author: YOUNG, Justice.

text:
    O. R. GRAHAM, Appellant, v. OAK PARK MOBILE HOMES, INC., Appellee.
    No. 1099.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 31, 1977.

      William H. Berry, Jr., Corpus Christi, for appellant.
    Mark Giles, Stone, Berryman & Giles, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is a suit to recover the value of a mobile home type trailer and its contents destroyed by fire. O. R. Graham brought suit against Oak Park Mobile Homes, Inc., based on res ipsa loquitur and specific acts of negligence. A general issue of negligence was submitted to the jury with instructions of res ipsa loquitur. The jury found liability issues for the plaintiff and found his damages to be $13,200.00. Defendant moved for a judgment non obstan-te veredicto and it was granted. Plaintiff appeals.

The parties tried the case before a jury which found; (1 and 2) that the destruction of the trailer and its contents was proximately caused by the negligence of the defendant; (3 and 4) that the failure of the plaintiff to test the trailer’s butane system was negligence; and (6) that plaintiff’s damages were $13,200.00. The jury refused to find (5) that plaintiff’s negligence was a proximate cause of the fire. The trial court had included in the charge, among other instructions, the following instruction on res ipsa loquitur.

“You are instructed that you may infer negligence by a party but are not compelled to do so, if you find that the character of the accident is such that it would ordinarily not happen in the absence of negligence and if you find that the instrumentality causing the accident was under the management and control of the party at the time of the negligence, if any, causing the accident probably occurred.”

A fair summary of the background facts shows these events and circumstances. Appellant purchased the mobile home from the appellee on June 7,1972, and moved in that same day together with his wife and child. That night appellant discovered that there was no hot water for him to take his shower. Appellee’s agent, James Booker O’Bryant, was notified and he said it would be checked out. The next day, on June 8, O’Bryant and Robert Arriaga, O’Bryant’s employee, replaced the heating element in the water heater. This process was complicated by the need to drain the water (20 gallons) from the heater onto the floor. To do this and to protect the carpet and interi- or of the heater closet, a dam of towels was built funneling the water out of the trailer. Some wetting of the insulation in the hot water heater and the carpeting surrounding it, however, did occur. To remove the element four foundation screws and two electrical connections were involved. Reconnection is done the same way and the wires can be attached to either pole. The element connections were located at the bottom of the heater three to six inches from the floor. O’Bryant and Arriaga finished their task between 5 and 6 p. m., but left the door off the heater to permit further drying. They did replace the panel to the heater closet.

That evening at approximately 9:30, appellant showered and there was hot water. At approximately 11:00 that night, he discovered a fire in the area of the water heater and attempted to extinguish it with water. This effort was ineffectual and the trailer was destroyed.

Appellant has brought forward 13 points of error. In his points 1 and 2 he asserts that the trial court committed error in granting appellee’s motion for judgment notwithstanding the verdict. Because of this error the appellant urges that we should reverse the trial court’s judgment and render judgment for him. We agree.

To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined by us that there is no evidence on which the jury could have made findings relied upon. And in acting upon the motion, we must consider the testimony in the light most favorable to party against whom the motion is sought; further, every reasonable intendment deducible from the evidence is to be indulged by us in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Rule 301, T.R.C.P.

Our case was presented to the jury by general negligence issues accompanied by an instruction on res ipsa loquitur. In considering appellant’s points 1 and 2, we will be guided by the rules about res ipsa loquitur as set out in Mobile Chemical Company v. Bell, 517 S.W.2d 245 (Tex.Sup.1974), and 40 Tex.Jur.2d, Rev., Part 2, § 140 and § 141. The doctrine of res ipsa loquitur is applicable when the character of the accident is such that it would not ordinarily occur in absence of negligence and when the instrumentality causing injury is shown to have been under management and control of defendant. About control, it is sufficient to show that the defendant was in control at the time negligence inferable from the character of the accident probably occurred, so that reasonable probabilities point to defendant and support reasonable inference that he was the guilty party.

Continuing with res ipsa loquitur rules, the possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by preponderance of the evidence that negligence, if any, lies at defendant’s door. The evidence must show, however, that the injury or damage was the result of an act or omission of the defendant.

Keeping in mind the foregoing rules about motions for judgment notwithstanding the verdict and about the doctrine of res ipsa loquitur we now proceed to an analysis of the evidence.

There seems to be no dispute but that the fire was one that would not have ordinarily occurred in the absence of negligence. At any rate, O’Bryant testified that a properly operating water heater normally is not expected to be something that catches on fire. And there is no dispute but that O’Bryant and Arriaga, employees or agents of the defendant appellee, were the only ones who participated in the replacement of the heater element and the drainage of the water from the heater.

The chief controversy between the parties centers on the cause of the fire. In other words, whether the water drained from the heater by O’Bryant and Arriaga is the culprit by causing a short or arcing precipitating the fire. In that regard, we look principally to the appellant’s expert, Charles L. Throneburg, who was a fire inspector for the Corpus Christi Fire Department. Having attended schools for the investigation of fires, he stated that he had been in the field of fire investigation for sixteen years. He investigated the trailer fire the next day after it happened. His opinion about the cause of the fire and the facts underlying his opinion follows:

“(examining photographs of the fire destroyed trailer) Well, this is the trailer in question and this is the water heater where more of the origin of the pattern of the fire was beneath the water heater area. You can tell by the way of the intense burning and the way the pattern shows that it went up and spread from that point.
* * * * * *
Apparently the fire originated at the bottom of an electric hot water heater which had been repaired the day before the fire, June 7, 1972, by Mr. J. O’Bryant and his employee, Robert Arriaga. Repairs consisted of installing a new heating element in the . . . heater. The door to the electric operating control and the thermostat connections was left off because the insulation was wet and Mr. O’Bryant thought it would dry faster if the doors was removed.
******
The apparent cause of this fire was the heating element in the electric hot water heater shorting out due to the dampness.”

He said that during his investigation he interviewed both the owner and the seller of the trailer. At the trial Mr. Graham, the appellant, testified that when he had gone in the bathroom (the night of the fire) to take his shower, the carpet there was still wet.

Appellee attacks the opinion of Throne-burg about the cause of the fire by arguing that the opinion amounted to no evidence because it was based on hearsay and was no more than a qualified guess. In that connection, our reading of all of Throneburg’s testimony demonstrates that a short in the heating element caused by dampness was clearly his opinion of the cause even though he used the words “apparently” and “apparent” in his opinion and even though he indicated on cross-examination “possibilities” of other causes.

Further about Throneburg’s opinion, a witness who qualifies by training and experience as an expert on the origins of fire can, after investigation, give the jury the benefit of his opinion as to the cause of fire. Fulton Fire Insurance Company v. First State Bank of Willis, 353 S.W.2d 937 (Tex.Civ.App. — Waco 1962, writ ref’d n. r. e.). The opinion of an expert in regard to the cause of a fire based on both facts known to him or proved to be true is not valueless or inadmissible merely because his opinion is based in part on hearsay information. Bryant v. Trinity Universal Insurance Company, 411 S.W.2d 945 (Tex.Civ.App. — Dallas 1967, writ ref’d n. r. e.). We hold the jury was entitled to consider the opinion of Throneburg.

Appellee indicates that it is just as probable that the cause of the fire was a leak form the trailer’s butane system as it was a short in the heating element. Graham did connect the butane system from an outside source of supply to the connection on the outside of the trailer. The line inside the trailer wall lay within six inches to one foot of the hot water heater. But Graham testified that he at no time smelled any odor of butane and, according to him, “it has a real foul odor.” Mrs. Graham said that she had cooked several meals prior to the fire with no problems with the butane. So the jury was entitled to believe the cause of the fire was more probably a short in the heating element than to a leak in the butane line.

We hold that the evidence was legally sufficient to support the jury findings 1 and 2 on the basis of negligence or res ipsa loquitur. Appellant’s points 1 and 2 are sustained; therefore, it is our duty to reverse the trial court’s judgment and render judgment for the appellant.

In his remaining points (3 through 13) appellant, in the alternative, requests us to reverse and remand the case for a new trial. Because we have heretofore held that the trial court’s judgment should be reversed and judgment rendered for the appellant based on appellant’s points 1 and 2, we deem it unnecessary to resolve appellant’s remaining points. Nevertheless, we have considered them and they are overruled.

By cross-point the appellee challenges the factual sufficiency of the evidence to support the jury’s answers to special issues 1 and 2. We have examined the entire record as we are required in that regard. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In the forepart of this opinion we have detailed briefly the evidence which we have determined to be legally sufficient to support the jury’s answers to the questioned special issues. And in our examination of the remainder of the record we have found nothing to cause the evidence to be factually insufficient to support those answers. The appellee’s cross-point is overruled. .

We, therefore, reverse the trial court’s judgment and here render judgment in favor of the appellant for his damages of $13,200.00 in accordance with the jury’s verdict plus interest and costs.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice. SHANNON, Justice,

license: Public Domain

text:
    Jimmy DOMINGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 12492.
    Court of Civil Appeals of Texas, Austin.
    Feb. 2, 1977.
    M. N. Garcia, Austin, for appellant.

      Robert 0. Smith, Dist. Atty. of Travis County, Richard E. Banks, Asst. Dist. Atty., Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant, fifteen years old, was referred to the Juvenile Court of Travis County for the alleged offense of murder. The State of Texas petitioned the juvenile court for a waiver of jurisdiction and transfer hearing.

At the hearing appellant asked the juvenile court to consider his motion to determine fitness to proceed. This motion was granted and three expert witnesses testified at the hearing that appellant was schizophrenic and was possibly suffering from organic brain damage. At the conclusion of this uncontradicted testimony, the juvenile court entered an order finding that appellant “lacks the capacity to understand the proceedings in this court, and further lacks the capacity to assist in his own defense, all as a result of mental illness and is therefore unfit to proceed.”

The juvenile court then ordered that a hearing be held to determine whether appellant should be committed for a period of temporary hospitalization at which time counsel for appellant presented his application for temporary hospitalization together with certificates of the completed mental examinations by the doctors as described above. Appellant was then committed to the Austin State Hospital for a period not to exceed ninety days.

Subsequently, appellant was discharged from the State Hospital and sent back to the juvenile court with a report that “there is no evidence of serious mental illness or organicity.” The report also stated appellant “performed at the lower end of the Borderline Mental Retardation Category” and although there was no clear evidence of brain dysfunction, test data was “suggestive” of a possible brain dysfunction and that “the possibility of a brain dysfunction should not be discounted.”

The hearing on the matter of waiver of jurisdiction and transfer to the criminal court was continued at which time appellant moved that proceedings be initiated to determine the question of his mental illness or mental retardation by virtue of Tex. Family Code Ann. § 55.02, § 55.03, and § 55.04. This was denied and appellant was ordered transferred to the 167th District Court of Travis County for criminal proceedings.

The court ordered this transfer notwithstanding the fact that its order declaring that appellant “lacked the capacity to understand the proceedings of the court and further lacked the capacity to assist in his own defense, all as a result of mental illness and is therefore unfit to proceed” was still standing.

Section 55.04(a) of the Family Code states that, “No child who as a result of mental disease or defect lacks capacity to understand the proceedings in juvenile court or to assist in his own defense shall be subjected to discretionary transfer to criminal court, adjudication, disposition, or modification of disposition as long as such incapacity endures.”

Under the state of this record, appellant remains unfit for transfer to criminal court. We hold that, as contended by appellant, a hearing on this matter should have been held followed by a judicial determination as to whether appellant’s unfitness to proceed still existed. Consequently, we must reverse the judgment of the juvenile court and remand the case thereto with instructions to determine whether appellant’s unfitness to proceed still exists.

Reversed and Remanded with Instructions.

SHANNON, Justice,

dissenting.

I dissent.

On January 21, 1976, the juvenile court ordered appellant temporarily hospitalized at the Austin State Hospital. On February 16, 1976, appellant was released from the Austin State Hospital. On that date Dr. George B. Tipton, Director of the Adolescent Center at the Hospital, wrote the juvenile court in part as follows:

“In my opinion, Jimmy [appellant] is able to distinguish right froto wrong and to adhere to the right. In my opinion, he is not suffering from a serious mental illness that leads to any lack of responsibility for his behavior. He is capable of cooperating with his attorney and assisting in his own defense.”

Dr. Tipton’s letter appears in the transcript and was before the court. Tex. Family Code Ann. § 54.02(a)(1) (1975).

After appellant’s release from the Austin State Hospital and before the hearing on the matter of waiver and transfer, appellant’s counsel filed a second motion for psychiatric examination of appellant. The juvenile court overruled the motion.

The court erred in overruling appellant’s motion for a psychiatric examination. Tex. Family Code Ann. § 55.04 (1975). Meza v. State, 543 S.W.2d 189 (Tex.Civ.App.1976, no writ).

Appellant, however, did not discharge his burden of demonstrating that the error of the court amounted to such a denial of his rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434, Meza v. State, supra, see D. L. C. v. State, 533 S.W.2d 157 (Tex.Civ.App.1976, no writ). Appellant did not tender evidence on bill of exception showing that after temporary hospitalization and at trial time appellant lacked capacity to understand the proceedings in juvenile court or that he lacked capacity to assist in his own defense.

I would affirm the judgment of the juvenile court waiving its exclusive original jurisdiction and transferring appellant to district court for criminal trial.

      . Tex. Family Code Ann. § 54.02 (1975).

      . Tex. Family Code Ann. § 55.04 (1975).


author: BISSETT, Justice.

text:
    Eva M. GARCIA, Third-Party Defendant, Appellant, v. Consuelo RAMOS, Appellee.
    No. 1130.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 3, 1977.

      Eduardo E. De Ases, Corpus Christi, for appellant.
    Richard W. Rogers, III, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is an action to remove cloud from title to a lot, and for damages for the wrongful withholding of the possession of the lot.

Suit was instituted on September 16,1974 by Alicia P. Meza, individually and as ad-ministratrix of the Estate of Guadalupe M. Meza, Deceased, against Consuelo Ramos. Thereafter, Consuelo Ramos brought a third party action against Eva M. Garcia. Trial was to the court, sitting without a jury. Judgment was rendered in favor of Alicia P. Meza, the plaintiff, against Consuelo Ramos, the defendant, in the action to remove cloud from title. The judgment denied the plaintiff any recovery against Consuelo Ramos in the action for damages for wrongful withholding of possession of the lot. The judgment also awarded Consuelo Ramos, as third party plaintiff, a recovery of $3,000.00 in her action against Eva M. Garcia, the third party defendant. Neither Alicia P. Meza nor Consuelo Ramos perfected an appeal from the portions of the judgment that were adverse to them. Eva M. Garcia has perfected an appeal from that part of the judgment which awarded $3,000.00 to Consuelo Ramos.

We first identify the parties to the suit in the trial court. Alicia P. Meza is the surviving wife of Guadalupe M. Meza, who died in March, 1971. Consuelo Ramos is a sister of Guadalupe M. Meza, deceased. Eva M. Garcia is not, according to the record, related to either Alicia P. Meza or Consuelo Ramos. Both Guadalupe M. Meza, deceased, and Consuelo Ramos are children of Francisca Martinez Meza, who died in April, 1974.

The lot in question is a residential lot in Corpus Christi, Texas. It will henceforth be referred to as “the premises”. The premises, prior to January 2, 1956, was owned by Joe Garcia and wife, Eva M. Garcia. Joe Garcia died in September, 1963.

Alicia P. Meza, plaintiff, among other allegations, alleged: that on January 2, 1956, she and her husband, Guadalupe M. Meza (who died on March 81, 1971), purchased the premises from Joe Garcia and wife, Eva M. Garcia (the third party defendant in this case); that Francisca Martinez Meza, plaintiff’s mother-in-law, had been living on the premises “rent free” for many years with the permission of her deceased husband (a son of Francisca Martinez Meza), but that after his death plaintiff discovered that Consuelo Ramos was claiming title to the premises through a deed dated April 25, 1965 from Eva M. Garcia, as grantor, to Francisca Martinez Meza, as grantee, which conveyed the premises to the latter, and through a deed dated November 1, 1969, executed by Erancisca Martinez Meza, as grantor, to her (Consuelo Ramos), as grantee, which conveyed the premises to her (Consuelo Ramos), subject to a life estate reserved by the grantor; that plaintiff’s title to the premises was superior to that asserted by the defendant, Consuelo Ramos; and that the deeds under which Consuelo Ramos claimed were null and void. She prayed that the cloud cast on her title to the premises by the deeds under which Consuelo Ramos claimed be removed, and that such deeds be declared null and void.

Consuelo Ramos based her third party action against Eva M. Garcia, on the breach of the covenants of general warranty contained in a deed dated April 29, 1965, executed by Eva M. Garcia, as grantor, to Francisca Martinez Meza as grantee which conveyed the premises to the grantee named therein for a stated consideration of $3,000.00 cash paid by the grantee to the grantor. She prayed that in the event Alicia P. Meza, the plaintiff prevailed in her suit and it was decreed that Alicia P. Meza had the superior title to the premises and recovered possession thereof or damages because of any wrongful withholding of the possession of the premises that she (Consuelo Ramos) have judgment over and against Eva M. Garcia in the amount of $3,000.00.

Eva M. Garcia, in her verified answer to the third party action filed by Consuelo Ramos, denied generally the allegations contained in the pleading and, in effect, specially pled that there was no “consideration paid to her by Francisca Martinez Meza for the Deed dated April 29, 1965, and therefore said Deed is void”.

The judgment decreed that the deed from Eva M. Garcia, as grantor, to Francisca Martinez Meza, as grantee, dated April 29, 1965, and the deed from Francisca Martinez Meza, as grantor, to Consuelo Ramos, as grantee, dated November 1,1969, were each null and void. Both deeds were cancelled by the judgment.

The findings of fact that bear on this appeal read as follows:

“5. The deed from Eva M. Garcia, a feme sole, to Francesca (sic) Martinez Meza, dated April 29, 1965 contains the words ‘. . . for and in consideration of the sum of Three Thousand and No/100 Dollars cash in hand paid by Francesca (sic) Martinez Meza, the receipt of which is hereby acknowledged and confessed .’ and the words ‘. and grantor hereby binds herself heirs, executors and administrators to warrant . . . the said premises unto the grantee . . .’
6. The damages resulting to Francesca (sic) Martinez Meza as a result of failure of title to the premises were the amount paid by her as purchase price, i. e. $3,000.00.”
The trial court concluded:
“3. The words quoted in Finding of Fact No. 5 serve to create a contractual obligation on the part of Eva M. Garcia to compensate Francesca (sic) Martinez Meza for any damages she might suffer as a result of not receiving good title to the premises.”
Eva M. Garcia’s first point of error reads:
“The trial court erred in holding the deed from Appellant to Francesca (sic) M. Meza was valid and binding when there was no evidence of any consideration from Francesca (sic) M. Meza to Appellant.”

In deciding a “no evidence” point, an appellate court considers only the evidence and the inferences reasonably resulting therefrom which tends to support the findings of fact made by the trier of fact and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

The deed dated April 29, 1965, executed by Eva M. Garcia, as grantor, to Francisca Martinez Meza, as grantee, which conveyed the premises in dispute to the grantee was introduced into evidence. The deed reads, in part, as follows:

“. . . That I, Eva M. Garcia, a feme sole, of the County of Nueces State of Texas for and in consideration of the sum of THREE THOUSAND AND no/100 Dollars cash in hand paid by Francisca Martinez Meza the receipt of which is hereby acknowledged and confessed, have Granted, Sold and Conveyed, and by these presents do Grant, Sell and Convey unto the said Francisca Martinez Meza

The deed contained covenants of general warranty. The attorney for Eva M. Garcia objected to the introduction of the deed in evidence solely on the ground that the pleadings of the said Eva M. Garcia “allege that there was no consideration coming from Francisca Meza to my client, Mrs. Eva Garcia, for the execution of this deed.” The trial court overruled the objection. Eva M. Garcia does not complain of the trial court’s action in this appeal by a point of error.

Consuelo Ramos was asked:
“Mrs. Garcia gave you a deed _ . . executed a deed in favor of your mother, which is admitted into evidence. Why did she do that?”

No one objected to the question and the witness answered:

“Because we had finished paying the property.”

There is no other evidence that contradicts the recitation in the deed to the effect that Francisca Martinez Meza paid $3,000.00 cash to Eva M. Garcia as the purchase price for the lot. There is also evidence of probative value that Francisca Martinez Meza, together with Consuelo Ramos, actually paid $32.00 per month to Guadalupe M. Meza, commencing immediately after Joe Garcia and wife, Eva M. Garcia, executed the aforesaid deed to Guadalupe M. Meza and wife Alicia P. Meza in January, 1956, and that such amount of money was paid by Guadalupe M. Meza to the Garcias as part of the purchase price for the premises. However, since the only point brought forward with respect to the actual consideration paid Eva M. Garcia in connection with the execution of the deed to Francisca Martinez Meza is a “no evidence” point, we cannot consider the evidence which disputes the payment of $3,000.00 to Eva M. Garcia by Francisca M. Meza. The recitation in the deed itself is some evidence of probative value that Francisca M. Meza paid $3,000.00 in cash to Eva M. Garcia on April 29, 1965, when the deed from Eva M. Garcia to Francisca M. Meza was signed. No points are asserted that the evidence is factually insufficient to support the $3,000.00 award in favor of Consuelo Ramos, or that the award is so against the great weight and preponderance of the evidence as to be manifestly unjust. The first point of error is overruled.

The second point of error asserted by Eva M. Garcia reads:

“The trial court erred in setting damages at $3,000.00. ...”

The point is too vague and general to be considered by this Court because it does not direct this Court’s attention to any particular point of error. The effect of such a broad and general point is to simply assert that the trial court committed reversible error in making the award. The point does not comply with the requirement of Rule 418, T.R.C.P. Blackmon & Associates, Inc. v. Palmer Building Supplies and Specialties, Inc., 463 S.W.2d 228 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d, n. r. e.); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex.Civ.App. — Dallas 1962, writ ref’d, n. r. e.); Stolte v. Mack Financial Corporation, 457 S.W.2d 172 (Tex.Civ.App. — Texarkana 1970, no writ); Wagon Wheel Club, Inc. v. Restaurant Equipment & Supply Co., 410 S.W.2d 788 (Tex.Civ.App. — San Antonio 1967, no writ). The second point is error is overruled.

Findings of fact and conclusions of law were filed by the trial judge. Additional findings and conclusions were requested by Eva M. Garcia. There is no showing in the record that any additional findings or conclusions were made by the trial judge. Eva M. Garcia, in her third point of error, contends that the failure of the trial judge to file additional findings of fact and conclusions of law is a sufficient ground for a reversal of the judgment with respect to the award of $3,000.00 in favor of Consuelo Ramos and a remand of the controversy between Consuelo Ramos and her (Eva M. Garcia) for a new trial. Additional findings and conclusions are not required to be prepared and filed by the trial judge where they do not relate to the ultimate or controlling issues, or where they conflict with the original findings and conclusions made and filed by the trial judge. Huber v. Buder, 434 S.W.2d 177 (Tex.Civ.App. — Fort Worth 1968, writ ref’d, n. r. e.); Friedman v. Cohen, 429 S.W.2d 510 (Tex.Civ.App.— Houston [14th Dist.] 1968, writ ref’d, n. r. e.).

In the instant case, the requested additional findings and conclusions either conflict with the original findings and conclusions, or do not relate to the ultimate or controlling issues in the controversy between Consuelo Ramos and Eva M. Garcia. There is no showing that the failure to prepare and file the requested additional findings and conclusions prevented Eva M. Garcia from making a proper presentation of her case to this Court. The failure to prepare and file additional findings and conclusions, under the record here presented, does not constitute reversible error. The third point is overruled.

Fundamental error does not appear on the face of the record. Eva M. Garcia has not, by the points of error urged by her, shown any reason why the judgment of the trial court insofar as it awarded Consuelo Ramos a recovery of $3,000.00 against her should be disturbed by this Court.

The judgment of the trial court is AFFIRMED.


author: KEITH, Justice.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Appellants, v. LAKE LIVINGSTON PROPERTIES, INC., Appellee.
    No. 7878.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 3, 1977.
    Rehearing Denied Feb. 24, 1977.
    Thomas S. Hornbuckle, Al Taylor, Houston, for appellants.
    James E. Faulkner, Coldspring, for appel-lee.
   KEITH, Justice.

In this appeal we review a judgment which awarded workmen’s compensation benefits to an injured workman against the compensation insurance carrier for his employer and denied to the plaintiff a joint and several judgment for the same benefits against his employer, a subscriber under the Act.

Because of the confused nature of the record, we will set out the procedural developments in chronological order. Plaintiff, Robert C. Greene, alleged and testified that he was injured on January 28, 1970, while in the course and scope of his employment with Lake Livingston Properties, Inc. (hereinafter “employer”), in San Jacinto County. He went to a hospital in Huntsville where he stayed for approximately a month and, upon his release, retained an attorney to represent him in connection with his personal injury claim.

This attorney did not file a notice of injury or a claim for workmen’s compensation on behalf of plaintiff although the record is clear that the appellant, “St. Paul”, was the workmen’s compensation insurance carrier for plaintiff’s employer who was a subscriber under the Act. Instead, the attorney instituted a personal injury action in San Jacinto County seeking damages for plaintiff’s personal injuries from his employer. This suit, No. 5634, was filed on September 25, 1970, and named only plaintiff’s employer, Lake Livingston Properties, Inc., as a defendant. This suit was dismissed on November 2, 1972 after it was shown that the defendant therein was a subscriber under the compensation act and plaintiff had no claim against his employer.

Plaintiff, through another attorney, filed a claim for workmen’s compensation with the Industrial Accident Board on March 19, 1973, approximately thirty-eight months after his alleged injury and more than four months after his personal injury suit had been dismissed.

His claim for compensation benefits having been denied, plaintiff perfected an appeal from the Industrial Accident Board. In addition to the necessary allegations in such a suit, he named his employer, one of its executives, Dungan, and his foreman, Parker, as defendants. He sought total and permanent disability benefits from the carrier and, as to the other defendants, he sought damages measured in terms of compensation benefits in several alternate causes of action. He also named his first attorney as a defendant.

As to Lake Livingston Properties, Dun-gan, and Parker, plaintiff alleged that they had falsely and fraudulently misrepresented that his employer was not a subscriber under the workmen’s compensation law at the time he was injured; that he was deceived by such false statements upon which he relied to his detriment; that his employer, Dungan, Parker, and his first attorney conspired to deprive him of his rights under the compensation act; and, finally, that his first attorney was negligent in failing to ascertain that this employer was a subscriber under the Act.

He pleaded that he acted as a prudent man and had good cause for failure to file his claim within the six months; but, alternatively, he sought judgment against his employer, Parker, Dungan, and his first attorney for his damages, as measured by his right of recovery under the compensation act as and for total and permanent disability-

Plaintiff went to trial upon his original petition since all jurisdictional and dilatory pleas of the several defendants were overruled.

The first attorney having died during the pendency of the suit, his estate was dismissed before trial, and plaintiff did not secure a judgment against Dungan and Parker. The jury found plaintiff sustained injuries in the course of his employment which entitled him to recover total and permanent disability benefits; that he had good cause for failing to file his claim within the statutory period; that Parker falsely represented to plaintiff that his employer was not a subscriber; that plaintiff acted as. a reasonable man in believing such representation and that such reasonable belief caused him to delay filing his claim and such belief was good cause for his failure to file the claim.

We note at this point that Parker was an employee of Lake Livingston Properties, Inc., and there is no contention that he was acting in any capacity for and on behalf of the compensation carrier, St. Paul.

Upon motion of plaintiff, judgment was entered against St. Paul and Lake Livingston Properties, jointly and severally, for the maximum benefits under the compensation act and the medical expenses found by the jury, some $1,300, the judgment being dated December 15, 1975. However, upon the ex parte motion of Lake Livingston Properties, the court set aside the judgment insofar as it related to that corporation and reaffirmed the judgment against St. Paul, such action having been taken on January 31, 1976.

Plaintiff and the carrier duly perfected their appeals from the judgment and timely and properly requested the preparation of a statement of facts. The court reporter, for reasons never satisfactorily explained, was dilatory in preparing the statement of facts necessitating many extensions of time for the completion of the record.

Finally, under threat of the issuance of a writ of mandamus from this court, the reporter completed the record but did not tender it to any of the counsel in the case. Instead, he certified that it was an accurate transcription of the testimony adduced upon the trial and procured the signature of the trial judge thereon approving the statement of facts. It was then mailed to our clerk who, mistakenly, filed it for record. The statement of facts having been filed under these circumstances on September 27, 1976, counsel for Lake Livingston Properties, appellee, moved on October 20,1976, to strike the “unauthenticated statement of facts” and for a dismissal of the cause.

We requested reply memoranda from the two appellants in response to appellee’s motion to strike but only St. Paul complied, the substance of its reply being that it used all due diligence in procuring the statement of facts (with which we agree) and cited Foster v. Buchele, 213 S.W.2d 738, 740 (Tex.Civ.App. — Ft. Worth 1948, writ ref’d n.r.e.), for the proposition that the court of civil appeals had discretionary authority to permit a return of the record to counsel with additional time to procure its authentication in accordance with the rules. Assuming, arguendo, the correctness of the holding in the cited ease, it has no applicability here since neither appellant sought any such relief in this court.

In Roberson Farm Equipment Company v. Hill, 514 S.W.2d 796, 798-800 (Tex.Civ.App. — Texarkana 1973, writ ref’d n.r.e.), Chief Justice Chadick discussed the rules governing the filing of an unauthenticated statement of facts. In the interest of time and space, we adopt such reasoning and the authorities therein cited so copiously as governing the question in our case.

Greene perfected an appeal only as against Lake Livingston Properties; and St. Paul appealed only as against Greene. Thus, while we are required to sustain the motion to strike the statement of facts as to Greene under the rationale of Roberson Farm Equipment Co., supra, we are under no compulsion to enter such an order as between Greene and St. Paul. Greene, having made no objection to the statement of facts, has waived all informalities in the manner of bringing the case to this court. See Tex.R.Civ.P. 404. Cf. Punch v. Gerlach, 153 Tex. 39, 263 S.W.2d 770, 771 (1954).

Greene was, as to St. Paul, an appellee; consequently, he has waived the informality in the authentication of the statement of facts as between himself and St. Paul. Cf. Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486, 487 (1947). See also, Englander Co. v. Kennedy, 424 S.W.2d 305, 307 (Tex.Civ.App. — Dallas), writ ref’d n.r.e., 428 S.W.2d 806 (Tex.1968).

In our chronological statement of the sequence of events leading up to this appeal, we have alluded to the salient facts which show, as a matter of law, that plaintiff Greene may not recover against the compensation insurance carrier. An examination of the statement of facts reveals the evidentiary support of such resume. Greene contended that he was injured while on the job as an employee of Lake Livingston Properties and it was shown without dispute that it was a subscriber under the Act with St. Paul as the carrier. Greene hired his first attorney shortly after the accident but he filed a common law damage suit and did not file a claim for workmen’s compensation benefits under the Act. This attorney was Greene’s agent, and his failure to file the claim is attributable to Greene. Texas Employers Insurance Ass’n v. Wermske, 162 Tex. 540, 349 S.W.2d 90, 95 (1961); Swearingen v. Swearingen, 487 S.W.2d 784, 787 (Tex.Civ.App. — San Antonio 1972, writ dism’d).

From our examination of the record, we are of the opinion that plaintiff Greene failed, as a matter of law, to show the existence of good cause for the failure to timely file his claim for compensation. See Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948); Texas Employers Insurance Ass’n v. Wermske, supra.

Bad advice from his attorney as to the time for filing of the claim for compensation, does not constitute good cause. Dillard v. Aetna Insurance Company, 518 S.W.2d 255, 257 (Tex.Civ.App. — Austin 1975, writ ref’d n.r.e.).

Greene’s judgment against St. Paul is here and now reversed and judgment is rendered that he take nothing against that defendant in the court below.

We turn now to Greene's appeal against his employer, Lake Livingston Properties, and find that he has a single point of error assigned:

“The trial court erred in granting the motion to amend [filed by Lake Livingston Properties] because the pleadings, evidence, and verdict entitled appellant Greene to judgment against appellee Lake Livingston Properties, Inc.” (emphasis supplied)

We are unable to reach the merits of Greene’s appeal since we have no authenticated statement of facts available for our use in his appeal as against Lake Livingston Properties. Again, the disposition of this point of error is to be found in the authorities cited in Roberson Farm Equipment Company v. Hill, supra, wherein the court said:

“These points show on their face that the merit of such points may only be determined by resort to the content of the statement of facts. In the absence of a statement of facts, the situation here, these points are not reviewable.” (514 S.W.2d at 800, citations omitted)

Therefore, the trial court’s judgment denying Greene any recovery against Lake Livingston Properties is affirmed.

Affirmed in part and in part reversed and rendered.

STEPHENSON, J., not participating.


author: KEITH, Justice. STEPHENSON, Justice

text:
    CITY OF BEAUMONT et al., Appellants, v. John Randall BOND, Appellee.
    No. 7921.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 10, 1977.
    Rehearing Denied Feb. 24, 1977.

      Lane Nichols, Beaumont, for appellants.
    Ronald L. Walker, Beaumont, for appel-lee.
   KEITH, Justice.

Appellee below instituted this declaratory judgment as a class action against the City of Beaumont and the Mayor and the individual members of the City Council of the City of Beaumont to declare a portion of a city ordinance invalid. The cause was submitted to the trial judge upon stipulated facts and judgment was entered declaring one section of the challenged ordinance to be invalid. Notwithstanding the fact that this was a class action with only twenty-seven persons and one named plaintiff, the judgment continued with another decretal paragraph reading:

“ORDERED, ADJUDGED AND DECREED AND DECLARED that the Plaintiffs individually have and receive from the defendants herein judgment per the following sums of money:
[and here follow thirty-three names with varying amounts of money set opposite the respective names]” (emphasis added)

Appellants have attacked the judgment with a single point which is quoted in the margin. We sustain the point.

As we have noted, the trial court held the challenged ordinance to be invalid since it was found to be in conflict with a statute. It is well to state, at this time, the rule governing the review of such contention.

It has long been settled that a general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927); Wagstaff v. City of Groves, 419 S.W.2d 441, 443 (Tex.Civ.App. — Beaumont 1967, writ ref’d n. r. e.). Moreover, it is the duty of the court to reconcile the ordinance with the general law if a fair and reasonable construction of seemingly conflicting enactments will leave both in concurrent operation. City of Houston v. Reyes, 527 S.W.2d 489, 494 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref d n. r. e.). Having stated the rule, we now examine the agreed facts and the contentions of the parties.

Since appellee has not challenged the correctness thereof, much of our statement of the case is taken from appellants’ brief without benefit of attribution. See Tex.R. Civ.P. 419 and Crawford v. Modos, 465 S.W.2d 220, 222 (Tex.Civ.App. — Beaumont 1971, writ dism’d).

On October 1, 1974, the Beaumont City Council adopted Ordinance 74-63; and, insofar as material to this appeal, the applicable provisions are to be found in subsection 1, quoted in the margin. Upon the same date, the City Council decided to grant an across the board ten percent wage increase to all employees (including Grade I policemen, our appellee’s class), effective October 1. 1974. From a budgetary standpoint, the City Council determined that it should freeze all automatic salary increases for all employees. To that end, the City Council enacted Ordinance 74-65 freezing the automatic six and eighteen-month salary increases granted in Ordinance 74-63. The challenged ordinance was adopted on October 3, 1974, with an effective date of October 1, 1974. No police officers accrued either six or eighteen months of service between October 1 and October 3, 1974. After the adoption of Ordinance 74-65, no two police officers with the same number of days of service with the Beaumont Police Department were paid different salaries.

The City of Beaumont is a home rule city and derives its powers to legislate from Tex.Const. art. XI, § 5, and Tex.Rev.Civ. Stats.Ann. art. 1175 (1963). So, it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers. Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286 (1948). Or, as was stated recently in Lower Colorado Riv. Auth. v. City of San Marcos, 523 S.W.2d 641, 644 (Tex.1975):

“The powers of home rule cities are subject to and may be limited only by their charters or by the Constitution or by general law.” (emphasis supplied)

Counsel for appellee argues that Ordinance 74-65 is invalid because the language therefrom quoted in footnote 3 is “inconsistent with the letter and spirit of Section 8 of Article 1269m, Revised Civil Statutes of the State of Texas.” Counsel contends that Ordinance 74-65 is in conflict with this language found in the cited statute:

“All persons in each classification shall be paid the same salary and in addition thereto be paid any longevity or seniority or educational incentive pay that he may be entitled to.”

There is no contention that the ordinance conflicts with any other statute.

Appellee cites Nichols v. Houston Police Officers’ Pension Board, 335 S.W.2d 261, 263 (Tex.Civ.App. — Waco 1960, writ ref’d n. r. e.), as supporting the position taken. Again, we disagree. The court there was considering an ordinance which established four different “base pay” provisions in a single classification based upon length of service in such classification. It was held that this was not inconsistent with the statute since the salary increases with length of tenure and “[i]t increases consistently and uniformly for ‘all persons’ in the classification.” Id.

The real thrust of appellee’s argument here is that he and those whom he represents, acquired a vested right to receive a salary increase at stated intervals in perpetuity; and, having acquired such vested right (apparently in the two-day period October 1-3,1974), City is powerless ever to repeal or mpdify the ordinance which appel-lee claims grants such rights. The mere statement of the contention discloses its fallaciousness.

The agreed statement of facts does not show that any member of appellee’s class had acquired a vested right in and to the automatic pay increases mentioned in Ordinance 74-63. It is apparent that our dissenting brother declares Ordinance 74-65 invalid because some member of appellee’s class may — sometime in the future —achieve the time in grade which would authorize the automatic pay increases provided in Ordinance 74-63 but for the adoption of Ordinance 74-65.

No one contends that Ordinance 74-65 operated retroactively; indeed, it specifically shows that it operates only prospectively. No police officer, upon the date of the adoption of Ordinance 74-65 was entitled to the increased pay because of his time in service in the particular classification. While our dissenting brother does not point to any authority supporting his views, we cite Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 253 (1887), where it was said:

“Facts may exist out of which, in the course of time or under given circumstances, a right would become fixed or vested by operation of existing law, but until the state of facts which the law declares shall give a right comes into existence there cannot be in law a right; and for this reason it has been constantly held that, until the right becomes fixed or vested, it is lawful for the law-making power to declare that the given state of facts shall not fix it, and such laws have been constantly held not to be retroactive in the sense in which that term is used.”

See also McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898, 900 (1955), wherein the foregoing quotation is to be found. This line of cases has continuing vitality. See, e. g., Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App. — Corpus Christi, 1975, writ ref’d n. r. e.); Pratt v. Story, 530 S.W.2d 325, 328 (Tex.Civ.App. — Tyler 1975, no writ).

The dissent, declining to discuss the vested rights theory, asserts that it is filed solely because of a conflict “between the ordinance and the statute.” The only possible conflict would be one which developed after the adoption of the ordinance; and, under the rationale of the Mellinger Case, supra, such could not and would not affect the validity of the ordinance.

It is clear and appellee does not contend that he and the members of his class have any vested property right in and to their employment with City nor any vested right to receive any stated amount of money per month as compensation for services rendered. City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 791 (1951); Sanchez v. El Paso Civil Service Commission, 475 S.W.2d 323, 324 (Tex.Civ.App. — El Paso 1971, writ ref d n. r. e.). Moreover, as was said in Amarillo v. Hancock, supra, 239 S.W.2d at 792:

“Under Section 8 [of Art. 1269m, Tex. Rev.Civ.Stats.Ann.], the city council, a body with delegated legislative power, has the power to create positions, adopt the Civil Service Commission classification plan, set the rate of pay and abolish positions.” (emphasis supplied)

City, acting well within the legislative delegation of power to set the rate of pay for positions in the police department, adopted rates which were not discriminatory as to any member of the grade or classification. Having acted legislatively, the trial court was not authorized to set aside such action.

The appellee’s argument, when stripped to its essentials, is that City did not have the power to repeal Ordinance 74-63 because it bestowed some inchoate rights upon appellee and the members of his class. We have noted earlier that the powers of home rule cities are limited only by their own charters, or by the constitution or by general law. Lower Colorado Riv. Auth. v. City of San Marcos, supra, 523 S.W.2d at 644.

The legislative power granted to cities, subject to the restrictions just noted, is analogous to such power granted to the legislature. In speaking thereof, Chief Justice Alexander in Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324, 328 (1946), held that the constitutional grant of legislative power to the House and Senate

“. . . means all legislative power— the power to make, alter and repeal laws — not expressly or impliedly forbidden by other provisions of the State and Federal Constitutions.”

So it is with home rule cities. Unless prohibited by some constitutional provisions, a general law, or its own charter, such home rule cities have the same unlimited power.

Appellee has cited no authority (statutory or otherwise) which would deny to a home rule city the right to reduce the salary of an employee when such can be done without discrimination; nor has appellee cited any authority which confers upon appellee and his class a vested right to receive periodic salary increases from the public treasury, nor have we found any such authority in our own research. We hold that Ordinance 74-65 is not contrary to or inconsistent with any constitutional provision, statute, or the charter provision of City; consequently, the trial court erred in declaring it to be invalid. It necessarily follows that the award of a monetary recovery to members of the class must be set aside and it is so ordered.

The judgment of the trial court is REVERSED and judgment is now rendered that appellee and his class recover nothing and receive no relief in his said suit and that the appellants go hence with their costs.

STEPHENSON, Justice

(dissenting).

I respectfully dissent. I would affirm the judgment of the trial court.

The only question in this case is whether the second city ordinance is in conflict with the statute referred to in the majority opinion which says that all persons in each classification shall be paid the same salary and, in addition thereto, be paid for seniority or longevity that he may be entitled to.

This city ordinance says that anyone with six months service as of October 1, 1974, is entitled to be paid $799 per month. However, another patrolman with six months service accruing October 2, 1974, or any time thereafter, would not be entitled to be paid $799 under the ordinance. Likewise, any patrolman with eighteen months service as of October 1,1974, would be paid $838 per month, while any patrolman accruing eighteen months service after October 1, 1974, could not draw the same pay.

I agree the city can pass, alter, and repeal its ordinances, but any ordinance regulating the pay of a policeman must not be in conflict with the statute mentioned above.

The City of Beaumont has full control over the salaries of its policemen as long as all patrolmen with the same classification are paid the same. Without a doubt the city could provide for longevity or seniority pay such as those patrolmen with six months or eighteen months service. But, to provide that one patrolman with six months service on October 1, 1974, will be paid one amount and another patrolman with six months service on October 2,1974, or thereafter, shall be paid a smaller amount, does not comply with the statutory requirement that those in the same classification be paid the same. This is also true of the patrolmen with eighteen months service.

The fact that there was an ordinance adopted October 1, 1974, in my opinion, has nothing to do with the outcome of this suit. I did not come to the conclusion set forth above because there might be a claim of “acquired vested right”. As stated above, the sole reason for this dissent is the conflict between the ordinance and the statute.

      . “The trial court erred in holding that Ordinance 74-65 was invalid as inconsistent with the letter and spirit of Section 8 of Article 1269m, Revised Civil Statutes of the State of Texas.”

      . “There shall be one hundred fifteen (115) positions in Grade I [in the Police Department], said positions to include patrolmen. The base pay of every officer in this grade shall be Seven Hundred Sixty and No/100 ($760.00) Dollars per month; and the base pay of every officer in this grade with more than six (6) months service but not more than eighteen (18) months service shall be Seven Hundred Ninety-Nine and No/100 ($799.00) Dollars per month; and the base pay of every officer in this grade with more than eighteen (18) months service shall be Eight Hundred Thirty-Eight and No/100 ($838.00) Dollars per month.”

      . The “freeze” was accomplished by changing the language quoted in footnote 2 to read: “. . . The base pay of every officer who has been in this grade less than six (6) months on October 1, 1974 shall be Seven Hundred Sixty and No/100 ($760.00) Dollars per month; and the base pay of every officer in this grade with more than six (6) months service but not more than eighteen (18) months service on October 1, 1974 shall be Seven Hundred Ninety-Nine and No/100 ($799.00) Dollars per month; and the base pay of every officer in this grade with more than eighteen (18) months service on October 1, 1974 shall be Eight Hundred Thirty-Eight and No/100 ($838.00) Dollars per month.”

      .The trial court’s judgment expresses the matter somewhat differently, finding that the quoted language “is contrary to the letter and in the opinion of this Court contrary to the spirit of Article 1269m, Section 8, of the Civil Statute[s] of the State of Texas . . .

      . Appellee argues: “Appellants . . . take s the position that appellants’ power to enact and/or repeal ordinances is unlimited. If Appellants’ position be correct then nothing would have prevented Appellants from repealing Ordinance 74-63 [October 1, 1974 which granted the periodic increases in salaries] at any time Appellants elected to do so whether it be two days after the passage of said Ordinances or at some subsequent time. Logically, if Appellants have full authority to enact and repeal ordinances at their discretion then nothing would prevent Appellants from repealing an Ordinance such as Ordinance 74-63 after Appellees had adjusted their living standards in reliance upon the increase of salary.”


author: JONES, Justice.

text:
    Raymond MAYFIELD, Appellant, v. COMMONWEALTH of Kentucky on relation of Margie R. PHELPS, Appellee.
    Supreme Court of Kentucky.
    Oct. 29, 1976.
    Rehearing Denied March 11, 1977.
    Joseph G. Glass, Louisville, for appellant.
    Walter J. Swyers, Jr., Louisville, for ap-pellee.
   JONES, Justice.

The question presented by this case is whether the trial court erred in refusing to render ineffective an agreement of paternity and support executed by Raymond May-field and Margie Phelps.

This appeal involves a judgment increasing child support payments for a child born out of wedlock to Margie Phelps.

In a paternity action in the juvenile court, Raymond and Margie entered into an agreement approved by the judge. Raymond acknowledged paternity of the child and agreed to pay $10.00 per week for its support. Margie agreed to “forbear continued proceedings . . . but in the event of defendant’s failure to fulfill the obligations of this agreed order, plaintiff retains the right to pursue a satisfactory remedy in this action.”

Margie sought to increase the award in juvenile court. The commissioner denied an increase on the basis there was no showing of changed circumstances.

Margie appealed to circuit court. The trial court ordered the award increased to $25.00 per week. From that judgment Raymond prosecutes this appeal.

Raymond contends that the agreed order of January 4, 1974 is a contract between the parties that is not subject to modification. He advances a novel argument that Margie’s effort to modify the child support provision breached the agreement. He contends that such breach requires the agreement be rendered ineffective. Raymond’s theory for such action is based on that part of the agreement where Margie agreed to “forbear continued proceedings” as long as he paid the $10.00 per week.

Raymond’s argument is unacceptable to this court. His theory of the case is not supported by the law. Furthermore, his contention that the formal adjudication of paternity be rendered ineffective is contrary to public policy. Raymond and Margie cannot by this agreement relinquish the rights of the child, who is not a party to the contract. In this jurisdiction, the law recognizes no distinction in the rights of children to support whether the child is legitimate of divorced parents or the illegitimate child of admitted parents. The father of a child born out of wedlock has the same duty of support as the father of a child born in wedlock. Raymond Mayfield is the admitted father of the child. He is subject to the duties in regard to her support imposed by KRS 406.011.

This court is of the opinion that the judgment should be and it is affirmed.

All concur.


author: RENDLEN, Judge. McMILLIAN, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Patrick MOTLEY, Defendant-Appellant.
    No. 37211.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 7, 1976.
    Motion for Rehearing or Transfer Denied Feb. 16, 1977.

      Newmark & Baris, Irl B. Baris, Kenneth H. Graeber, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Jefferson City, Robert M. Sommers, Asst. Attys. Gen., Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

John Patrick Motley appeals his convic-' tion on two counts for illegal sale of marijuana, a Schedule I Controlled Substance, under § 195.200 RSMo.1969, V.A.M.S. Having a prior controlled substance felony conviction, Motley received the minimum mandatory sentences provided in § 195.200, subsection 1(5), on each count, the sentences to run concurrently.

Defendant concedes the sufficiency of the evidence but challenges the constitutionality of pertinent portions of § 195.200. We have examined this contention and as hereinafter discussed, conclude jurisdiction lies in this court under Article V, Section 3, Missouri Constitution, 1945, as amended. Defendant’s specific allegations are: (1) the ten year minimum sentence provided by subdivision (5) of subsection 1, and subsection 4 prohibiting “parole, probation, suspended sentences or any other form of judicial clemency” usurp the judicial function in violation of Article II, Section 1 and Article V, Section 1 of the Missouri Constitution; and (2) the ten year sentence is excessive and disproportionate, constituting cruel and unusual punishment contrary to the mandate of Article I, Section 21 of the Missouri Constitution and the Eighth Amendment of the United States Constitution made applicable to the States by the Fourteenth Amendment.

Defendant first contends a court has inherent power to grant or deny a convicted offender probation on consideration of mitigating circumstances, citing State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), and to restrict this power by statute constitutes an impermissible legislative usurpation of the court’s prerogatives. In ruling this point it is important we consider the concepts of punishment, sentencing and probation in the broad sense as they relate to the legislative and judicial function.

In Missouri, fixing punishment for a crime defined by statute is the province of the legislature not the courts. State v. Alexander, 315 Mo. 199, 285 S.W. 984, 985[5] (1926); State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, 779[10] (1928); see eases cited, Missouri Digest under Constitutional Law, 70.1(10), pocket part 1976. The power to pardon is an executive power, Missouri Constitution, Article IV, Section 7.

The Missouri Supreme Court, discussing the concept of sentencing, has stated: “In its technical legal sense the sentence generally constitutes and has the same meaning as judgment or final judgment or determination against accused in a criminal case. Broadly, the term [sentence], in legal parlance, may be said to denote the action of a court of criminal jurisdiction, formally declaring to accused the legal consequences of the guilt which he has confessed or of which he has been convicted. . [A] sentence is not, strictly speaking, the act of the court but the judgment of the law which the court is commanded to pronounce.” State v. Pruitt, 169 S.W.2d 399, 400[1] (Mo.1943); see also McCulley v. State, 486 S.W.2d 419, 423[4] (Mo.1972). The court in Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087, 1091[11] (en banc 1923), examining the court’s role in the sentencing process stated: “[A] court’s powers in the administration of the criminal law is limited, upon the conviction of the accused, to the imposition of the sentence authorized to be imposed.”

As to the authority of a court to suspend sentence in the absence of an express statutory provision, it has been declared the trial court has no power to indefinitely suspend the sentence, for whatever reasons. Ex parte Bugg, 163 Mo.App. 44, 145 S.W. 831, 832[1] (1912); Ex parte Thornberry, supra, at 1090[8].

Trial courts are authorized in certain cases to suspend the imposition of sentence, or to parole or place defendants on probation, see § 549.061 RSMo., as amended Laws 1975, and § 549.071 RSMo., as amended Laws 1967, V.A.M.S., but this stems from statutory authorization and is not inherent to the judicial power. Cf. State ex rel. Douglas v. Buder, 485 S.W.2d 609, 610[1] (Mo. banc 1972) rev’d on other grounds 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Weber v. Mosley, 241 Mo.App. 727, 242 S.W.2d 273, 279[9, 10] (1951). An example of statutory proscription imposed by the legislature on the sentencing process appeared in § 556.280 RSMo.1949, the “second offender” act. Discussing the statute’s effect in the case of a defendant tried for first degree robbery as an habitual criminal, the court in State v. Hurtt, 509 S.W.2d 14, 18[6] (Mo.1974), stated: “. . . upon the jury’s finding that appellant had one prior conviction, [the court] had absolutely no discretion in sentencing appellant, but was required to impose a sentence of life imprisonment.” In Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916), these principles have been analyzed by the Supreme Court in terms of traditional concepts of separation of powers. There an accused entered a plea of guilty to a charge of embezzlement and was sentenced to five years imprisonment, the minimum mandatory punishment under the federal statute for that crime. The trial court mistakenly ordered that the sentence be suspended during the good behavior of the defendant. The Supreme Court by mandamus compelled vacation of that order as an excess of judicial authority, holding that such action by the trial court was a usurpation of the legislative power and if permitted “it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments, and hence leave no law to be enforced.” 242 U.S. at 42, 37 S.Ct. at 74. Our Supreme Court in Ex parte Thornberry, supra at 1090 — 91[11], favorably citing that decision, stated:

The reason for the rule is found in the nature of our systems of government, national and state. The power to grant reprieves and pardons and that to sentence for crime being distinct and different in their origin and nature, their exercise has been kept separate and distinct, the one having been confided to the executive and the other to the judicial department. The recognition of the power of a court to suspend a sentence indefinitely or to stay its execution would be to allow the judicial department to usurp the power and exercise one of the functions of the executive department. This is upon the well-grounded theory that a court's powers in the administration of the criminal law is limited, upon the conviction of the accused, to the imposition of the sentence authorized to be imposed.

Thus, the legislature by statutory enactment describes crimes and prescribes punishment and for a court to refuse imposition of prescribed penalties by the device of indefinite suspension of sentence or similar means, would constitute judicial usurpation of legislative power. It is clear that contrary to defendant’s contention there has been no usurpation of judicial authority here; indeed the opposite would occur if a court on conviction refused imposition or ordered indefinite suspension of sentence. Plaintiff’s Point I is without merit.

Defendant next contends the ten year concurrent sentences imposed by § 195.200 are so excessive and disproportionate to the offenses charged as to constitute cruel and unusual punishment violative of Article I, Section 21, Missouri Constitution and the Eighth and Fourteenth Amendments to the United States Constitution. As previously discussed, establishing the range of punishment for crimes is a legislative, not a judicial function, State v. Alexander, 315 Mo. 199, 285 S.W. 984 (1926), and a sentence when imposed within the limits provided by an otherwise constitutional statute, is not to be considered excessive. State v. Alexander, supra at 985[4]; State v. Grimm, 461 S.W.2d 746, 754[7] (Mo.1971). Stated somewhat differently, “ ‘The definition and punishment of crime in general is a legislative function upon which the courts may not encroach’ . . . and so long as constitutional limitations are not infringed, the will of the legislature in this respect is absolute.” State v. Stock, 463 S.W.2d 889, 895[8] (Mo.1971).

The Missouri Supreme Court in Stock, supra, and in State v. Burrow, 514 S.W.2d 585 (Mo.1974), considered contentions that the statutory inclusion of marijuana in the same schedule as narcotics, thereby subjecting one convicted for the sale of marijuana to penalties as harsh as those imposed for the sale of narcotics under § 195.200, is a violation of the due process and equal protection provisions of the Missouri and United States Constitutions. The court rejected these arguments for the reason that lack of rational basis for the classification had not been demonstrated. State v. Burrow, supra at 589-93; State v. Stock, supra at 895[7, 8]. Further the court in Stock stated: “All who sell marijuana are subject to the same punishment, and the legislature can, if it deems it advisable to control the unlawful traffic in marijuana, classify marijuana as it has done so.” See also State v. Golightly, 495 S.W.2d 746, 753[4-6] (Mo.App.1973), holding that sellers of marijuana may be punished with the same severity as sellers of heroin, cocaine, etc.

Defendant’s present contention that the sentence provided here by § 195.-200 constitutes cruel and unusual punishment must be examined against the established standards of constitutional construction declared by our Supreme Court. A punishment is not cruel and unusual because of its duration “unless [it is] so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” State v. Brownridge, 353 S.W.2d 715, 718 (Mo.1962); State v. Agee, 474 S.W.2d 817, 821-2[14] (Mo.1971). Because the classification of marijuana with the narcotics and hard drugs has been declared constitutionally valid, State v. Stock, supra, and State v. Burrow, supra, defendant’s argument carried to its logical end would require a finding here that the ten year sentence imposed by § 195.200, subsection 1(5) for the sale of all Schedule I and Schedule II controlled substances to be “so disproportionate . . . as to shock the moral sense of all reasonable men.” This we are unable to do; and accordingly, the concurrent ten year sentences here imposed withstand the charge of constitutional infirmity. See State v. Vermillion, 486 S.W.2d 437, 441[9] (Mo.1972).

Having found that the case involves application of established constitutional principles and not the construction of either the state or federal constitution, jurisdiction of the appeal is in this court and not the Missouri Supreme Court as the parties have suggested. See City of Florissant v. Rouillard, 495 S.W.2d 418, 420[3] (Mo.1973).

The judgment is affirmed.

WEIER, P. J., concurs.

McMILLIAN, J., dissents in a separate opinion.

McMILLIAN, Judge,

dissenting.

I dissent from the majority opinion because I believe that statutorily mandated sentences to the extent that they deny the court the right to exercise its discretion to suspend either the imposition or execution of a sentence constitutes an intolerable usurpation of an inherent power of the court to grant probation.

My initial disagreement with the majority opinion was on the issue of jurisdiction. The case should be within the exclusive appellate jurisdiction of the Missouri Supreme Court as one involving the “construction of the Constitution of the United States or of this state,” Mo.Const. Art. V, § 3. As reflected by the majority opinion, the precise constitutional question involved has not been previously resolved in Missouri. In addition, as discussed below, I feel that the issue involved here is not one to be resolved by application of the well-established principle that the legislature fixes the limits of punishment. Appellant’s attack on the statute is that it is unconstitutional under any interpretation rather than that a particular interpretation of the statute might render it unconstitutional. An attack framed in this fashion requires a decision by the State Supreme Court, Rose v. State Board of Registration for Healing Arts, 397 S.W.2d 570, 571 (Mo.1965); State v. Brookshire, 325 S.W.2d 497, 501 (Mo.1959); Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, 250 (1952); State v. Hatton, 240 Mo.App. 1244, 228 S.W.2d 10, 12 (1950). I, therefore, agree with the statements in the briefs of both appellant and respondent that jurisdiction in this case should be vested in the Supreme Court rather than this court.

Because the majority opinion considers the merits of appellant’s attack on the statute, my dissent on the substantive issues involved is necessary.

The constitutionality of mandatory sentences excluding the possibility of probation has not been decided in Missouri. The decisions in Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916) and Ex Parte Thornberry, 300 Mo. 661, 254 S.W. 1087 (banc 1923), relied upon by the majority, dealt with the power of a court to indefinitely suspend the execution of sentence. In Ex Parte United States, the sentence was suspended during the good behavior of the defendant. In Ex Parte Thornberry, the trial court advised defendant that he could avoid punishment if he left the area immediately. The asserted powers in those cases to indefinitely suspend the execution of sentence seems quite different from the action of a trial court in utilizing probation on definite terms for a definite period as part of the sentence imposed in appropriate circumstances. To indefinitely suspend a sentence is a repudiation of the authority of the legislature to define crimes. To grant probation is to apply the legislature’s policy choice to punish a particular type of conduct but to do so in the manner most conducive to justice in the specific circumstances. The majority’s analogy of the mandatory sentence statute to the Second Offender Act is also not persuasive since judicial parole is not precluded by that statute, Crow v. State, 492 S.W.2d 40, 46-7 (Mo.App.1973). Finally, the majority’s statement of the general rule that it is a legislative function to define the parameters of punishment for a crime does not clearly foreclose the issue of a court’s responsibility to individualize that punishment within those parameters.

The Missouri Constitution guarantees the division of both the specifically enumerated and inherent powers of government into three distinct branches, Art. II, § 1. Compliance with this constitutional provision requires that the judiciary not encroach on the functions of the legislative or executive branches. The corollary of that principle, that the judiciary must guard against encroachment on its own power, has, however, all too often been overlooked because of the conservatism of the state’s judiciary. The majority opinion represents but one further example of this attitude.

Even though mandatory sentences are intended to emphasize the harshly deterrent aspects of punishment rather than the rehabilitative, it seems that some flexibility must be retained in the system. A legal system that cannot react at all to the wide range of circumstances surrounding a particular defendant’s involvement with drugs must engender disrespect. Widespread disrespect for the drug laws has been noted as a principal problem in the enforcement of such laws, Eisberg, “Missouri Needs Marijuana Reform,” 32 Jrnl.Mo.Bar 168, 173 (1976). A sentencing system precluding judicial discretion can also become self-defeating.

There are several additional reasons why the mandatory minimum is a naive and destructive provision. As noted, the definition of offenses if of necessity in general terms, and the varying circumstances in which an offense can occur will to a certainty lead to cases where all would agree that a long period of confinement is unwarranted. Both judges and prosecuting officials recognize such cases when they arise, and are immediately put in a most awkward position. They may either enforce the letter of the law and perpetrate a clear injustice, or they may ignore the law and defeat the apparent intent of the legislature. Both results are destructive of the very public confidence in the system which is sought by the mandatory minimum term.

The process or nullification which comes about by judicial nonenforcement of mandatory provisions also illustrates another point which is often ignored in the heat of the moment which produces such legislation. It is frequently stated by the proponents of mandatory minima that such devices are needed to prevent “soft” judges from being lenient toward dangerous offenders and to provide a sureness of punishment that will act as the great deterrent. But the fact remains — whether the judge is right or whether he is wrong — that the judge has numerous discretionary means by which he can, and by which judges do, defeat the intent of such legislation. The intention to hamstring “soft” judges thus may boomerang to result in more lenient treatment — perhaps even acquittal — than even the judges themselves would desire. The search for an alternative to the offense which carries the harsh minimum may not always produce an offense which provides an appropriate disposition. The effect on the system, in any event, is that it becomes unmistakably truncated and artificial. ABA Standards, Sentencing Alternatives and Procedures, § 3.2(b), Comments, pp. 149-50 (1968). Juries, of course, might adopt a similar attitude of nullification as a response to the harsh nature of the sentencing system. The end result is that the statute rather than eliminating discretionary elements simply shifts the exercise of discretion to points in the judicial system where the activities of the prosecutor, judge and jury cannot be effectively monitored.

Another curious feature of this mandatory sentence statute is the fact that it only precludes judicial clemency. A defendant can still receive an executive pardon or be paroled by the Board of Probation and Parole on the very first day of his sentence. The statute can thus only be read as a direct insult to the competency of trial judges.

It is the recognition of such difficulties and inconsistencies that has prompted repeated criticism and rejection of mandatory sentence provisions, see ABA Standards, Sentencing Alternatives and Procedures, § 2.3(a) (1968), Model Penal Code, § 6.02 (1962), Missouri Proposed Criminal Code, § 2.010 (1973).

The United States Supreme Court recently expressed its disapproval of mandatory sentence statutes in Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).

The flexibility recognized as essential to any rational sentencing system seems best administered by the judiciary because it is that branch that has first-hand knowledge of the particular circumstances of a specific case. The inherent powers of the judiciary have been defined in a functionally-oriented manner in past Missouri cases, see e. g., State v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183 (1943); Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 981 (1937). Such a pragmatic approach to the division of governmental powers should continue and should lead to the characterization of the granting of probation as an inherent power of the judiciary. Once it is determined that the facts of the case dictate incarceration the mandatory sentence statute may become applicable but an initial determination of the appropriateness of incarceration must be required. In conclusion, I share the view of the Supreme Court of Idaho as expressed in State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), a case holding mandatory sentences unconstitutional as a usurpation of judicial power:

“Our system of laws, indeed, hopefully our civilization, has undergone a persevering evolution toward enlightenment. A judge is more than just a finder of fact or an executioner of the inexorable rule of law. Ideally, he is also the keeper of the conscience of the law.” (Id. at 251)

I must also express my fervent disagreement with the result reached by the majority on the issue of cruel and unusual punishment. A sentence of ten years imprisonment for the second sale of a small quantity of marijuana is incredibly disproportionate to the conduct for which it is being punished. As noted by the appellant in his brief, for example, many violent crimes are punished much less severely in Missouri, see also H. Eisberg, “Missouri Needs Marijuana Reform,” supra. My disagreement on this issue, however, extends only to the result and not to the majority’s reasoning as to the legally logical, if philosophically unconscionable, consequence of the decision in State v. Burrow, 514 S.W.2d 585 (Mo.1974); cf., State v. Rao, No. 19961, Superior Ct. Conn. (1976); People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972); People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971).

Because I believe our court lacks jurisdiction in this matter, I would certify this cause to the Missouri Supreme court.

      . Unless otherwise indicated, all statutory citations are to RSMo.1969, V.A.M.S.

      . Section 195.200, subsection 1, subdivision (5) provides imprisonment for a term of not less than ten years nor more than life imprisonment “for the offense of selling . . any controlled substance listed in Schedule I or II [which include marijuana as well as listed opium derivatives] ... if the offender has previously been convicted of any felony violation of the laws of this state . . . relating to controlled substances . . .” Subsection 4 provides: “No parole, probation, suspended sentences or any other form of judicial clemency may be exercised in behalf of any person punished under subdivision (5) of subsection 1.”

      . This is not to say the court does not have any power to exercise its discretion in the matter of suspending sentence. It is clear that a court has inherent power to exercise its discretion in suspending a sentence a reasonable time for a proper purpose and this purpose is usually construed under Missouri practice, in the absence of any statute on the subject, “to granting time to file a motion for a new trial or in arrest of judgment, to secure bail, or to perfect or pending an appeal.” Ex parte Thornberry, supra at 1090[7j.

      . Certain portions of the statute have since been changed. See § 556.280 RSMo., as amended Laws 1959, V.A.M.S.