of fact which should have been submitted to a jury on the questions of estoppel.
Third Point
The trial court should have held that there were issues of fact on the question of whether or not Amador Pena did all he could have done under the circumstances then existing to change the beneficiaries on the said insurance policies.”
The points cannot be sustained.

The party asserting estoppel must allege the facts that are essential to the existence of estoppel with particularity and precision; no intendments are made in favor of the plea. 22 Tex.Jur.2d, Estoppel, § 20. “Before an estoppel can arise as a matter of law, there must be certainty to every intent, and the facts alleged to constitute estoppel are not to be taken by argument or inference.” Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n.r.e.).

The party claiming estoppel has the burden of proving the essential elements thereof. Concord Oil Co. v. Alco Oil & Gas Corp., 387 S.W.2d 635 (Tex.Sup.1965).

Apparently, appellant contends that appellee should be estopped from asserting a defense to the cause of action brought against her because of the oath which she took when she qualified as an executrix of the will. The only allegations in the petition that could possibly have any bearing on the asserted estoppel are:

“. . . There has never been any objection to the validity of this will by the Defendants herein. As a matter of fact, the said Leticia Pena Salinas, . did state upon her oath that . . . she was well and truly going to perform all of the duties required of her under the terms of said will . . .”

There is no allegation that appellee should be estopped from claiming the proceeds of the insurance policies because of any acceptance of benefits of any kind. The contents of the oath which appellee took when she qualified as an executrix under the will are not disclosed either in the stipulation of facts or in the summary judgment proof. The words constituting the oath will not be supplied by argument or by inference. We know of no reason, rule, or law that prohibits a beneficiary of a life insurance policy from qualifying as an executor under the decedent’s will, and, at the same time, retaining the proceeds of a policy that named him as a beneficiary under a policy which was owned by the decedent. Appellee’s conduct does not constitute a basis for estoppel. Appellant has not pled estoppel. Hutchinson v. Texas Aluminum Company, 330 S.W.2d 895 (Tex.Civ.App.—Dallas 1959, writ ref’d n.r.e.).

Appellant did not file a formal reply to appellee’s motion for summary judgment. Neither the stipulation of facts nor the summary judgment proof offered by either party reveal anything that would estop appellee “from contesting the petition”, as averred by appellant in his first point. Since all factual matters were stipulated, there were and could be no factual issues outside of the stipulation. Appellant is in no position to argue in this Court that “there were issues of fact which should have been submitted to a jury on the question of estoppel”, as claimed in his second point. In addition to what has already been said which prevents our sustaining appellant’s first and second points, the question of estoppel has been waived. Fidelity Land & Trust Co. of Texas v. City of West University Place, 496 S.W.2d 116 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n.r. e.); White v. State, 329 S.W.2d 446 (Tex.Civ.App.—Dallas 1959, writ ref’d n.r.e.). There is no general assignment that the trial court erred in granting a summary judgment in favor of appellee because of estoppel. Under the record here presented, estoppel could not form the basis for denying appellee’s motion for summary judgment. The first and second points of error are overruled.

Giving a most liberal construction to appellant’s third point of error, the point seems to be that the trial court erred in rendering summary judgment because there were material issues of fact as to “whether or not Amador Pena did all that he could have done under the circumstances then existing to change the beneficiaries on the said insurance policies”. We consider the point. Appellant relies solely on the statements contained in the affidavit by his attorney and in the fact that Amador Pena died within 24 hours after he signed the will. The applicable portion of the affidavit reads, as follows:

“Before the death of the said Amador Pena, I was doing some probate work for him in the sale of some property left to him and his children by his deceased wife. A few days before his death, he asked me to look at a will whereby he had left hsi (sic) daughter, Leticia Pena Salinas as the sole executrix of his will. However, at that time, the said Leticia Pena Salinas was having some marritial (sic) problems and had other personal problems and Amador Pena wanted me to change that will which he tore up in my presence. During that time, Amador Pena had been in and out of the Doctor’s Hospital with a diagnosis of cancer. Two days before his death, hd (sic) called me by telephone and asked me to please expedite the writing of the will so that he could sign it. On the afternoon before his death, the will was finally completed and taken to Ama-dor Pena at the Doctor’s Hospital for his review and execution. The will was signed at about 9:00 o’clock that night. The following day, at about 7:00 o’clock in the evening, the said Pedro P. Garcia was informed that earlier in the day, Amador Pena had died. During my conversations with Amador Pena, he could not remember who the named beneficiaries were in his wills but had indicated that he wanted all of his children to share equally in the proceeds of the life insurance policies.”
/s/ Pedro P. Garcia_
PEDRO P. GARCIA, AFFIANT

The proceeds from the insurance policy to be paid to a designated beneficiary upon the death of the insured becomes a vested right upon the death of the insured and should be paid to the beneficiary unless from some contingency the beneficiary is not entitled to recover the same. Tex.Ins. Code Ann. art. 3.48; McFarland v. Franklin Life Insurance Company, 416 S.W.2d 378 (Tex.Sup.1967). In this case, when the insured took out each policy, a contract was formed and all provisions contained within the policy became binding upon the parties to the contract. The two insurance policies involved herein both contained language specifically providing for the manner and method of changing beneficiaries. Such provisions have been upheld by our Courts as valid and binding. Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100, 1103 (Tex.Com.App.1938).

The test for determining whether the requirements of a life insurance policy to change the beneficiary have been met is not strict compliance but “substantial compliance”. Garabrant v. Burns, supra. In essence, this means the policy defines the method by which the insured may change the beneficiary and the insured must substantially comply with that method in order to change the beneficiary. Fidelity Union Life Insurance Company v. Methven, 162 Tex. 323, 346 S.W.2d 797 (1961); Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520 (1952); Todd v. Mutual Benefit Life Insurance Company, 483 S.W.2d 889 (Tex.Civ.App.—Waco 1972, writ ref’d n.r.e.).

“Substantial compliance” in terms of its application to the change of a beneficiary provided for in the policy means the “insured” has done all that he reasonably could have done to effect the change. Tips v. Security Life and Accident Company, 144 Tex. 461, 191 S.W.2d 470 (1945); Kotch v. Kotch, supra; Todd v. Mutual Benefit Life Insurance Co., supra.

In making our determination on whether the insured has substantially complied with insurance company requirements, there is no hard and fast rule. Each case must be decided on its own set of facts as to what was done or caused to be done by the insured. Porter v. Garner, 386 S.W.2d 618 (Tex.Civ.App.—El Paso, 1965, writ ref’d n.r. e.).

In Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101 (1953), the testator, B. B. Barnes took out several life insurance policies which named his mother, a daughter and a sister as beneficiaries. The policies contained “change of beneficiary” provisions similar to those present in this case. B. B. Barnes, subsequent to the issuance of the policies, by a will which was duly probated, purported to change the beneficiaries from those persons originally designated by him to his wife. The will provided: “Each of these three policies is being made payable solely to my wife.” It was stipulated that B. B. Barnes never forwarded any request for a change of beneficiaries to the Insurance Company. The Supreme Court held that the named beneficiaries in the policies were entitled to the proceeds from the policies. The Court noted that there was no doubt but that B. B. Barnes knew what was necessary to be done in order to change beneficiaries since he had, prior to the making of the will, changed beneficiaries originally named in some of the policies. The Court said:

“To permit a change of beneficiary by a will in disregard of provisions in a policy which have the same or similar requirements as to method of change, as these two policies of insurance here, would bring about much uncertainty and litigation as to payment of life insurance policies. Prompt payment of life insurance to those who are the beneficiaries is of inestimable importance to those who are left behind at the death of an insured. Delay and confusion resulting in unnecessary hardship should be avoided.”

The Courts of Civil Appeals have also been faced with the question of “substantial compliance” in the matter of changing beneficiaries in a life insurance policy. Some of those cases are noted in the next succeeding four paragraphs.

In Gladding v. Prudential Insurance Company of America, 521 S.W.2d 736 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n.r.e), the court sustained the contention that “substantial compliance” is met when the insured fills out a change of beneficiary form which is rejected for inaccuracies and is not properly filled out before she dies.

In Todd v. Mutual Benefit Life Insurance Company, 483 S.W.2d 889 (Tex.Civ.App.—Waco 1972, writ ref’d n.r.e.), the contention was rejected that the test is met when the insured acquires the proper forms, gets an attorney to put in the proper wording but has the form rejected by the company and dies before being able to properly fill it out.

In Rector v. Metropolitan Life Insurance Company, 506 S.W.2d 696 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.), the Executrix and Trustee brought suit against the insurer to recover the proceeds under a life insurance policy that was payable to the testator’s daughter, who was also the sole devisee and legatee under the will. The question there presented was whether the trust provisions in the will entitled the Executrix and Trustee to recover the money in trust for the child. It was held that the will could not and did not alter the designation of beneficiary under the Insurance contract. The Court said:

“ . . . The proceeds of the life insurance policies became the property of the insured’s daughter upon his death. They did not come into possession of the trustee .. . ”

In Thatcher v. Conway, 296 S.W.2d 790 (Tex.Civ.App.— Beaumont 1956, no writ) it was stated:

“ . . .A testator, of course, has the right to dispose of all his property by will. The testator here had no power or authority to change the beneficiary in his life insurance policies by will. His attempt to cause the proceeds of policies to be paid to the trustees named in his will was of no effect, because upon his death his estate and the executors and trustees thereunder had no interest in the proceeds of the life insurance policies. The insurance proceeds became the property of another at the time of his death. They became payable to the beneficiary named therein. Wipff v. Wipff, Tex.Civ.App., 209 S.W.2d 947.”

Appellee, in the instant case, moved for summary judgment on the ground that she was the designated beneficiary under the policies at the time of her father’s death. Her summary judgment proof conclusively established her claim. Appellant did not actively dispute the summary judgment facts, but sought to avoid the effect of appellee’s pleadings and evidence by showing that the beneficiaries who were named in the policies were changed by the execution of the will. Neither the decedent (Amador Pena) nor his attorney complied with the provision in each policy that would have effectuated a change of beneficiaries. Appellant’s summary judgment proof failed to raise an issue of fact concerning whether or not the decedent did all that he could reasonably have done under the circumstances.

In Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958), it was held:

“Where the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense . . .”

Here, the summary judgment proof shows that the testator was conscious and wanted to change his will in a particular and vital area, and indicated that he wanted all of his children to share equally in the proceeds of the policies. He discussed the matters with his attorney. The new will was drawn and executed within a matter of hours after his conference with his attorney. There is no showing in this record, and no intimation in appellant’s brief, that any effort was made by either the decedent or his attorney to change the name of the beneficiary in any of the three policies except by the directions and provisions in the will itself. Such is not sufficient. Creighton v. Barnes, supra. The test of “substantial compliance” was not met in this case. Appellant’s third point is overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    SOUTHERN SAVINGS AND LOAN ASSOCIATION, Appellant, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 5520.
    Court of Civil Appeals of Texas, Waco.
    April 29, 1976.
    Rehearings Denied May 27, 1976.
    Clark, Thomas, Winters & Shapiro, Conrad P. Werkenthin, Mary Joe Carroll, McKay & Wash, John J. McKay, Austin, for appellant.
    John L. Hill, Atty. Gen. of Tex., Thomas M. Pollan, Asst. Atty. Gen., Larry E. Temple, Austin, for appellees.
   HALL, Justice.

Our opinion in this cause dated April 8, 1976 is withdrawn, and the following opinion is substituted therefor.

The charter application for a new savings and loan association to be named Investment Savings And Loan Association and to be located in Brownwood was approved and granted by the Savings And Loan Commissioner. On appeal to the District Court, the Commissioner’s order was affirmed. We affirm the trial court.

The order granting the charter is dated November 4, 1974. On the same day, the Commissioner mailed a copy of the order to the applicants’ attorney, with a letter of transmittal. In the letter, which also enclosed the charter certificate, three certified copies of articles of incorporation, three certificates regarding filing of and approval of articles of incorporation, and three certified copies of bylaws, the Commissioner stated, “These instruments are being delivered to you with the understanding and agreement that they are contingent on the following terms and conditions, and I shall expect full compliance [therewith].” Among the “terms and conditions” are these:

“a. The securing of insurance of accounts through the Federal Savings and Loan Insurance Corporation prior to opening with the understanding that if insurance is denied, the charter will be surrendered with the request for cancellation. You are to make your application for insurance of accounts immediately upon receipt of charter and to pursue same diligently for a determination.
“b. All stock issued and outstanding shall be immediately forwarded to the Savings And Loan Commissioner of Texas to be escrowed pending the securing of insurance of accounts from the Federal Savings And Loan Insurance Corporation. Escrowed stock will be returned to the Association after insurance is obtained

The Commissioner’s order unconditionally approves the application and grants the charter. The order does not mention the transmittal letter, nor incorporate any extraneous instrument as a part of its provisions. It is unambiguous, final, and complete in its terms, and contains all of the requisites for such order set forth in Sec. 2.08 of Article 852a, Vernon’s Tex.Civ.St. It fully disposes of all issues before the Commissioner for determination.

Although the order of the Commissioner granting or refusing a charter application is an administrative decision reviewable under the substantial evidence rule, it has incidents and properties not unlike those attached to the judgment of a regularly constituted court, and it is similar in its effect to such judgment. It is the settled rule that extrinsic evidence is not admissible to amplify, modify, contradict, or otherwise vary a completed, unambiguous judgment; nor is it admissible to show the intention or understanding of the trial judge in rendering it. Collins v. Ball, 82 Tex. 259, 17 S.W. 614, 616 (1891); Bexar County v. Hatley, 136 Tex. 354, 150 S.W.2d 980, 987 (1941); 23 Tex.Jur.2d 570, Evidence, Sec. 382; 2 McCormick & Ray, Texas Law Of Evidence 470, Sec. 1615 (2d ed. 1956); 32A C.J.S. Evidence § 865, p. 233; 98 A.L.R. 1239. It is our view and holding that the letter of transmittal was not admissible on the trial to vary the terms of the order or to show that the Commissioner intended or understood that the granting of the charter was conditioned upon the securing of federal insurance by the applicants; and the trial court properly refused to consider it for this purpose. This holding disposes of the appellant’s contentions that either (1) the letter renders the order conditional and interlocutory and the cause must therefore be returned to the Commissioner, or (2) the letter shows that the Commissioner intended to charter only a new federally insured savings and loan association and the matter must therefore be remanded for him to determine whether there is a need for a new association without regard to whether it can or will obtain insurance of its accounts. The holding also renders immaterial an exhibit containing certain federal guidelines which was offered by the protestants to show that the proposed new association and its directors could not qualify for federal insurance.

We do not decide the question of whether the Commissioner can legally condition the granting of a charter application on the securing of federal insurance of accounts. We simply hold that he has not done so here.

An exhibit offered by the applicants which contains biographical data about each of the proposed organizing directors of the new association was admitted into evidence over the objection that it was hearsay. A number of required findings made by the Commissioner in support of his order, approving the charter are based upon this biographical information which, if it is hearsay, is legally insufficient to support the findings.

The exhibit was offered during the testimony of the witness Barnes, who is also an applicant-organizer and proposed director. He testified that the biographies were prepared by each of the individuals indicated; that he was personally acquainted with each of the individuals; that the biographical information contained in the exhibit is correct. Specifically, he testified that though the data was not prepared by him it was assembled by him; that he is “personally acquainted with each and everyone” of the individuals to whom the data relates; and that “to the best of my knowledge, the information contained in those biographies [is] true and correct . . . I’ve known each one of these men for many years and I know the data, in generalities, the data on their biographical data sheets to be absolutely factual. I said I had not verified every specific item.”

All of the individuals listed in the biographical sheets, including the witness Barnes, reside in Brownwood. The information related on each in the exhibit is uniform and includes personal data such as birth date, marital status, family, and residence; formal education; business and professional background, interests, and memberships; community involvement; and personal honors. No objection was made with respect to the actual knowledge of the witness of the information in the exhibit; and he was not seriously cross-examined as to his personal knowledge thereof.

The record does not show that it is impossible for the witness to have had sufficient personal knowledge to verify the biographical information in the exhibits. In view of his testimony that he is personally familiar with the data and that it is correct, the exhibit is not objectionable as hearsay. Dodson Brothers Builders v. Adkins, 275 S.W.2d 143, 145 (Tex.Civ.App.—El Paso, 1954, no writ hist.); Richardson v. Missouri-K.-T. R. Co. of Texas, 205 S.W.2d 819, 823 (Tex.Civ.App.—Fort Worth, 1947, writ dism.); Panhandle & S. F. Ry. Co. v. Clarendon Grain Co., 215 S.W. 866, 867 (Tex.Civ.App.—Amarillo, 1919, no writ hist.); Texas & P. Ry. Co. v. Birdwell, 86 S.W. 1067, 1068 (Tex.Civ.App., 1905, no writ hist.); 1 McCormick & Ray, Texas Law Of Evidence 578-81, Sec. 793 (2d ed. 1956). This is so even though the witness might not be familiar with “every specific item” in the exhibit. Texas Employers’ Insurance Association v. Rogers, 368 S.W.2d 21, 24 (Tex.Civ.App.—Amarillo, 1963, writ ref., n. r. e.); Norris v. Lancaster, 280 S.W. 574, 576 (Tex.Com.App., 1926); 24 Tex.Jur.2d 64, Evidence, Sec. 561.

The information contained in the exhibit is substantial and fully supports the findings based thereon.

The appellant’s remaining points and contentions are without merit. All are overruled. The judgment is affirmed.


author: PER CURIAM.

text:
    W. C. H., III, a minor, Relator, v. Byron MATTHEWS, District Judge, et al., Respondents.
    No. 17785.
    Court of Civil Appeals of Texas, Fort Worth.
    April 30, 1976.

      Wardlaw, Neal, Brady & Roberts, Fort Worth, for relator.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, for respondents.
   OPINION

PER CURIAM.

Hearing was of a Petition for Writ of Prohibition.

The sixteen year old minor in this case was one as to whom the juvenile court had waived its exclusive original jurisdiction and certified transfer of him to the criminal district court to be there tried for the crime of murder. V.T.C.A., Family Code, Sec. 54.02, “Waiver of Jurisdiction and Discretionary Transfer to Criminal Court.”

From this order an appeal has been perfected and is presently pending for hearing at a later date. Section 56.01, “Right to Appeal.”

Following indictment by the Grand Jury, examining trial by the criminal district court, certification for trial, and all essential preliminaries ensuing after the certification of the juvenile court the case against the minor was set for trial in the criminal district court. At this stage of proceedings the minor, by and through next-friend, came into this court seeking leave to file Petition for Writ of Prohibition to prevent trial in the criminal district court pending our disposition of his appeal of the juvenile court’s order. Leave to file was granted and the Petition for Writ of Prohibition heard.

Prohibition denied.

Appeal having been perfected from the certification by the juvenile court this court is authorized to issue all writs necessary to enforce its jurisdiction; should we issue a Writ of Prohibition in the protection of our appellate jurisdiction there would not be original jurisdiction of the Supreme Court to disturb our order. Ammex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.Sup., 1964).

By our issuance of such writ there would be attendant delay of trial of the minor for the offense of which he is charged by the criminal district court. Test of propriety of the transfer order of the juvenile court upon the appeal presently pending could entail a period of years in a final determination. Possible is that it could be the Supreme Court of the United States which would make the final determination of the propriety of the certification.

Should ultimate decision be that because of some procedural impropriety it was error for the juvenile court to certify transfer of the minor for trial in the criminal district court there would be necessity for the juvenile court to consider anew the propriety of an identical order of transfer. It could very well develop that by the time for such hearing the juvenile court could find itself without jurisdiction because the minor had attained the age of 18 years. See Subsec. (j) of Sec. 54.02 of the Family Code. Except for the exceptions of the Subsection a person who has become an adult may not be controlled by the juvenile court. The requisite jurisdiction over the person might therefore have come to an end so that such court could not certify him anew by Sec. 54.02.

The question is: Is it manifestly necessary that we should presently exercise our jurisdiction to grant a Writ of Prohibition because the action intended in criminal district court will interfere with our appellate jurisdiction?

We have considered the matter of interference with our jurisdiction in light of several possible results which might occur as result of refusal to grant the writ. We have concluded that until such time as threatened action would constitute certain interference with our appellate jurisdiction we should exercise our discretion to refuse to grant a Writ of Prohibition, in that the intended trial in the criminal district court would not amount to certain interference therewith. A Writ of Prohibition will lie only in case of manifest necessity. Herring v. Houston Nat. Exch. Bank, 113 Tex. 337, 255 S.W. 1097 (1923).

Respondents have aptly stated that for us to set a precedent and issue a Writ of Prohibition in this case would invite every juvenile hereafter certified for adult prosecution to routinely appeal, then apply for Writ of Prohibition; that the result would be for the “wheels of justice to slowly grind to a halt” while the issue of validity of certification is litigated through the appellate courts.

Of interest are the cases: Moreno v. State, 511 S.W.2d 273 (Tex.Crim.App., 1974), and Moreno v. State, 510 S.W.2d 116 (Tex.Civ.App., Tyler, 1974, writ ref., n. r. e.). There a minor certified to criminal district court for trial was tried while his appeal from the certification pended in the Tyler Court of Civil Appeals. He was tried by the criminal district court and convicted, and from that conviction he took an appeal to the Court of Criminal Appeals. Both appeals pended simultaneously. Apparently the minor did not seek a Writ of Prohibition of the Tyler Court of Civil Appeals, or if he did, leave to file the same was denied without an opinion. Evidenced by the above cited opinions is that in the present instance the criminal district court certainly had jurisdiction; that the matter with which we are concerned is the exercise of jurisdiction by, and not of presence or absence of jurisdiction in, the criminal district court to which there has been certification by the juvenile court.

Important to be remembered is that one primary and compelling reason for speedy and decisive application of the criminal law is to instill and foster the confidence of the victim of crime, and like confidence of his family and kinsmen, that administration of justice and punishment for crime may be safely left to the courts, and that these persons not yield to the natural human desire for vengeance.

Here we conclude that at the present time the greater possibility of injustice would lie in the granting, rather than in the refusal, of prohibition.

The Petition for Writ of Prohibition is denied.


author: YOUNG, Justice.

text:
    Abel CHAPA, Petitioner, v. William A. WHITTLE, Nueces County Democratic Chairman and the Executive Committee for the Years 1975 through 1976, Respondents.
    No. 1127.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 18, 1976.

      A. J. Pope, Corpus Christi, for petitioner.
    William A. Whittle, pro se.
    Kleberg, Mobley, Lockett & Weil, Ruben Bonilla, Bonilla, Read, Nutto & Bonilla, Inc., Corpus Christi, for respondents.
   OPINION

YOUNG, Justice.

By this original proceeding for mandamus Abel Chapa seeks to compel William A. Whittle, as Nueces County Democratic Chairman, and the Nueces County Executive Committee for the years 1975 through 1976 to remove candidate Arnold Gonzales from the run-off election to be held June 5, 1976, for the office of State Representative, District 48-A, and to advance petitioner’s name to the run-off ballot as a replacement. Gonzales has intervened as corespondent.

In his petition for mandamus, Chapa alleged that Gonzales’ candidacy for the Legislature is in violation of Tex.Const. art. III, § 19 and 5 U.S.C.A. § 1502(a). Specifically, petitioner alleged that at the time Gonzales made application to run for the Texas Legislature, he was acting as the appointed Director of the Social Culture Intervention Program for the Nueces County Mental Health and Mental Retardation Community Center at a salary of $14,148.00 and that such appointed position was a “lucrative office”. In addition, petitioner stated that the office Gonzales was holding was a subdivision of the State of Texas and that it was at the present time receiving grants from both the state and federal governments. Therefore, petitioner asserted, Gonzales is ineligible for the upcoming run-off election because he is in violation of the Texas Constitution and the Hatch Act; as a consequence, Abel Chapa’s name should be put on the ballot as Gonzales’ replacement under Tex.Election Code Ann. art. 8.22.

Our first consideration is the form of the petition presented to us. We note that the petition is unverified. Therefore, the petition violates the longstanding rule in this State that an affidavit verifying all of the facts stated must accompany a petition for mandamus. Shirley & Holland v. Conner, 98 Tex. 63, 81 S.W. 284 (1904); Elliott v. Hamilton, 512 S.W.2d 824 (Tex.Civ.App.—Corpus Christi 1974, no writ). Because of that violation alone it is our duty to refuse the relator’s request for a writ of mandamus. As we explained in Elliott at page 825:

. . The affidavit must constitute such a positive statement of knowledge of the facts in the petition as would constitute a basis for a charge of perjury if such facts were found to be untrue. One of the reasons for this rule is, that the Court of Civil Appeals is not equipped to find facts. It is not generally the appellate court’s function to find facts. We must rely on the truth of the record as it is filed in this Court.”

Nevertheless, we will examine the relator’s petition for mandamus to determine whether it is otherwise sufficient. In doing so we will be guided by the following general rules. The petition must demonstrate a clear right to the relief sought. Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1927). A writ of mandamus will not issue from an appellate court if there be a fact question affecting the rights of the parties. Dick v. Kazen, 156 Tex. 122, 292 S.W.2d 913 (1956). Any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility. Willis v. Potts, 377 S.W.2d 622 (Tex.Sup.1964).

We will next consider petitioner’s contention that Gonzales is ineligible for the Legislature because of his violation of Tex. Const, art. Ill, § 19. That section reads as follows:

“No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.”

It is apparent then that before a candidate for the State Legislature is ineligible, all of the following conditions must exist: 1) that he is holding a lucrative office; 2) that such office has been established or set up under the laws or Constitution of either the United States, State of Texas or foreign government; 3) that such office is either an elected or appointed position; and 4) that the term of office for which he is presently holding runs into or overlaps the term of the Legislature he is seeking.

If we assume that petitioner has sufficiently alleged that the first three conditions above exist concerning Gonzales; i. e., “lucrative office”, “established under” our state or federal laws or constitutions, and “elected or appointed position”, we still have the issue of “term of office” to resolve.

In that regard, the petition contains no specific allegations about the “term of office” of Gonzales. It does, however, state the following:

“Arnold Gonzales was an appointed Director of the Social Culture Intervention Program for the Nueces County Mental Health and Mental Retardation Community Center at the time he made his application to be a candidate for the Texas Legislature.
Arnold Gonzales resigned his position as Director . . . on or about May 5, 1976, . . . ” (Emphasis supplied.)

So, the petitioner argues, Gonzales was serving a prohibited “term of office” in February when he applied to be a candidate and his term continued until at least May 5, when he resigned. Gonzales, therefore, was ineligible when he applied which ineligibility continued until the first primary was concluded. Further, the petitioner says, Texas Election Code Ann. art. 1.05, Subdivision 4 (Supp.1975), prohibits the placing of an ineligible candidate’s name on the ballot of any primary, general or special election. Consequently, Gonzales’ name was improperly on the first primary ballot and thus his name cannot be legally placed on the runoff ballot.

We disagree with those contentions because we determine from our Supreme Court’s holdings in Lee v. Daniels, 377 S.W.2d 618 (Tex.Sup.1964) and Kirk v. Gordon, 376 S.W.2d 560 (Tex.Sup.1964) that “term of office” should have a different application. The “term of office” that disqualifies a candidate is one that overlaps or extends into his term of office, if elected, as a member of the House of Representatives. And the term of office of those members begins from the day of their election in the general election held in November. Tex. Const, art. III, § 4; Lee v. Daniel, supra; Kirk v. Gordon, supra.

It follows then that if the ending date of Gonzales’ “term of office” as a director, regardless of the date of his resignation, falls before the general election in November 1976, he is not now ineligible to be a candidate for the Legislature, nor was he ineligible at the time of his application to be a candidate.

This is not a novel principle; i. e., being apparently ineligible at the time of the first primary and becoming eligible by the time the general election in November occurs. In Luna v. Blanton, 478 S.W.2d 76 (Tex.Sup.1972) our Supreme Court answered certified questions about requirements of residence concerning a candidate for the Texas Senate. The effect of those answers was: even though a candidate had not met the time requirement of residence in the subject district by the date of the first primary, nevertheless, if he will have met that time requirement by the date of the general election in November, he is entitled to have his name placed on the primary ballot.

At this point we mention that the parties in their briefs and oral arguments to us urged conflicting dates about termination of Gonzales’ “term of office” as a director. They also urged conflicting facts about the existence of the other conditions that must exist for Gonzales to be ineligible under Article III, § 19 of our Texas Constitution. If we consider facts in the arguments and briefs at all, we would find that fact questions are there raised. And we cannot here resolve fact questions. Dick v. Kazen, supra.

We hold, therefore, that the petitioner has failed to demonstrate in his petition a clear right to the relief sought under Article III, § 19 of our Texas Constitution, because he has not clearly shown that Gonzales’ “term of office”, if any, extends beyond the date of the general election to be conducted in November 1976. Petitioner’s first contention is overruled.

In his brief and in his oral argument to us the petitioner invoked Tex.Const. art. XVI, § 12, as an additional ground for Gonzales’ ineligibility. This section is as follows:

“No member of Congress, no person holding or exercising any office of profit or trust, under the United States, or either of them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or exercise any office of profit or trust under this State.”

This provision obviously prohibits dual office holding. Because the petitioner has alleged that Gonzales resigned the questioned office on May 5,1976, Gonzales could not be holding office as director at the same time he would be holding office, if elected, as a member of the Legislature. Petitioner’s contention based on Article XVI, § 12, supra, is overruled.

About 5 U.S.C.A. § 1502(a), commonly called the “Hatch Act”, in oral argument the petitioner asserted that he is not invoking the “Hatch Act” as a ground for ineligibility of Gonzales as a candidate. We, therefore, overrule his “Hatch Act” contention.

The petition for mandamus is denied.

Because of the emergency arising from the imminent approach of the time for printing the ballots for the June primary, the parties hereto will be denied the right to file a motion for rehearing.

NYE, C. J., not participating.


author: PEDEN, Justice.

text:
    In the Matter of J. L. D., a juvenile, Appellant.
    No. 16686.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 22, 1976.
    Michael B. Smithers, Lake Jackson, for appellant.
    Ogden L. Bass, Crim. Dist. Atty., A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, for appellee.
   PEDEN, Justice.

Appeal from an order modifying disposition in a juvenile proceeding.

On September 12, 1975, an adjudication hearing had been held and J. L. D. found to have engaged in delinquent conduct in being absent from home for substantial lengths of time without parental consent on six occasions between April 22 and July 3, 1975, and in stealing a bicycle. On October 8, 1975, the court had entered a disposition order committing him to the custody of the Texas Youth Council, but the order of commitment was suspended and he was placed on probation in the custody of his parents. One of the conditions of the probation was:

“(10) To attend the school in which he is enrolled unless written permit from parent is available; two unexcused absences from this date and/or misconduct that brings about suspension or expulsion will be sufficient for revocation procedure;

On November 20,1975, a hearing to modify disposition was held pursuant to § 54.05 of the Family Code, Vernon’s Texas Civil Statutes. The court found that J. D. had violated condition 10 of his probation, modified the disposition order of October 8,1975, ordered him committed to the custody of the Texas Youth Council, and recited this specific finding:

“That on the 28th day of October, 1975, the said child was suspended from Alvin Junior High School, the school in which he was then enrolled, for misconduct namely; on or about the 15th day of October, 1975, disrupting the classroom, on or about the 22nd day of October, 1975, fighting in class, on or about the 28th day of October, 1975, being disrespectful to and threatening a teacher.”

The appellant’s only point of error is that the modification order should be reversed because he was suspended from school without a hearing pursuant to the due process requirements of the Fourteenth Amendment of the United States Constitution.

We affirm. The appellant has not shown that he was suspended from school without due process.

We review the evidence adduced at the November 20 court hearing. The appellant was represented by counsel and does not assert that he was denied any rights to due process at that hearing. The incidents of October 15, October 22, and October 28 were related by the teachers who were involved, by an assistant principal, Mr. Whit-lock, and by J. L. D. and his mother. Each of them was cross-examined. It appears that J. L. D. was suspended for one day on October 15 and again on October 22.

A teacher, Mary Marek, testified that on October 15, 1975, J. L. D. had been picking on a boy named Donnie and admitted threatening to beat him up if Donnie got him in trouble. She said J. L. D. was disrupting the class, and she took him to Mr. Whitlock, the assistant principal.

Another teacher, Kent Ballard, related that on October 22, 1975, while J. L. D. was playing dodge ball with some other boys in a physical education class, one of them called him a clown and J. L. D. hit him. Ballard sent him to the office, but he doesn’t know whether any disciplinary action was taken.

Gary D. Nunn is also a teacher at Alvin Junior High School. He did not know J. L. D. on October 28, 1975, when he saw him walk into a cart carrying a film projector that another teacher was pushing. She told him not to run into her cart on purpose, and he said “I didn’t run into your cart on purpose” in a very loud voice. Nunn walked over and grabbed the shirt of J. L. D. and, because he had raised his voice so much, told him not to talk to a teacher like that. J. L. D. jerked away and made “a very smart remark.” Nunn said “Let’s go to the office and let them talk about it.” J. L. D. walked very slowly, so Nunn told him to walk faster. J. L. D. said he would walk as fast as he wanted to. Nunn gave him a little push and J. L. D. turned around and clenched his fists. When they got to the office, Nunn asked someone to find Mr. Martin, the principal. J. L. D. was smirking and “smarting off,” and Nunn said “Don’t say anything else.” J. L. D. replied that he was going to hit him in the mouth. Mr. Martin came out and said he would call J. L. D.’s mother.

Mr. Cliff Whitlock, an assistant principal, testified that J. L. D. had a poor attitude in October, 1975. At that time he was being detained after school, still making up time for truancies during the previous school year. J. L. D. was suspended on October 28 for threatening teachers. He knows of three temporary suspensions. One was over an incident in physical education class, and he was allowed to return as soon as his mother could come in for a conference. They have tried several times to counsel with him, but his attitude is that they are not going to do anything to him. On Monday, November 17, J. L. D. called and asked when he could come back to school; he talked to Mr. Martin. Whitlock was told by Mr. Martin that he felt it best that J. L. D. remain out of school until the court decided what to do with J. L. D.

The appellant’s mother testified that on November 17, when J. L. D. called Mr. Martin, he told her he would readmit J. L. D. to school after she had had a conference with his teachers, the assistant principals and himself. J. L. D. testified that on October 28 he didn’t see the cart coming before it hit him on the foot. He said the teacher pinched his arm and he told her in a “louder than usual” voice that he didn’t do it on purpose. Mr. Nunn shoved him even though he was walking at his normal speed. He is sure he didn’t threaten to hit Mr. Nunn in the mouth. J. L. D. testified that Martin came in a little later, talked to him, and suspended him from school on that day because of that incident.

He admitted having told Donnie he was going to beat him up and having also gotten in trouble in September. He said he hit the boy in P. E. class for calling him a clown.

At the conclusion of the evidence the trial judge stated that he found that J. L. D. “had violated the terms and conditions of his probation in that he had engaged in conduct which resulted in the suspension or expulsion from school, which suspension or expulsion was justified.”

The United States Supreme Court recently discussed in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, at pages 739-741, 42 L.Ed.2d 725 (1975) some notice and hearing requirements imposed by the Due Process Clause in cases of short (not more than ten days) suspensions from public schools:

“We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.
“There need be no delay between the time ‘notice’ is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. Lower courts which have addressed the question of the nature of the procedures required in short suspension cases have reached the same conclusion. Tate v. Board of Education, supra, 453 F.2d [975] at 979; Vail v. Board of Education, supra, 354 F.Supp. [592] at 603. Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated.
“We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.”

Having examined all the evidence in this case, we cannot say that J. L. D. denied the charge against him when Mr. Martin talked to him on October 28, that he was not given a hearing by Mr. Martin or offered a hearing as soon as practicable, that he was not given an opportunity to explain his version of the facts, that he was not told what he was accused of doing, or that he was not given an opportunity to confront and cross-examine witnesses supporting the charge or to call his own witnesses. We note that he was still out of school when in court 23 days after the suspension and that a few days earlier Mr. Martin had expressed the view that J. L. D. should not be readmitted until the court had decided his case, but we have also seen that when J. L. D. and his mother called the principal he said he would readmit J. L. D. after a conference. This testimony does not establish that J. L. D. could not have been readmitted earlier if he and his mother had sought it, nor does it prove that he was expelled indefinitely or that the term of his expulsion was fixed at more than ten days.

Affirmed.


author: SHANNON, Justice.

text:
    Fay WALL et al., Appellants, v. LOWER COLORADO RIVER AUTHORITY, Appellee.
    No. 12333.
    Court of Civil Appeals of Texas, Austin.
    April 28, 1976.

      Coleman Gay, Gay & Latting, Austin, for appellants.
    John D. Pieratt, Austin, for appellee.
   SHANNON, Justice.

Appellants, Fay Wall, LaVerne English, and their mother, Bessie K. English, filed a declaratory judgment suit against appellee, the Lower Colorado River Authority, to determine their rights in a tract of land out of the James 0. Clark Survey. The land in question is located between the 715-foot contour line and Lake Travis.

The 715-foot contour line is a line 715 feet above mean sea level as established by the United States Geological Survey Bench Marks. At the time the 715-foot line was established, appellee was in the process of constructing a dam across the Colorado River west of Austin and downstream from the land in controversy. The dam when completed, had a spillway elevation not exceeding 715 feet, and the land below the contour line was subject to submerging and overflow by flood water. The waters backed up from that dam form what is now known as Lake Travis.

Appellants pleaded that in April, 1940, A. J. English and his wife, Bessie K. English owned 98 acres out of the John Moat Survey located in Travis County. At that time the Lower Colorado River Authority owned an adjoining 195 acres out of the James 0. Clark Survey No. 1.

Appellants averred further that in April, 1940, the Englishes agreed that they would grant to the Lower Colorado River Authority “a perpetual easement and right to overflow 32.79 acres” of the 98 acres of land owned by them in the Moat Survey. The 32.79 acres of land were located below the 715-foot contour line. In consideration for that grant, the Lower Colorado River Authority agreed to convey to the Englishes in fee, the portion of the 195 acres owned by it in the Clark Survey above the 715-foot contour line, and an easement in that part of the land located below the contour line.

Pursuant to that agreement, the Englishes executed their deed conveying to the Lower Colorado River Authority “a perpetual easement and right to inundate, submerge and overflow all of [their] certain tracts or parcels of land situated in John Moat Survey . . . which will at any time be inundated, submerged or overflowed, or in any manner affected by virtue of the construction, erection and maintenance of a dam in the Colorado River . ” being a 32.79-acre portion of the said 98 acres located below the 715-contour line.

In consideration for that deed, the Lower Colorado River Authority conveyed to A. J. and Bessie K. English, all of that portion of the 195-acre tract out of the Clark Survey located above the 715-foot contour line, 83.-96 acres, and an easement in, over and across that portion of that tract located below the 715-foot contour line. The easement was described as follows:

“. . . the grantees [the Englishes] are given the right of ingress and egress across the land retained by grantor [the Lower Colorado River Authority] in said Clark Survey to the waters’ edge, and that grantor will not erect a fence separating its land in said Clark Survey from the land herein conveyed, and that grantees herein are given the right to maintain and control all outside fences in the said Clark Survey to the waters’ edge, and that the use of such surface by grantees shall not be considered adverse to the rights of grantor, or start or support the operation of any of the statutes of limitation of this State; and grantees assume all risks and waive any and all damages in the use of the surface of said land.”

In the same conveyance it was recited that “. . . it is distinctly understood and agreed that the land which lies below said 715 foot contour line and between said line and the Colorado River and which is described in the above mentioned deed is not conveyed hereby, but that the full fee simple title to such property which lies below said 715 foot contour line is retained by the Lower Colorado River Authority . . ”

Appellants pleaded that A. J. English and the appellants made such use of the land below the 715-foot contour line as they desired to make, including grazing of livestock thereon, using the property for going to and from Lake Travis, placing trailer houses and minor structures thereon, and, in general, using the property for “general lakefront purposes.”

Appellants prayed that the district court declare that they had the right to use the land below the 715-foot contour line as “lakefront” property to the extent that it might be reasonably necessary or appropriate to the use and enjoyment of said land as lakefront property, including the right to build and maintain such buildings, structures, and facilities as were useful and appropriate for lakefront property, subject to all rights in and to the land granted to and retained by the Lower Colorado River Authority.

After trial to the court, judgment was entered that the appellants take nothing. Upon request the district court filed findings of fact and conclusions of law. The court found that since the execution of the deeds in 1940, appellants had made various uses of that portion of the lands in the Clark Survey located below the 715-foot contour line. Appellants had farmed portions of that land when the lake was down, had run cattle on the land, and had rented boats and boat stalls to the public since 1956 or 1957. The court found further that appellants had verbally leased parts of the land to others for the maintenance of trailer houses and similar living quarters.

The court concluded, in effect, that the only use afforded by the deed from the Lower Colorado River Authority to the Englishes of the land in the Clark Survey located below the 715 contour land was to allow the Englishes’ livestock to have access to the water’s edge of Lake Travis. The court concluded further that any other use would be inconsistent with the intention of the parties “as interpreted from the four corners of the aforementioned Deed.”

The scope of an express easement is determined by the same rules which are applicable to deeds and other written instruments. Armstrong v. Skelly Oil Co., 81 S.W.2d 735 (Tex.Civ.App.1935, writ ref’d). Parol evidence is admissible to explain ambiguities apparent on the face of the writing. 2 McCormick and Ray, Texas Law of Evidence § 1685 (1956). If there is no ambiguity, the construction of the writing is a question of law for the court. Myers v. Gulf Coast Minerals Management Corporation, 361 S.W.2d 193 (Tex.1962). Generally, in the case of an unambiguous writing, the courts will give effect to the intention of the parties as expressed by or as is apparent from the writing. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is the objective, not the subjective, intent which controls. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968). No interest in real property passes by implication as incidental to the grant of the easement except that which is reasonably necessary to the fair enjoyment of the easement. Coleman v. Forister, 514 S.W.2d 899 (Tex.1974).

We do not understand the terms of the easement granted to Englishes to be ambiguous.

The extent of the easement granted to the Englishes to that part of the land in the Clark Survey below the 715-foot contour line is governed by the terms of the deed executed by the Lower Colorado River Authority. A reading of that deed shows that the Lower Colorado River Authority retained the fee simple title to that land in the Clark Survey below the 715 line. By the terms of the deed the only right conferred upon the Englishes was the right of ingress and egress across the land to the edge of the water.

Appellants insist that by the authority of Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959), they may use and enjoy the land in controversy, including the right to build, construct and maintain on the land such buildings, structures, and facilities as are useful and appropriate for lakefront property. In Friedsam, the grantor, Linda Lou Friedsam, conveyed 386 acres out of a larger tract to Ulbricht, Heckman, and Prade. One side of the 386-acre tract was bounded by the 1020-foot contour line along the shores of Lake Buchanan. Ulbricht contended, inter alia, that he and the others had the right to use the land below the 1020-foot contour line for certain purposes. The deed from Linda Lou Friedsam to Ul-bricht “. . . contained no exceptions or reservations of any easements or rights of any kind or character . .”

As we understand Friedsam, the Supreme Court recognized an easement by necessity in Ulbricht for the use and enjoyment of the land below the 1020-foot contour line.

In the case at bar, we are concerned with the construction of an express easement. There is no implied easement as incidental to the grant of the express easement except that which is reasonably necessary to the fair enjoyment of the express easement. Coleman v. Forister, supra. The only right conferred upon the Englishes by the deed was the right of ingress and egress across the land to the water’s edge. There was no implied easement, incidental to the grant of the express easement, to build, construct, and maintain on the land in controversy such buildings, structures, and facilities as are useful and appropriate for lakefront property.

Appellants point to their continued use of the subject land for more than fifteen years. They argue that their use of the land and the acquiescence of the Lower Colorado River Authority in that use indicates the interpretation placed upon the easement by the parties themselves. That interpretation, appellants say, should be given weight. We would agree with appellants if we were of the opinion that the express easement was ambiguous. As we are of the opinion that the meaning of the easement is plain and unambiguous, the use of appellants and the acquiescence of appel-lee are not to be considered. Highland Farms Corporation v. Fidelity Trust Co., 125 Tex. 474, 82 S.W.2d 627 (1935).

The judgment is affirmed.

Affirmed.


author: DONNELLY, Judge. BARDGETT, Judge

text:
    STATE ex rel. Gary E. STEVENSON, Plaintiff-Relator, v. James C. KIRKPATRICK, Secretary of State, and Vollie Hulsey, St. Francois County Clerk, Respondents, Joan Cox, Platte County Clerk, et al., Intervenors-Respondents.
    No. 59529.
    Supreme Court of Missouri, En Banc.
    May 21, 1976.
    Rehearing Denied May 28, 1976.
    David L. Mayhugh, Gary E. Stevenson, Farmington, for relator.
    Hugh C. Roberts, Jr., Farmington, John C. Danforth, Atty. Gen., B. J. Jones, C. B. Burns, Jr., Asst. Attys. Gen., for respondents.
    Gary W. Fleming, Sedalia, Owens Lee Hull, Jr., Platte City, for intervenors-re-spondents.
   DONNELLY, Judge.

This is mandamus.

This cause arose as a result of an assertion by Relator of the right to be a candidate for election in 1976 to the office of Prosecuting Attorney of St. Francois County. At the general election in 1974, Hugh C. Roberts, Jr. was elected Prosecuting Attorney of St. Francois County, Gary W. Fleming was elected Prosecuting Attorney of Pettis County, and Owens Lee Hull was elected Prosecuting Attorney of Platte County. The county clerks of the three counties are parties to this cause.

When Roberts, Fleming and Hull were elected, St. Francois County, Pettis County and Platte County were third class counties. They became counties of the second class January 1, 1975.

The questions presented are: (1) whether Roberts, Fleming and Hull were elected for terms of two years or terms of four years; and (2), if the answer to (1) is that they were elected for terms of two years, whether elections should be held in 1976 for the office of prosecuting attorney in St. Francois County, Pettis County, and Platte County.

The controlling statute is § 56.010, RSMo Supp. 1973. It reads as follows:

“At the general election to be held in this state in the year A.D. 1880, and every two years thereafter, there shall be elected in each county of this state a prosecuting attorney, who shall be a person learned in the law, duly licensed to practice as an attorney at law in this state, and enrolled as such, at least twenty-one years of age, and who has been a bona fide resident of the county in which he seeks election for twelve months next preceding the date of the general election at which he is a candidate for such office and shall hold his office for two years, and until his successor is elected, commissioned and qualified; except that at the general election in 1974, and every four years thereafter, in counties of the first class not having a charter form of government, and in counties of the second class, the prosecuting attorney shall be elected for a term of four years.”

We find no ambiguity in the statute and will not create one where none exists. We construe § 56.010, supra, to mean:

(1) that in all counties not excepted in § 56.010, supra, a prosecuting attorney shall hold office for two years;

(2) that prosecuting attorneys, elected in counties which were of the second class at the time of the general election in 1974, were elected to terms of four years;

(3) that prosecuting attorneys, elected in counties which were of the third class at the time of the general election in 1974, were elected to terms of two years;

(4) that prosecuting attorneys, elected in counties which were of the third class at the time of the general election in 1974 and which became counties of the second class after the general election in 1974, were elected to terms of two years;

(5) that prosecuting attorneys, elected in counties which are of the second class at the time of the general election in 1978, and every four years thereafter, will be elected to terms of four years.

Respondent Secretary of State asserts that the above construction of § 56.010 is contrary to Section 8 of Article VI of the Missouri Constitution which provides that “[a] law applicable to any county shall apply to all counties in the class to which such county belongs.” We do not agree. At the time of the general election in 1974, the date made determinative by § 56.010, supra, the counties involved here were third class counties.

Respondents Hulsey, Wilson and Cox cite the case of State ex rel. Attorney General v. McGovney, 92 Mo. 428, 3 S.W. 867 (1887). In McGovney, this Court held that a statute gave a county treasurer the right to hold over until April 1 of the year after the election of his successor, and held such statute constitutional. The McGovney case is not controlling here. There, the Court followed the “express provision * * * of the statute * * *.” We do the same. “We have no right to read into * * * [§ 56.010] an intent which is contrary to the legislative intent made evident by the phraseology employed.” City of St. Louis v. Crowe, 376 S.W.2d 185, 190 (Mo.1964).

We hold: (1) that Roberts, Fleming and Hull were elected at the general election in 1974 to terms of two years; (2) that elections for the office of prosecuting attorney should be held in 1976 in St. Francois County, in Pettis County, and in Platte County; (3) that each person elected in 1976 shall hold his office for two years, and until his successor is elected, commissioned and qualified; and (4) that at the general election in 1978, in St. Francois County, Pettis County, and Platte County (if at that time they are counties of the second class), and every four years thereafter (if at that time they are counties of the second class), the prosecuting attorney shall be elected for a term of four years.

Accordingly, the alternative writ is made permanent; the Secretary of State is directed to transmit on or before June 1, 1976, to the county clerks of St. Francois County, Pettis County, and Platte County, a notice, in writing, designating the office of prosecuting attorney as an office for which candidates are to be nominated at the primary election (§ 120.320, RSMo 1969); and the county clerk of each such county is directed to thereafter comply with § 120.-330, RSMo 1969. Candidates may file declarations of candidacy (Cf. § 120.340, RSMo 1969, amended Laws 1974, p. 759) not later than June 25, 1976. No candidate’s name shall be printed upon any official ballot at the primary election unless the candidate has by 5:00 p. m. on June 25, 1976, filed a written declaration of candidacy.

It is so ordered.

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

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

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

The parties are notified that any motions for rehearing and suggestions in support must be filed in this court and served on opposing parties not later than May 27, 1976.

BARDGETT, Judge

(dissenting).

I respectfully dissent. In my opinion there is no statutory authority for a county of the second class to elect a prosecuting attorney for a two-year term nor is there any authority found in section 56.010 that authorizes a county of the second class to elect a prosecuting attorney in any years other than 1974 and at four-year intervals thereafter.

The counties involved in this case were third-class counties at the time of the 1974 general election. Pursuant to 56.010, a prosecuting attorney was elected in each of these counties to “hold . . . office for two years, and until his successor is elected, commissioned and qualified; . . . .” In State ex rel. Hulen v. Brown, 274 S.W. 965 (Mo.App.1925), the court held at 967: “The law is well settled that, where a public officer is elected or appointed to hold office for a definite period, and until his successor is appointed or elected and qualified, failure to appoint or elect a successor at the end of such period does not work a vacancy. State ex rel. Lusk, 18 Mo. 333; State ex rel. Stevenson v. Smith, 87 Mo. 158. It follows that the incumbent properly holds until his successor is elected or appointed and qualified, and it is then only that his term expires. State ex rel. Robinson v. Thompson, 38 Mo. 192; State ex rel. v. Ranson, 73 Mo. 78.”

It is, therefore, my opinion that the prosecuting attorneys that were elected in 1974 in the counties involved in this ease were elected for a term of two years but that such prosecutors would continue in that office until their successors were elected or the incumbent prosecutor died, resigned, or was ousted, for it would only be in those circumstances that a vacancy would exist. In my opinion, the next election authorized by statute for prosecuting attorneys in the counties involved in this case are the primary and general elections of 1978.

I would quash the writ of mandamus in this case and, therefore, I dissent.


author: McMILLIAN, Judge.

text:
    Eva S. TELLIS, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.
    No. 36749.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 17, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      Keefe, Schlafly, Griesedieck & Ferrell, William H. Ferrell, Martin J. Toft, St. Louis, for defendant-appellant.
    Klamen, Summers & Compton, Robert Summers, Daniel S. Hapke, Jr., Maureen Swihart, Clayton, for plaintiff-respondent.
   McMILLIAN, Judge.

A jury awarded plaintiff, Eva S. Tellis, $50,000 damages against defendant, Union Electric Company (Union Electric), a corporation, for the wrongful death of her husband, Joseph Tellis, who was electrocuted when the boom on a truck being operated by him came into contact with an overhead uninsulated electric wire. Union Electric appeals from the court’s entry of judgment on the verdict.

Union Electric contends that the trial court erred in that (1) plaintiff failed to make a submissible case because the evidence failed to establish foreseeability, (2) the evidence showed the decedent to be contributorily negligent as a matter of law; and (3) the plaintiff’s verdict director was erroneous. Since we hold that plaintiff’s decedent was contributorily negligent as a matter of law, we reverse and remand with instructions to the trial court to enter judgment for defendant without any discussion of point number three.

In considering the question of negligence and contributory negligence, we view the evidence from the standpoint favorable to plaintiff, give plaintiff the benefit of all reasonable inferences therefrom, give plaintiff the benefit of any of defendant’s evidence favorable to plaintiff and not contrary to the fundamental theory of her case, and disregard defendant’s evidence unfavorable to plaintiff. Donovan v. Union Elec. Co., 454 S.W.2d 623[1] (Mo.App.1970).

From the evidence the jury could have reasonably found the plaintiff’s decedent, Joseph Tellis, age 52, drove and operated a boom type truck for an independent contractor, who sold and supplied concrete and brick products. On the morning of July 17, 1972, decedent delivered three to five pallets of blocks to the residence of Richard Chapman, who lived on Park Court in Maryland Heights, Missouri. The blocks were to be used for the construction of a swimming pool.

Since Park Court was a circular street and there was no driveway or roadway to the back of the Chapman home, access to the rear could only be made by driving through a ball field or park which was to the north of Chapman’s rear fence. Marvin Wyatt, an employee of Chapman, gave decedent directions on how to get to the rear of the Chapman home.

The swimming pool excavation was between the fence and the back of the Chapman home. At the northern edge of the swimming hole excavation were two electric lines; one, an uninsulated primary line, twenty-five feet above ground, carrying 7200 volts, the other, a parallel secondary line, eighteen feet above ground, carrying 240 volts. The span between the two poles by which the wires were suspended was one hundred eighty feet. Both lines exceeded the height standards for overhead electric distribution lines established by the National Electric Safety Code.

The mast, to which the boom was attached, extended from the bed of the truck to a point twelve feet, four inches above the ground. The boom was eighteen feet long.

The maximum height of the boom above ground level was twenty-seven feet, six inches. On the top preliminary line was a burn mark at a point eighteen feet, ten inches above the ground — three feet, ten inches above the code minimum standards. A twelve inch burn mark was on the top right hand side of the tip of the boom.

From the exhibits offered by both parties, in plain view was a large transformer on the pole suspended by the two wires located at the northeast corner of the Chapman’s fence line. Tellis’ boom came into contact with the primary line at a point sixty-seven feet, six inches west of the transformer.

On the morning in question, the decedent first attempted to deliver a pallet of blocks into the excavation by inserting the boom between the rear fence and the parallel secondary wire. Because Tellis was unable to successfully complete this maneuver, Chapman removed the rear fence. After the removal of the fence, the decedent, with the boom almost in a horizontal position successfully placed the pallet of blocks into the excavation. The next load, however, was to be placed on top of the first. In attempting to place the second pallet of blocks the decedent placed the boom between the primary (top) line and the secondary (lower) line. During this maneuver, the boom came into contact with the top line, which resulted in Tellis’ death. Neither Chapman nor Wyatt saw what caused the contact.

Chapman testified that not only did decedent, prior to making a delivery of the blocks, look at the wires but also that he told decedent about the wires and warned him to stay away from them and to be “awfully careful of them.”

Both Chapman and Wyatt testified that four to six times, during the first and second deliveries of pallets of blocks, the boom swayed three to four feet. Each time Tellis corrected the swaying, but every two to three minutes the swaying would recur. Neither, however, was able to testify as to what happened on the third and fatal delivery. Both agreed that when the injury occurred the boom was in contact with the higher primary wire.

Our first concern is whether plaintiff made a submissible case of primary negligence against Union Electric.

In Donovan v. Union Elec., 454 S.W.2d 623, 626 (Mo.App.1970), citing with approval Foote v. Scott-New Madrid-Mississippi Elec. Co-op., 359 S.W.2d 40, 43 (Mo.App.1962), we held that an electric company is not an insurer of the safety of persons and its liability is determinable upon principles of negligence. In this regard, Union Electric is obligated to exercise the highest degree of care either to insulate its transmission lines adequately or to isolate them effectively wherever it reasonably may be anticipated that others may lawfully come into close proximity to its lines and thereby may be subjected to a reasonable likelihood of injury. Erbes v. Union Elec. Co., 353 S.W.2d 659 (Mo.1962). In short, the law requires Union Electric to use the highest degree of care to prevent injury which it could reasonably anticipate.

While anticipation, or foreseeability, of harm because of acts or omissions of Union Electric is an essential element in determining liability, Gladden v. Missouri Public Service Co., 277 S.W.2d 510 (Mo.1965), it is unnecessary that Union Electric anticipate either the exact injury or the exact manner in which the injury occur. Lebow v. Missouri Public Svc. Co., 270 S.W.2d 713 (Mo.1954).

In Foote, we held that test to establish the element of foreseeability by a defendant is whether the jury could have fairly found that, in the exercise of the highest degree of care, a defendant could have reasonably anticipated that some injury was likely to have occurred to one lawfully near its transmission line. In Hamilton v. Laclede Elec. Co-op., 294 S.W.2d 11, 14 (Mo. 1965), the court held, however, that even where the highest degree of care is demanded of an electric utility company, it is only bound to guard against those occurrences which can be reasonably anticipated by the utmost foresight.

From our review of the evidence, we hold that plaintiff’s evidence did establish a case of primary negligence against Union Electric. The evidence that influenced our conclusion is that the area where decedent met his untimely death was a populous residential area; that the electrical wire which caused the decedent’s death was uninsulated and carried 7200 volts of electricity; that Union Electric knew that the Chapman residence was in a residential and populous area; that Union Electric knew that boom trucks, prior to 17 July 1972, were used in residential areas for building and remodeling purposes; that Union Electric knew of three similar accidents in the Maryland Heights area; and that Union Electric’s reliance upon Majors v. Ozark Power & Water Co., 205 Mo.App. 337, 222 S.W. 501 (1920) and the Foote and Donovan cases is misplaced.

In Majors, which was not a boom contact case, plaintiff’s husband who was standing near the stump of the tree when it fell, walked voluntarily toward the top of the tree lying in the street and somehow came into contact with the live wires that had been broken as the tree fell. One of the bases for the court’s decision, sustaining the directed verdict for the utility company, was that it was not reasonably foreseeable that a healthy shade tree located in a yard forty feet from the street where the utility’s wires were suspended, twenty to thirty feet above the ground, would be chopped down so as to fall directly against the utility’s lines and break them. Hence, the Majors case is of no help.

The Foote case, likewise, is not helpful. First, it is not a boom contact case. Secondly, it involved a sixteen year old boy who capriciously tossed a copper wire attached to a tin can, twenty-five feet in the air, over a 7200 volt uninsulated line. The court held, and justly so, that a submissible case on foreseeability was not made because the utility could not have anticipated that an uninsulated wire, twenty-five feet above ground, in a rural area would cause injury to a child who playfully threw a copper wire onto an overhead wire. In our case, the unfortunate tragedy occurred in a populous residential area, and the plaintiff’s decedent was engaged in his employment, whereas in Foote the child in question was not performing any necessary task.

While Donovan is a boom contact case, the casualty there occurred in a farm land area. The voltage wiies were twenty-five feet from the ground, and there was no evidence of any residences or other buildings around other than the barn, shed, and office, which had formerly been a farm house. Here not only was the Chapman home in a populous residential area, but also, unlike the Donovan case, Union Electric knew boom type trucks were used in the area, and it had knowledge of similar type accidents. To this extent Donovan is distinguishable.

Consequently, we hold that under the circumstances shown herein, Union Electric could have reasonably anticipated that decedent, who was lawfully upon the premises in a populous residential area was likely to be injured as a result of contact with Union Electric’s uninsulated wires.

Next, we consider Union Electric’s contention that decedent’s conduct amounted to contributory negligence as a matter of law.

Under our law in electricity cases, contributory negligence is a question of fact or a mixed question of law and fact for the jury to decide, unless there is a finding that the injured person had actual or constructive knowledge of the danger and a finding of some voluntary act by the injured person which placed him in contact with the wire. Arkansas-Missouri Power Co. v. Carl, 280 F.2d 7 (8th Cir. 1960); Losh v. Ozark Border Elec. Co-op., 330 S.W.2d 847 (Mo.1960).

In Hamilton v. Laclede Elec. Co-op., supra, l. c. 17, the court quoted with approval the following pronouncements:

“Persons of ordinary intelligence are presumed to know the dangers attending contact with wires electrically charged.
“ ‘When the negligent act of the plaintiff is necessary to make a dangerous situation negligently created by the defendant effective in harm, the plaintiff’s negligence is always a contributory factor in producing his harm and as such prevents him from recovery against the negligent defendant.’ ”

The law imposes upon a person, sui juris, the obligation to use ordinary care for his own protection, the degree of which is commensurate with the danger to be avoided; and one who voluntarily and unnecessarily assumes a position of danger, the hazard of which he understands and appreciates, cannot recover for an injury from a risk incident to the position.

In our case, while it is true that no one specifically told decedent that the two overhead wires were electric wires, on at least two occasions he looked at the wires and was aware of their presence. That he was aware can also be demonstrated by the fact that on the first attempted delivery of the pallet of blocks, he was unable to make the delivery below the secondary wire because of the fence. On the second attempt with the fence removed by putting the boom in a horizontal position below the secondary wire, he completed his mission. Moreover, at the time he was electrocuted the boom had been placed between the two wires. Not only did the evidence show that decedent was aware of the presence of the wires but also that he was warned by Chapman who told him to stay away from the wires and to be “awfully careful of them.” Also, in plain view, sixty-seven feet away from the point of contact of the boom with the transmission wire was a large metallic transformer approximately on the same level as the secondary wire. From the above evidence, we find that decedent, an experienced boom operator, had actual knowledge of the overhead wires, and, being a person of ordinary intelligence, he was presumed to know the dangers attending contact with electrical wires.

In reaching our conclusion we note that decedent chose to attempt delivery of the pallet of blocks high in the air by going through energized electric wires. The plaintiff’s own evidence shows that there was a reasonable alternative course as was demonstrated by the manner in which the blocks were delivered after the injury. More important, however, is that Chapman and decedent discussed the alternative method prior to the attempted delivery and recognized the attendant danger. Decedent selected his own means of accomplishing his task, and chose to continue to use the boom even though immediately prior to his injury he knew the boom was swaying three to four feet every three or four minutes. Therefore, voluntarily inserting a potentially defective metal boom between the known danger of two energized wires constituted contributory negligence as a matter of law. See Hamilton v. Laclede Elec. Co-op., supra, and Coleman v. North Kansas City Elec. Co., 298 S.W.2d 362 (Mo.1957).

Plaintiff argues vigorously that no case ever held a person to be contributorily negligent as a matter of law where there was no eyewitness to the casualty, citing for this proposition, Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233 (1931) and Privette v. City of West Plains, 93 S.W.2d 251 (Mo.App.1936).

In the Pulsifer case, two boys, Pulsifer .and Fitzsimmons, who had been scattering wheat shock in a field, were found lying unconscious on the ground in contact with an electric wire. Fitzsimmons was dead, and Pulsifer, who never regained consciousness died later. There was no eyewitness as to how or why they came into contact with the wire. The court held that a reasonable inference to be drawn from the condition in which Pulsifer was found was that Fitzsimmons may have first come into contact with the wire and Pulsifer, with a gloved hand, attempted to come to his did.

The Privette case involved a telephone lineman who, while searching for trouble on the line, came upon an uninsulated electric wire at a point where the telephone line he was inspecting crossed the electric wire. Thereafter he lowered his cable car, discussed the problem with his helper, and concluded to use another method to inspect the line rather than attempt to ride past the uninsulated wires in the cable car. Pri-vette obtained a ladder from his company and returned and placed the ladder against his cable car and the messenger strand away from the electric wire. He climbed the ladder and fastened the cable car to the strand still away from the electric wires and above them. As Privette grasped the messenger wires and attempted to swing himself into the cable car and away from the electric wires, the ladder shook and he screamed. When his helper looked up Pri-vette’s knees were crouched and he was leaning back in a falling position with the messenger wire in one hand and one of the electric wires in the other. He hung for a moment, turned loose the messenger wire, swung on the electric wire in a falling position, and then fell to the ground.

Both the Pulsifer and the Privette cases are factually distinguishable from the instant case. Both stated that, on the question of contributory negligence, the rule is that a party is presumed to have exercised due care for his own safety and that the burden rested upon defendant to prove the party guilty of contributory negligence. And, under the peculiar circumstances of each case, contributory negligence was held to be a jury question. Here, we find that Union Electric met its burden of proof of decedent’s contributory negligence. Neither of those two cases involved a situation where a party would not have been injured but for his own reckless disregard of his personal safety by voluntarily and unnecessarily placing himself in a dangerous situation, fully knowing and realizing the danger of such situation and the hazard to which he- was exposing himself. Morris v. Kansas City Light & Power Co., 302 Mo. 475, 258 S.W. 431, 433[5] (1924).

Judgment is reversed with directions to the trial court to set aside its judgment and enter judgment for the defendant.

WEIER, P. J. and SMITH, J., concur.

      . 29 C.J.S. Electricity § 66 3.

      . 2 Restatement, Torts 1251, 1252, § 478.

      . See 38 Am.Jur., Negligence, § 32.

      .Blocks were handloaded from truck, placed outside the pool, and hand carried into the excavation.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. La Vaughn FARMER, Defendant-Appellant.
    No. 35909.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 24, 1976.
    Motion for Rehearing or Transfer Denied April 13, 1976.
    Application to Transfer Denied June 14, 1976.

      William J. Shaw, Public Defender, Joseph R. Aubuchon, Richard H. Sindel, Asst. Pub-lie Defenders, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Lucia K. Leggette, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Frank J. Kaveney, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

Appellant was convicted of robbery in the first degree and sentenced under the Second Offender Act, § 556.280, RSMo 1969, to 25 years in the custody of the Department of Corrections. His request for reversal is based upon contentions that an instruction for robbery by fear was not supported by the evidence, and that defendant was prejudiced by remarks and conduct of the trial judge and by improper closing argument of the prosecutor. We affirm the conviction.

On May 14, 1973, a group of fifteen to twenty black men armed with hammers and rocks entered Wehmueller’s Jewelers at Northland Shopping Center, smashed display cases, and removed items of jewelry. Miss Mary Louise Kalt, a clerk on duty, immediately fled to a room in the rear of the store and remained there until the commotion ended. Officer Joseph Mokwa, a St. Louis Police Department detective, who was a customer in the store at the time of the incident, drew his revolver and ordered the men to halt. Appellant was one of three men apprehended in the store at that time by Officer Mokwa.

Appellant contends that there was insufficient evidence of fear for a jury instruction on robbery by fear, § 560.120, RSMo 1969. A submissible case of robbery by fear requires a showing of fear or intimidation which precedes or is contemporaneous with the actual taking of the property. State v. Vandament, 299 S.W.2d 532, 535[3] (Mo.1957). It is the duty of the court to instruct the jury on all questions of law arising in the case which the evidence will support. Rule 26.02(6); State v. Anderson, 515 S.W.2d 534, 537[2] (Mo.1974).

In her testimony concerning the time the display cases were being smashed and the rings removed, Miss Kalt stated: “I was in fear of my life * * * I ran to the back of the store.” And again later: “I was afraid that they might [hurt me].” This alone is sufficient evidence of fear for an inclusion of the given instruction. In State v. Reynolds, 521 S.W.2d 486, 487[2] (Mo.App.1975), concerning the same incident, this court stated: “ * * * a jury could reasonably find that the action of 15 to 20 persons converging upon a jewelry store flourishing chains, stones, sledgehammers and tire tools and smashing showcases was calculated to and did engender fear of immediate injury to the person in charge.” We agree.

Appellant also contends that he was deprived of a fair trial because of certain actions of the trial court from which the jury could infer prejudice. Appellant first argues that he was prejudiced because during the voir dire the judge qualified a statement made by defense counsel concerning the pretrial release of prisoners. The mandate to courts to maintain a neutral position in the trial, State v. Hill, 518 S.W.2d 682, 685[6-9] (Mo.App.1975), was not violated in this case. The judge’s comment was a proper attempt to correct a misstatement of law. The comment was not prejudicial, and, even assuming it should not have been made, it was directed to counsel, and it alone cannot be said to have deprived appellant of a fair trial. State v. Phelps, 478 S.W.2d 304, 310[16—18] (Mo.1972).

Appellant further objects to the trial court’s questioning of the state’s witness called to establish the value of the stolen jewelry. After defense counsel made several objections to the introduction of state’s Exhibit 10 (a folder containing inventory records of the jewelry store) on the ground of insufficient foundation, the trial court questioned the witness to establish the admissibility of the documents as business records. Appellant claims that such questioning lent undue weight to the witness’s testimony and by implication rebuked defense counsel for his previous objections.

It is the judge’s duty to put such questions to the witnesses as seem to him desirable to elicit the truth more fully. State v. James, 321 S.W.2d 698, 704[2] (Mo.1959). The judge’s discretionary power to interrogate witnesses is not unlimited and should be exercised with greater caution in criminal than in civil cases. He should avoid protracted examination that might impair the atmosphere of neutrality. State v. Crockett, 419 S.W.2d 22, 27[10] (Mo.1967). We cannot conclude from the record that the trial court abused its discretion or made improper use of its power to interrogate witnesses. Defendant’s point is without merit.

Finally, appellant contends that the closing argument of the prosecution was improper in that it tended to arouse the passions and personal hostility of the jury toward appellant. The comment that appellant asserts was improper is:

“Ask yourselves whether you want this to go on in the community in stores, in shops. Do you want groups of 15 people to be able to storm in there? And these are weapons. I wanted them passed around to you so you could feel the weight of that rock and see that hammer and what it could do to a person. Do you want these things flying around in stores where people, wives, and where you go? No. And a robbery verdict in this case is the proper one because it recognizes that element of fear and terror. I submit the word must go out to other people that you will commit this defendant — ”

It is well established in Missouri that “questions of the propriety of oral argument are addressed to the discretion of the court; and a reversal on such ground occurs only upon abuse of such discretion.” State v. Jewell, 473 S.W.2d 734, 741[8] (Mo.1971). The prosecution is generally permitted considerable latitude in arguing the necessity of law enforcement and the responsibility of the jury. State v. Gay, 523 S.W.2d 138, 144[15] (Mo.App.1975); State v. King, 334 S.W.2d 34, 40[8-10] (Mo.1960). Only an inflammatory appeal to bias or hostility against defendant which impaired his fundamental right to a fair trial would constitute reversible error. Cloud v. State, 507 S.W.2d 667, 669[5] (Mo.App.1974).

It must be remembered, however, that the bounds of proper closing argument are exceeded when the prosecution in oral argument attempts to “personalize” the jury and to suggest an acquittal would endanger the jurors and their families. State v. Raspberry, 452 S.W.2d 169, 172[2-5] (Mo.1970). A review of the argument quoted above indicates that the prosecutor briefly transgressed and commenced to “personalize” the jury. As a basis for our consideration of trial errors, however, in addition to the presentation of such objection to the trial court for its consideration in a motion for new trial, objection must be made at the trial at the time of the occurrence complained of. State v. Mabery, 437 S.W.2d 91, 93[1] (Mo.1969). An objection to arguments or statements of counsel must be specific and the objection must call the attention of the court to the ground or reason for the objection. State v. Lang, 515 S.W.2d 507, 511[6] (Mo.1974). Here, the prosecutor’s remarks which “personalized” the jury were combined with other argument of a permissible nature concerning law enforcement and the necessity of enforcing the laws in the community. The objection following this portion of the argument was: “Same objection. This is not argument directed toward the guilt or innocence of the defendant.” The last previous objection to which this could be related for specification of error was: “I object, your Honor. This is argument which is not directed toward the guilt or innocence of the defendant. This is an improper comment.” In that particular instance the objection followed argument by the prosecutor urging the responsibility of the jury to the community to enforce the law. Defense counsel therefore did not complain of the argument because it suggested personal danger to the jury or their families if defendant was acquitted. Rather the basis of objection was that the argument was not directed toward the guilt or innocence of the defendant. The assertion of the proper reason in the motion for new trial and in the brief on appeal does not cure the omission in the trial of the case at the time of the objection. Since the trial judge did not have the opportunity to correct the error at the time of trial under the objection made, we cannot determine that the court committed reversible error. Because control of argument is primarily the function of the trial court, an appellate court is not prone to examine complaints regarding a matter not properly brought to the trial court’s attention. State v. Jackson, 511 S.W.2d 771, 775[8] (Mo.1974).

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.