author: EVANS, Justice.

text:
    Dorothy R. STAEHLING, Appellant, v. Lillian Hazel SCHNEIDER, Appellee.
    No. 16764.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    Dec. 23, 1976.
    Rehearing Denied Jan. 20, 1977.
    Percy Foreman, Levert J. Able, Tom F. Coleman, Jr., Houston, for appellant.
    Childress, Port & Crady, Charles C. Cra-dy, III, Gail Borden Tennant, Jr., Houston, for appellee.
   EVANS, Justice.

The primary question in this case is whether the repeal of Section 30 of the Texas Probate Code, which authorized writ of certiorari review in the district court of probate proceedings, resulted in a loss of the district court’s jurisdiction over a writ of certiorari which had already been perfected and which was pending in the district court at the time the statute was repealed.

The appeal by writ of certiorari was perfected in the district court in August 1973. Section 30 of the Texas Probate Code was repealed effective June 21,1975. On March 30, 1976, appellee filed a plea to the jurisdiction of the district court which it sustained. This appeal is from the district court’s order dismissing the cause for want of jurisdiction.

In Gulf Oil Corporation v. Outlaw, 136 Tex. 281, 150 S.W.2d 777 (1941), notice of appeal from a final judgment entered July 14, 1938, had been given but had not been perfected. A writ of error was subsequently perfected in the court of civil appeals on March 17, 1939. Subsequently, a repealing statute (Article 2249a, Vernon’s Ann.Civ. St., effective January 1, 1940) provided that a party who had participated in person or through his attorney in the trial of the case was no longer entitled to review by the court of civil appeals through the means of writ of error. The court of civil appeals thereafter rendered its judgment in the case on January 18, 1940, and on rehearing a motion was made to dismiss the appeal for want of jurisdiction. The court of civil appeals denied the motion to dismiss, holding that the right of appeal was constitutionally guaranteed and could not be denied by the legislature. (137 S.W.2d 787, Tex. Civ.App. — El Paso, 1940). The Texas Commission of Appeals reversed the decision of the court of civil appeals on other grounds, but held that the jurisdictional ruling of the appellate court was correct. On this point Commissioner German stated:

“After mature consideration it is announced as the conclusion of the Court that the Act mentioned was not intended to apply to causes where appeal by writ of error was fully perfected prior to the effective date of same, to wit, January 2, 1940. In this instance appeal had been perfected in the Court of Civil Appeals before the Act was ever passed by the legislature. While not approving the reasoning of the Court of Civil Appeals upon this question, its judgment in this respect is sustained.” 136 Tex. 281, 150 S.W.2d at 778.

In Atkins v. Rayburn, 506 S.W. 2d 208 (Tex.1974), a mandamus action was brought to compel the district court to dismiss five probate court appeals on the ground that the amendment of Section 8 of Article V of the Texas Constitution, and Section 5 of the Probate Code effective November 6, 1973, lodged jurisdiction of appeals from probate proceedings in the courts of civil appeals and thus deprived the district court of jurisdiction. The Texas Supreme Court, citing Gulf Oil Corp. v. Outlaw, supra, held that since all of the appeals had been perfected prior to the effective date of the amendment, the jurisdiction of the district court was not affected by the amendment.

In a recent case involving a situation practically identical with that before this court, the Corpus Christi Court of Civil Appeals held that the repeal of Section 30 of the Texas Probate Code did not deprive the district court of jurisdiction over a perfected appeal by writ of certiorari. Cluck v. Ballenger, 543 S.W.2d 159 (1 Texas Court Reports 992, October 21, 1976, no writ). As in the case before this court, an appeal by writ of certiorari had been perfected to the district court prior to the effective date of the repeal of Section 30, Texas Probate Code. The district court denied the plea to the jurisdiction and proceeded to trial. Affirming the district court’s judgment, the court of civil appeals through Justice Bis-sett stated:

“This case is controlled by the rule of Atkins v. Rayburn, 506 S.W.2d 208 (Tex. 1974) . . . The appeal by certiorari proceedings had been perfected by the appellees prior to the effective date of the repeal of Tex.Prob.Code Ann., § 30; therefore, the certiorari proceedings were not affected by the appeal Any other holding would put this Court in conflict with the holding of the Supreme Court in Atkins v. Rayburn, supra.

Generally, where a right of action or a remedy is derived from a statute which is subsequently repealed, and the repealing statute contains no savings clause in favor of pending suits, the right of action or remedy is lost unless relief has been granted before the effective date of the repeal. For example, the repeal of a statute authorizing the right to proceed against parents for the wilful torts of their children was held to abolish the right. Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280 (Tex.Civ.App.— Corpus Christi 1975, writ ref. n. r. e.). Similarly, the repeal of a law authorizing a bondholder’s suit was held to abate such a suit which had not been reduced to final judgment. Dickson v. Navarro County Levee Imp. Dist. No. 3, 135 Tex. 95, 139 S.W.2d 257 (1940). It has also been held that the repeal of a statute authorizing an appeal from an order granting a new trial destroys that remedy. Texas Farm Bureau Ass’n v. Lennox, 296 S.W. 325 (Tex.Civ.App. —Texarkana 1927, no writ).

Where, however, the right of appeal has become perfected upon performance of the specified statutory requirements, the court of review retains jurisdiction over the appeal unless the repealing statute indicates a contrary legislative intent. Atkins v. Rayburn, supra. This court recognizes that there is a distinction between an ordinary appeal and an appeal by certiorari. Cluck v. Hester, 521 S.W.2d 845 (Tex.1975). However, in either situation, the district court retains jurisdiction over an appeal which has been perfected prior to the effective date of the repealing statute. Cluck v. Ballenger, supra; Gulf Oil Corp. v. Outlaw, supra.

The district court’s order of dismissal recites that a bill of review is pending and unresolved in the probate court, but as ap-pellee correctly points out in her brief, the dismissal order was obviously based upon the lower court’s determination that it had lost jurisdiction because of the repeal of Section 30, Texas Probate Code. The pend-ency of the bill of review did not affect the district court’s jurisdiction over the writ of certiorari, and it, thus, becomes unnecessary to further consider appellant’s point on that question.

The judgment of the district court dismissing the writ of certiorari for want of jurisdiction is reversed and the cause is remanded for further proceedings.

COLEMAN, C. J., not participating.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice. WALTER, Justice

license: Public Domain

text:
    HIGHLAND PARK, INC., Appellant, v. Ruth PARKER, Appellee.
    No. 4926.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 30, 1976.
    Rehearing Denied Jan. 20, 1977.
    John H. McBryde, McBryde, Bogle & Green, Fort Worth, for appellant.
    C. Coit Mock, Fort Worth, for appellee.
   RALEIGH BROWN, Justice.

This personal injury case involves the duty of an occupier of premises to an invitee. Ruth Parker sought damages for personal injuries sustained when she fell while descending a flight of stairs on premises owned by Highland Park, Inc. After a jury trial, judgment awarding $17,123 to Mrs. Parker was entered. Highland Park appeals. We reverse and render.

Appellant operated an apartment complex. The lighting for the stairways and general lighting around the complex was controlled by a mechanical timer which would turn on and off the lighting at a pre-set time.

On the afternoon of the fall, Mrs. Parker arrived at the apartment complex while it was still daylight and went upstairs to her host’s apartment. After dinner when her host and hostess started to go down the regularly used stairs to take Mrs. Parker home, they discovered that the stairway was dark because the lights had not come on. Mrs. Parker’s hostess was asked:

“Q Would you describe the condition of darkness or of light or lack of light that you were confronted with when you came out that kitchen door?
A Well, just as dark as dark can be.”
“Q Okay. Do you have any idea, based on what you saw at the time or what you’ve since seen or on what you’ve heard as to what caused Mrs. Parker to fall?
A The darkness.
Q Do you know of anything else or have any idea about anything else that could have contributed to cause her to fall?
A Not that I know of. It was just dark. I would never go down stairs in darkness like that.”
“Q Had you ever gone down that stairway before in the darkness?
A No, sir, and I never would have.”

Her host testified:

“Q And then you walked out in the hallway and that’s when you perceived that the lights were not on?
A We perceived that the minute whoever opened the door first. If I was in position in the kitchen I saw they were off. I mean the fact it was dark would not be concealed from anybody if you opened the door.”
Q What was the condition of the lightness or darkness at the time this happened?
A At the time Mrs. Parker fell?
Q Yes.
A It was — Well, outside it was pitch-dark, I know, because at the time she fell I had gone to hold the door open in case it wasn’t pitch-dark and we would have some light. It was also pitch-dark in the stairwell. No light in the stairwell was burning.”
Mrs. Parker testified:
“Q And was the stairway dark?
A Yes, it was.
Q Will you describe the darkness for us, please, ma’m?
A Well, it was just very dark. I don’t know how to describe it outside of that.”

Prior to attempting to descend the stairway, Mrs. Parker waited at the head of the stairs while her host went down the stairs and opened the door into the courtyard in an attempt to get additional lighting from the outside and her hostess went back into the apartment for a flashlight. With the aid of the flashlight, the two ladies descended to the first landing of the stairway. This landing was flat and made an approximate ninety degree turn to the right. The first portion of the landing was separated from the second portion by one step of approximately ten inches in height. The second portion was also flat and lined up with the bottom half of the stairway. The flashlight held by Mrs. Parker’s hostess did not completely illuminate the area around the turn made in the stairway because of intervening posts which supported a hand railing. Mrs. Parker fell as she stepped from the first portion to the second portion of the landing.

The jury found (1) that the stairs were not properly lighted; (2) which caused them to become unusually dangerous; (3) that Highland Park’s failure to properly light was negligence; and (4) that such failure was a proximate cause of Mrs. Parker’s injury. The jury absolved Mrs. Parker of negligence in undertaking to descend the stairs and in the manner in which she descended the stairs. The jury did find that Mrs. Parker received a warning to be careful, or words to that effect as she proceeded or before she proceeded down the stairs and before she fell.

Highland Park moved the court to render judgment non obstante veredicto because the evidence proved conclusively and as a matter of law (1) that the condition of the stairs was so open and obvious that Ruth Parker was charged in law with knowledge and appreciation of whatever danger existed in descending the stairs; (2) that Ruth Parker knew and appreciated whatever danger existed; and (3) that Ruth Parker was warned to be careful as or before she proceeded down the stairs.

Since Highland Park has not filed a motion for new trial, this court is confined in its review to determine whether the trial court erroneously denied the motion for judgment non obstante veredicto. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). Rule 301, T.R.C.P., provides that a motion for judgment non obstante veredicto may be rendered by the court if a directed verdict would have been proper.

Appellant argues the condition of the stairway was so open and obvious that anyone would have known and appreciated the inherent dangers of descending it, thus appellant owed appellee no duty with respect to the darkened condition of the stairway.

The court in Abalos v. Oil Development Company of Texas, Tex., 644 S.W.2d 627 (1976) said:

“As this court said in Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970), any plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish tort liability . . . ”

The court in Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972), explained the burden an injured plaintiff must meet in order to impose a duty on a defendant in this type of case:

“We have set forth in the margin some, but not all, of the basic issues for a conventional occupier-invitee case. Under such issues, it would be Mrs. Sharpe’s burden at trial to prove the existence and violation of a legal duty owed to her by Adam Dante. Coleman v. Hudson Gas and Oil Corp., 455 S.W.2d 701 (Tex.1970). That includes her burden to prove that she did not possess actual knowledge of the danger, that she did not fully appreciate the nature and extent of the danger, and that the danger complained of was not so open and obvious as to charge her, as a matter of law, with such knowledge and appreciation ...”

In George v. City of Fort Worth, 434 S.W.2d 903 (Tex.Civ.App. Fort Worth 1968, writ ref. n.r.e.), a case factually similar to the instant case, the plaintiff sought to recover damages for personal injuries sustained when she fell down the steps at Will Rogers Coliseum. The court, affirming a summary judgment for defendant, said:

“Further reason for affirmance is found in Murphy v. City of Beaumont, 420 S.W.2d 459 (Tex.Civ.App., 1967, ref., n.r.e.), a case remarkably similar factually to the instant case, and Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963), wherein the court held: ‘ * * * if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them “no duty” to warn or to protect the invitees. This is so, the cases say, because there is “no duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.’
That the stairway was not lighted was a fact ‘so open and obvious’ to plaintiff that we hold she was charged as a matter of law with knowledge and appreciation of the danger of ‘beating’ the crowd by entering and descending the unlighted stairway. McKee, General Contractor, Inc., v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954); Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.Sup.1967); Lowe Chemical Co. v. Greenwood, 433 S.W.2d 695 (Tex.Sup.1968); Wesson v. Gillespie, 382 S.W.2d 921 (Tex.Sup.1964).”

See also: Murphy v. City of Beaumont, 420 S.W.2d 459 (Tex.Civ.App. — Beaumont 1967, writ ref. n.r.e.).

We hold the condition was so open and obvious as to charge Mrs. Parker, as a matter of law, with knowledge and appreciation of the danger of descending the darkened stairs. She .therefore failed to discharge her burden of proving the existence and violation of a legal duty owed to her by Highland Park.

Justice Pope in a concurring opinion in Abalos, stated the “no duty” concept either had been or should be abolished. We conclude, however, from the majority opinion by Chief Justice Greenhill, and our examination of other recent opinions by our Supreme Court, “no duty” as opposed to “volenti” in occupier-invitee cases has not been abolished as of this date. As an intermediate appellate court, we must follow what we believe the present law to be as announced by our Supreme Court. We, therefore, disagree with the contention of Mrs. Parker that the “no duty” concept has been abolished in occupier-invitee cases and must hold accordingly.

It is unnecessary to consider the other points of error presented. The judgment is reversed and rendered that plaintiff take nothing.

WALTER, Justice

(dissenting).

I respectfully dissent.

The majority opinion has sustained Highland Park’s point that:

“The evidence proved conclusively and as a matter of law that the condition of the stairs was so open and obvious that Ruth Parker was charged in law with knowledge and appreciation of whatever danger existed in descending the stairs on the occasion in question.”

It is difficult for me to comprehend how “the condition of the stairs” could be found as a matter of law to be open and obvious at a time when the evidence shows Mrs. Parker was having difficulty seeing them.

In Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975), the court said:

“We do not agree. Whether a condition constitutes a danger is a function of reasonableness. That is, if the ordinarily prudent man could foresee that harm was a likely result of a condition, then it is a danger, 2 F. Harper & F. James, The Law of Torts § 27.1 at 1431 (1956); W. Pros-ser, The Law of Torts § 61, at 385 (4th ed. 1971) ...”

In my opinion, the record does not warrant the holding that Mrs. Parker was charged with knowledge and appreciation of the danger as a matter of law.

The majority opinion notes that Highland Park did not file a motion for new trial. In its motion for judgment, Highland Park contended judgment should be rendered in its favor because of the finding of the jury that Ruth Parker had been warned to be careful.

No notice or warning was given by appellant. There is evidence in the record that Mrs. Massey said: “Ruth, be careful.”

In Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940), the court said:

“The terms ‘ultimate issues,’ ‘ultimate facts,’ ‘essential facts,’ ‘essential issues,’ and ‘controlling issues’ are frequently used synonymously. An ultimate fact is one essential to the right of action or matter of defense. If an ultimate fact is involved in a case, which is essential to the claim or defense, and is necessary to form the basis of a judgment, it is the duty of the court to submit such issue for determination by the jury. On the other hand, it is not necessary to submit a special issue where it does not call for the determination of some ultimate fact necessary to form the basis of a judgment, as where it relates to subordinate facts to be considered in determining ultimate facts, and necessarily embraced in the determination of the ultimate fact issue. In other words, only controlling issues should be submitted.”

The appellant is not entitled to judgment on this finding of an evidentiary matter which does not constitute an ultimate issue.

In my opinion, the judgment of the trial court should be affirmed.


author: HALL, Justice.

text:
    COCA-COLA BOTTLING COMPANY OF PLAINVIEW, Appellant, v. N. C. WHITE, Jr., Individually, and as next friend of Shelly White, a minor, appellee.
    No. 5661.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1976.
    Rehearing Denied Jan. 20, 1977.

      Aldridge, Harding & Aycock, Farwell, Crenshaw, Dupree & Milam, Lubbock, for appellant.
    John M. Black, Friona, for appellee.
   HALL, Justice.

N. C. White, Jr., brought this suit individually and on behalf of his minor daughter, Shelly, for damages they allegedly suffered because Shelly drank a beverage bottled by appellant, Coca-Cola Bottling Company of Plainview, which contained the remains of a mouse. Trial was to a jury which answered all special issues in favor of appellee’s contentions. Among other findings, the jury found in answers to issues numbered as follows that (2) Shelly suffered illness proximately caused by the contaminated drink; (5) $2,500 would fairly and reasonably compensate Shelly for past pain, suffering and mental anguish; and (6) $200 would fairly and reasonably compensate Mr. White for reasonable and necessary expenses for doctor’s care and medicines and transportation provided by him, in treatment of Shelly’s illness. Judgment was rendered in favor of appellee on the verdict for these amounts.

In its first five points of error, appellant contends the evidence is factually insufficient to support the jury’s answers to issues 2 and 5; and that the evidence is legally insufficient, or, alternatively, factually insufficient to support the answer to issue 6. Particularly, appellant asserts insufficiency of the evidence on these issues because there is no expert medical proof that Shelly’s illness resulted from drinking the contaminated beverage, and no medical proof that the expenses incurred by Mr. White were reasonable and necessary.

The material facts are virtually undisputed in the record. Briefly stated, they show that Shelly drank a part of the beverage in question on the afternoon of July 30, 1974. At that time she was a healthy, active, nine year old child. The beverage “tasted terrible” to her, and she asked an adult friend nearby to look at it. It was discovered the drink contained discernible parts of the head, front legs, body, and tail of a mouse. Shelly became upset and began crying. She refused supper that evening. She was ill all that night with spells of stomach cramps, vomiting and nightmares. The next day (and three times thereafter) she was taken to the doctor as a result of this illness. From then until March, 1975, she suffered stomachaches, nervousness, weight loss, and listlessness as a result of this experience. On one occasion at school, when the children were singing a song about a mouse, she became ill and fainted. On many occasions during this time, Shelly’s parents were required to take her home from school because she was ill with stomach cramps.

The testimony of Shelly’s resulting illness came from her and her parents, and there was no expert medical proof these ailments were caused by drinking the contaminated beverage. However, expert medical proof as to the cause of an injury is not necessary in cases, like this one, where the injury can be reasonably anticipated by the general experience or common sense of men as a probable result of the asserted event of causation. Griffin v. Texas Employers’ Insurance Association, 450 S.W.2d 59, 61 (Tex.Supp.1970); Coca-Cola Bottling Co. Of Fort Worth v. McAlister, 256 S.W.2d 654, 656 (Tex.Civ.App. — Fort Worth 1953, no writ hist.); 17 Tex.Jur.2d 308, Damages, § 248.

A review of the entire record convinces us the jury’s answers to special issues 2 and 5 are not against the great weight and preponderance of the evidence.

There is proof Mr. White necessarily incurred reasonable transportation expenses totaling $96.00 as a result of Shelly’s illness. However, there is not proof the medical bills for which he seeks reimbursement were necessarily incurred for the treatment of her illness. Accordingly, the jury’s award of damages to him in answer to special issue 6 is excessive by $104.00.

Appellant assigns error to the court’s failure to include the element of “new and independent cause” in the definition of proximate cause in the charge to the jury. Appellee says this defense is not raised by the proof, but we need not decide this question. The court was not required to include new and independent cause in the charge for two reasons. First, this is a defense required to be affirmatively pleaded under the provisions of Rule 94, Vernon’s Tex.Rules Civ.Proc. Appellant did not plead it. Second, appellant objected to the definition of proximate cause because of the omission, but it did not tender a substantially correct definition of “new and independent cause” for inclusion in the charge. The complaint was therefore waived under the terms of Rule 279, Vernon’s Tex.Rules Civ.Proc. McDonald v. Williamson, 393 S.W.2d 328, 329 (Tex.Civ. App. — Waco 1965, no writ hist.); Querner v. De Spain, 339 S.W.2d 723, 725 (Tex.Civ.App. —San Antonio 1960, writ ref’d n.r.e.); Western Union Telegraph Co. v. Hinson, 222 S.W.2d 636, 640 (Tex.Civ.App. — Amarillo 1949, writ ref’d n.r.e.).

Appellant’s remaining contentions are without merit. They are overruled.

The judgment is modified to provide that Mr. White shall recover $96.00, rather than $200.00, for his expenses. As so modified, the judgment is affirmed.


author: BISSETT, Justice.

text:
    Alfredo SERNA and Juan D. Sandoval, Jr., Appellants, v. Abraham ENRIQUEZ and V. (Bene) Figueroa, Jr., Appellees.
    No. 1153.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.

      Gerald H. Beckman, Huerta, Pena, Beck-man, Rodriguez & Alfaro, Corpus Christi, for appellants.
    Frank W. Nesbitt, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is an election contest. Alfredo Ser-na and Juan D. Sandoval, Jr. filed an election contest on May 3, 1976, wherein they sought to be declared “the winners” in the election which was held by the Robstown Independent School District on April 3,1976 to elect trustees for places 6 and 7 on the school board. Trial, which began on June 3, 1976, was to the court without a jury. Judgment was rendered on June 4, 1976 that Serna and Sandoval take nothing by their “election contest”. Serna and Sandoval have appealed.

The contestants alleged, in substance, that: 1) the candidates for place 6 were Sandoval and V. (Bene) Figueroa, and the candidates for place 7 were Serna and Abraham Enriquez; 2) a total of 4,392 votes were cast in the election for place 6, with Figueroa receiving 2,338 votes and Sandoval receiving 2,054 votes; 3) a total of 4,292 votes were cast in the election for place 7, with Enriquez receiving 2,286 votes and Serna receiving 2,006 votes; 4) pursuant to the canvass of the results of the election by the school board on April 20,1976, Figueroa was found to have won the election for place 6 by 284 votes and Enriquez was found to have won the election for place 7 by 280 votes; 5) 551 of the 612 absentee votes in the election were illegally cast, should be disregarded and the election results determined without counting them.

The contestants concluded:

“When the invalid returns are tabulated without the invalid absentee votes, Contestants will be shown with certainty to have won the election.”

The contestants’ sole contention on appeal is that the trial court erred in not disregarding improperly east votes in the school board election contest since such was required by mandatory provisions of the Texas Election Code. The contention cannot be sustained.

It was stipulated by the parties: 1) the absentee ballots totalled 612 votes, with 20 votes being east by mail and 592 votes cast by personal appearance of the voters who voted by use of voting machines; 2) the 20 “mail-in” absentee votes are not contested; 3) the clerk for absentee voting permitted 551 of the persons who voted absentee by personal appearance to cast their ballots upon an informal oral application and not upon a written application; 4) about 1:00 o’clock p. m. on the last day for absentee voting, the clerk, following a suggestion that she should require written applications for all persons who applied to vote absentee by personal appearance, required the remaining voters (41) who presented themselves for voting by absentee ballot to sign a written application therefor; 5) those 41 votes are not challenged in this election contest; 6) the 551 votes of those who voted absentee without signing a written application were counted; 7) mathematically, had the 551 votes not been counted, the contestants would have won the election for places 6 and 7, respectively.

Tex. Election Code Ann. art. 5.05 was amended by the legislature in 1975, effective September 1, 1975. Subdivision 1(b) thereof provides that absentee voting may be conducted by: 1) voting by personal appearance, and 2) voting by mail. When the voting is by mail, the requirements are mandatory since the legislature expressly provided that “the ballot shall not be counted” in all situations where there was a violation of Subdivision 1(c), (i), (ii), (iii) or (iv) thereof. That is not the case where the voter votes absentee by personal appearance.

Subdivision 2(a) of Tex. Election Code Ann. § 5.05 (Supp.1976), as amended in 1975, provides:

“a) A voter desiring to vote absentee shall make written application for an official ballot to the county clerk of the county of his residence, which application shall be signed by the voter, or by a witness at the direction of the voter if for any reason the voter is unable to sign his name. The application shall state the ground on which the applicant is entitled to vote absentee, and in case of an application by mail, it shall also state the additional information required by Subdivision 1 of this section.”

The question to be decided in this appeal is whether Subdivision 2(a) of art. 5.05 of the Election Code made it mandatory to void and not count the 551 absentee votes, all of which were cast without first making a written application. We answer that question in the negative.

In deciding whether a statute is mandatory or not, the legislative intent is determined from a consideration of the entire act, its nature, its object, and the consequences that follow from the construction thereof. Nichols v. Aldine Independent School District, 356 S.W.2d 182 (Tex.Civ. App. — Houston 1962, no writ); State v. Fox, 133 S.W.2d 987 (Tex.Civ.App. — Austin 1939, writ ref’d). “There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory . . although the word ‘shall’ is generally construed to be mandatory, it may be and frequently is held to be directory.” Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 (1956).

“The general rule is that the performance of duties placed upon the election officials is directory unless made mandatory by statute, . . . .” Fuentes v. Howard, 423 S.W.2d 420 (Tex.Civ.App. — El Paso 1967, writ dism’d); City of Roma v. Gonzalez, 397 S.W.2d 943 (Tex.Civ.App. — San Antonio 1965, writ ref. n. r. e.).

The voiding of ballots cast in an election already declared, particularly in the absence of an allegation of fraud or a showing that such elector could not have qualified to vote, is a harsh remedy and should be used sparingly. There is neither pleading nor proof of fraud in this case, nor is there any evidence that any elector was not qualified to vote in the election. Our Supreme Court, in Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625 (1948), held that the mere mention of the word “shall” in an election statute does not make that statute mandatory so as to defeat the expressed will of the people. The Court, in justifying that holding, said:

“[TJhat construction is justified by sound authority. The right to vote is so fundamental in our form of government that it should be as zealously safeguarded as are our natural rights. It has been said that ‘laws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits.’ It is sufficient, however, that we apply here the less extreme and well established rule of construction that statutes regulating the right to vote should be given a liberal interpretation in favor of that right.”
“[T]he amended article therefore should be construed as not intending to deprive the elector of his right to vote for failure to procure the renewed or reissued certificate, especially when nowhere in the amendment is it said that such failure shall incur as a penalty the loss of the right to vote.”

Subdivision 2(a) of Tex. Election Code Ann. art. 5.05 does not provide, as a penalty, that an absentee vote east by an elector who votes by personal appearance without making a written application shall be void. The provision therein that a voter who votes absentee by personal appearance “shall make written application” is directory, not mandatory. The 551 votes were properly counted. The trial court correctly rendered judgment for contestees.

The judgment of the trial court is AFFIRMED.


author: ROBINSON, Justice.

text:
    Will Edward BRANTLEY, Appellant, v. CITY OF DALLAS, Appellee.
    No. 8736.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 31, 1976.
    Rehearing Denied Jan. 24, 1977.
    Smith, Rachal, Schutze, Sanderson & Boudreaux, Joe N. Boudreaux, Dallas, for appellant.
    Strasburger, Price, Kelton, Martin & Unis, Rowland B. Foster, Dallas, for appel-lee.
   ROBINSON, Justice.

Plaintiff Will E. Brantley filed suit against the City of Dallas alleging personal injuries as a result of negligence on the part of employees of the Dallas Fire Department’s Emergency Ambulance Service in failing to transport him to a hospital. The trial court denied plaintiff’s motion for partial summary judgment and granted the defendant City’s motion for summary judgment based on governmental immunity. Plaintiff appeals, contending that the operation of an emergency ambulance service is a proprietary rather than a governmental function, and in the alternative, that governmental immunity has been waived by the Texas Tort Claims Act, Vernon’s Ann. Civ.St. art. 6252-19. Affirmed.

The emergency ambulance service in question is operated by the City of Dallas pursuant to city ordinances which make it unlawful for anyone except the Dallas Fire Department or the U.S. Government to operate an emergency ambulance service within the city limits except in certain specified situations. Several private ambulance companies provide non-emergency service in the city. Emergency service is provided for patients in circumstances which call for immediate action and in which the element of time in transporting the sick, wounded or injured for medical treatment is essential to the health or life of the person.

We do not find that the question of whether an emergency ambulance service operated by a city is a governmental or proprietary function has been decided by the courts of this state. However, our courts have held that the operation of a city hospital is a governmental function. In City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (Tex.Com.App.1937, opinion adopted), the court held that the establishment and maintenance of a hospital is a governmental function and that a city is not liable for injuries caused by the negligence of its employees in the operation of the city’s hospital. The court cited Dillon’s Municipal Corporations (5th Ed.) Vol. 4, p. 2986, § 1661 as follows:

Dillon’s statement of the general rule is: “The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute, appertains to it in its governmental or public, and not its corporate, or as it is sometimes called, private capacity.” Applying the general rule to the particular question here presented, he says: “And therefore where a city, under its charter, and the general laws of the state enacted to prevent the spread of contagious diseases, establishes a hospital it is not responsible to persons injured by reason of the misconduct of its agents and employees therein.”

The Tennessee Supreme Court in City of Memphis v. Bettis, 512 S.W.2d 270 (Tenn.1974), held that the operation of an emergency ambulance was a governmental and not a proprietary function. The Tennessee court relied on an earlier case, dealing with a public hospital wherein it had quoted 6 McQuillin Municipal Corporations § 2669, which states:

The duty of a municipal corporation to conserve the public health is governmental, and it is not liable for injuries inflicted while performing such duty. The decisions are practically unanimous in holding that a municipality is not liable for the torts of its board of health or other health officers on the theory that the duty in regard to preventing sickness or caring for sick people is strictly a governmental or public function. [Emphasis supplied.]

The courts of other states have held that the operation of an ambulance by a city hospital is not a proprietary function. City of Newark v. United States, 149 F.Supp. 917 (D.N.J.1957); Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664 (1911).

In the Texas case of Ayala v. City of Corpus Christi, 507 S.W.2d 324 (Tex.Civ.App. — Corpus Christi 1974, no writ), wherein a private ambulance service sought to enjoin the city from operating an emergency ambulance service, the court stated,

The institution of an emergency ambulance service is, we believe, a service kindred to the police or fire service. This type of service is incident to the police power of the state: i. e. to protect the health, safety, and general welfare of its citizens. See Attorney General’s opinions # M-231 (1968); # M-385 (1969); # C — 772 (1966); # M-806 (1971).

We conclude that the operation of an emergency ambulance service by a city is a governmental function and that the City of Dallas is not liable for the negligence of its employees in performing that function unless its governmental immunity has been waived by the Texas Tort Claims Act, art. 6252-19, V.A.C.S.

Plaintiff contends that his injuries arose from negligence of the defendant City’s employees arising either from the use and operation of a motor vehicle or from the use of tangible personal property for which governmental immunity has been expressly waived and abolished by art. 6252-19, V.A. C.S. (Supp.1976). The relevant portion of that statute is as follows:

Liability of governmental units Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.

Plaintiff alleges that he became ill from a perforated ulcer; that a request was made to defendant, for an ambulance to transport him to the hospital for this emergency; that defendant’s employees responded to the call, but after examining him, refused to take him to the hospital in defendant’s ambulance; and that he suffered personal injuries as a result.

The examination by the emergency technicians consisted of taking plaintiff’s blood pressure, checking his pulse and respiration rate, and palpating his abdomen. The equipment used was a sphygmomanometer and a stethoscope which were used to determine blood pressure. Neither is alleged to have been defective or improperly used. The emergency technicians concluded that emergency transportation was not required and declined to take plaintiff to the hospital.

In contending that he has alleged a cause of action within the waiver of the Texas Tort Claims Act, plaintiff relies on Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.1975) in which it was alleged that injuries were caused by negligently providing a bed without bed rails; on Mokry v. University of Texas Health Science Center, 529 S.W.2d 802 (Tex.Civ.App. — Dallas 1975, no writ), in which injuries were alleged to have resulted from the loss of an eyeball caused by negligent use of a container and negligent failure to have a strainer covering a drain; and on Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976) in which it was alleged that injuries resulted from negligently furnishing defective equipment and in failing to furnish proper protective equipment for a football player’s injured knee.

In each of these cases, the allegations were held sufficient to state a cause of action within the waiver of the Tort Claims Act. However, the allegations in those cases are quite different from those in the case before us. In Mokry, McGuire and Lowe, the injuries are alleged to have proximately resulted from the negligent use of property in some respect deficient or inappropriate for the purpose for which it was used — in McGuire, the hospital bed without rails; in Mokry, the laboratory sink without a strainer; and in Lowe, the football uniform without tape or knee brace. There is no such allegation in the case before us. On the contrary, plaintiff’s allegations and summary judgment evidence show a refusal to render service as a result of a judgment or diagnosis made by the emergency technicians. There is no suggestion that an erroneous judgment, if it was erroneous, was made because of negligence in the use of personal property or because of any defect or deficiency in the equipment used.

Further, the omission complained of did not arise from the operation or use of a motor vehicle. The act does not define the words “operation” and “use,” thus the words must be taken in their common and ordinary meaning. Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.— Corpus Christi 1972, writ ref’d n. r. e.).

Taking the words “use” and “operation” in their common and ordinary meaning, an allegation that injuries resulted because a technician refused to transport plaintiff in an ambulance is not equivalent to an allegation that plaintiff’s injuries were proximately caused by negligence arising from the use or operation of a motor vehicle.

We conclude that governmental immunity from liability for the alleged negligence of defendant’s employees on the occurrence in question has not been waived or abolished by the Texas Tort Claims Act.

By his final point of error, plaintiff urges the court, in the interest of justice, to abrogate and abolish the doctrine of governmental immunity under the circumstances of this case. In Lowe v. Texas Tech University, supra, our Supreme Court stated that it adheres to its decisions in the past that the waiver of governmental immunity is a matter to be addressed to the Legislature. It is thus clearly not a matter to be undertaken by a court of civil appeals.

We overrule each of appellant-plaintiff’s points of error. The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    T. Lowry WHITTAKER, Petitioner, v. Judge Robert M. BURNETT et al., Respondents.
    No. 17879.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 4, 1977.

      T. Lowry Whittaker, pro se.
    Robert M. Burnett, Judge, County Probate Court, Tarrant County, Fort Worth, pro se.
    Robert G. Crow, Fort Worth, for Union Bank.
   OPINION

PER CURIAM.

The matter under consideration is the petition for Writ of Prohibition permitted to be filed by Petitioner T. Lowry Whittaker. He prays that we enjoin Respondent Judge Robert M. Burnett of the Probate Court of Tarrant County from carrying into effect that certain portion of his Order of September 13, 1976 reading as follows: “It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Respondent (Whittaker) be, and he is hereby, ordered to deliver to the Petitioner (The Union Bank of Fort Worth, Texas, which is also a party to the instant proceeding) all assets belonging to Abbie C. Whittaker that have come into his possession and control in whatever claimed capacity, . . . .”

From the above Order Whittaker has perfected his appeal. He has delivered up to the Union Bank, the Guardian of Petitioner’s aged and incompetent mother, Abbie Whittaker, such property as he has confessed to belong to her and theretofore held by him as her temporary guardian. See V.A. T.S. Probate Code § 222 “(Guardian) — Removal”. He has refused to deliver up certain other property which he asserts is held in trust and not in temporary guardianship, although its corpus was for the support and maintenance of his mother in the rest home where she is receiving care. Because of this failure to comply with the Order there is threat, indeed the promise by Judge Burnett, that if not prevented by this court pursuant to this proceeding, Whittaker will be held in contempt under pain of such penalty as will probably insure compliance.

The alleged trust property ordered delivered up consists primarily of a bank’s Certificate of Deposit, plus other funds in a savings account, from which Whittaker claims to be providing support for his mother. The trust is admittedly oral, but one nevertheless claimed to be effective and sufficient, consisting of property received by Whittaker from his mother. Of interest is that Whittaker is claiming that if there be anything remaining of the trust property at his mother’s death those entitled thereto, by the terms of the trust, will be his brother and himself.

The appeal from the Order of the Probate Court now pends for hearing.

Also, there pends for trial in a District Court of Tarrant County suit or suits pursuant to which there might be determination of whether the trust actually exists, as claimed by Whittaker, and, if so, its terms and provisions.

By his Petition for Writ of Prohibition the presentation of Whittaker is that necessity exists that it be granted in order that the corpus of the alleged trust estate not be dissipated and lost; that if this not be done his appeal will become moot in that it involves the right to possession of the property — for use in the maintenance of his mother — and that when completely dissipated no occasion for preservation of the appeal will exist, with the consequence that it will then be proper to dismiss the appeal as moot.

It is obvious that Petitioner Whittaker is of the belief that any right to relief would be totally destroyed if his appeal should become moot. Such is not the state of our law. But of this there is no present occasion for a discussion.

The authority of this Court to issue a Writ of Prohibition is limited, existing only in cases in which jurisdiction becomes vested upon an appeal, and then only to the extent necessary to enforce and/or to preserve that jurisdiction, and to protect any judgment which might be rendered. 46 Tex.Jur.2d, p. 456, “Prohibition”, Sec. 10, “(Jurisdiction to issue writ) — Courts of civil appeals”.

An example of an analogous situation is where there has been an appeal from an order of a trial court in refusal to enjoin a sale by trustee, and where the sale would operate to extinguish the subject matter of the appeal, and, as by-product make the appeal moot. In such a case we had occasion to write in Padgett v. Mutual Building & Loan Association, 504 S.W.2d 535 (Tex. Civ.App., Port Worth, 1971, no writ hist.). It was to preserve the jurisdiction of the Court of Civil Appeals that it was ordered that there be no Trustee’s Sale of subject property pending disposition of the appeal from the order of a trial court refusing to enjoin the sale. Not to have done so would have permitted destruction of the subject matter of the appeal.

Here one distinction is that no single imminent threatened act exists which might make the subject matter of the appeal moot. Though the property may be dissipated by the Union Bank in the discharge of its duties as guardian it would not be through a single act, but through and as a result of a series, the final act being one which might or might not so destroy the subject matter of the appeal that no occasion would remain for action thereon by this Court. At least nothing to the contrary is shown.

In the meantime, and before any final action is taken on the merits of Whittaker’s appeal, there might be final determination in the District Court of the existence of the alleged trust. There are other conceivable occurrences which would result in the preservation of the property to which Whittaker claims entitlement as trustee, or at least a portion of it. Perhaps by that time we will have passed on the merits of the appeal.

When the sole question presented by an appeal is the right of appellant to possession of property, the appeal must be dismissed as presenting a moot question where the right of possession has been lost or will have been lost before the appeal can be decided. 5 C.J.S. Appeal and Error § 1362, p. 448, “Review Unnecessary or Ineffectual”, citing Riley v. Commissioners’ Court of Hutchinson County, 12 S.W.2d 1072 (Tex.Civ.App., Amarillo, 1929, no writ hist.).

It necessarily follows that where the right of possession has not been lost, or will not necessarily have been lost before the appeal can be decided, the case will not be dismissed as presenting a moot question: a question presented on appeal will not become moot so long as any part of the property to which the controversy concerning the possessory right pertains continues to exist.

In this, as in the ordinary case, the burden is upon the party who petitions for relief. In the instant situation it is Whit-taker who must demonstrate the occasion for issuance of a writ of prohibition, i. e., that his appeal from the Order of September 13, 1976, will become moot unless the writ be granted. Whittaker has not discharged the burden.

It is not necessary that there be investigation of any additional reasons why it would be improper to grant the relief Whit-taker desires.

Petition for Writ of Prohibition is denied.


author: SHANNON, Justice.

text:
    David MOODY, Appellant, v. TEMPLE NATIONAL BANK et al., Appellees.
    No. 12489.
    Court of Civil Appeals of Texas, Austin.
    Jan. 5, 1977.

      Kevin Holcomb, Watkins, Ledbetter & Ramsey, Austin, for appellant.
    Jerry Secrest, Daniel, Tarver & Secrest, Temple, for appellees.
   SHANNON, Justice.

Appellant, David Moody, filed suit in the district court of Bell County against Grady Tindle and appellees Temple National Bank and its employees, Bill Vanicek and Louis Robinson. The district court granted appel-lees’ motion for summary judgment. We will reverse the judgment and remand the cause to district court.

Appellant claims, among other things, that the judgment should be reversed because appellees’ motion for summary judgment failed to state the specific grounds therefor as required by Tex.R.Civ.P. 166-A(c).

The pertinent part of the motion for summary judgment reads as follows:

“Except as to the issue of damages, there is no genuine issue as to any material fact and that the pleadings, depositions and interrogatories on file herein show that these Defendants, the moving parties, are entitled to a Judgment that the Plaintiff, DAVID MOODY, take nothing as against these Defendants, TEMPLE NATIONAL BANK, BILL VANICEK and LOUIE [sic] ROBINSON, as a matter of law.”

Prior to its amendment, Rule 166-A(c) did not require that a motion for summary judgment set out the grounds upon which it was based. But in 1971 Rule 166 — A(c) was amended to require that “The motion for summary judgment shall state the specific grounds therefor.”

The right to summary judgment exists only by virtue of Rule 166-A. To be entitled to a summary judgment a party must strictly comply with the provisions of Rule 166-A. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961).

An examination of appellees’ motion shows it to be in the form usually employed prior to the 1971 amendment of Rule 166-A(c). The motion, however, does not state any grounds, specific or otherwise, upon which it is based, and, as a result, it is not in compliance with Rule 166-A(c) as amended. See Mallory v. Dorothy Prinzhorn Beal Estate, 535 S.W.2d 371 (Tex.Civ.App.1976, no writ).

The judgment is reversed and the cause is remanded to the district court.


author: PHILLIPS, Chief Justice.

text:
    WASHINGTON AMERICAN LIFE INSURANCE COMPANY, Appellant, v. The STATE of Texas, Appellee. AMERICAN INSURANCE MANAGEMENT SERVICE, INC., Appellant, v. The STATE of Texas, Appellee.
    Nos. 12563, 12567, 12564 and 12570.
    Court of Civil Appeals of Texas, Austin.
    Jan. 5, 1977.

      H. Lee Godfrey, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for appellants.
    John L. Hill, Atty. Gen., Thomas A. Rutledge, David W. Pace, Asst. Attys. Gen., Austin, for appellee.
   PHILLIPS, Chief Justice.

The Attorney General of Texas initiated a quo warranto proceeding in the court below on November 16, 1976, that resulted in placing both Washington American Life Insurance Company and American Insurance Management Service, Incorporated, the appellants in the above-styled cases, in receivership without notice and hearing. Both of these appellants perfected their appeals from the interlocutory ex parte order of receivership. Appellants also filed a motion to dissolve the ex parte order which was denied by the trial court. Appellants then sought a writ of injunction from this Court protecting them from the orders entered below. After appellants filed their applications for the emergency relief here, the trial court after hearing entered orders continuing the temporary injunction granted and also continuing the temporary ancillary receivership. Appeals were then perfected from these orders.

On motions by appellants, the appeals from the various orders of the trial court described above were consolidated for purposes of review by this Court. We deny appellants any relief in staying the orders of the trial court, and further, the judgment of the trial court is in all respects affirmed.

Although both appeals were briefed and argued separately, we will dispose of them in this opinion.

Appellant Washington American Life Insurance Company will be referred to hereafter as Washington American, and American Insurance Management Service, Incorporated, will be referred to as AIMS.

In its order of November 16, 1976, the trial court found it necessary to enter an order, without notice, directing the statutory liquidator for the State Board of Insurance, as temporary ancillary receiver, to take charge of and preserve and protect the property, assets and records of both appellants and to conduct their affairs pending final hearing on the State’s original petition; and that both appellants, their officers, directors, agents, employees and representatives, should be restrained from conducting the business of insurance or any other business by both appellants under any permit, certificate of authority, power or privilege of these appellants; and further, issued a temporary restraining order against any bank, person, firm, association or corporation from disposing of any of the assets or properties of these appellants pending a final determination herein.

The court further found that Washington American was engaging in business in Texas without a permit or certificate of authority, appeared to be insolvent or in immediate danger of insolvency; that unless temporarily restrained would continue to operate in its apparently insolvent condition in violation of the laws of this State and continue to engage in business and create debts and obligations and deplete its assets, all contrary to the best interests of its policyholders, creditors and the general public; and that immediate and irreparable injury, loss and damage would result to the policyholders, creditors and the general public before notice could be served and a hearing had hereon, unless appellant was restrained pending hearing.

The court further found that AIMS was exercising powers in excess of those authorized by law and that it would continue such operations in violation of the laws of this State unless restrained. Then the order pertinent to AIMS, for the most part, tracks those findings made in the public interest set out above with respect to Washington American.

The court ordered the appointment of a temporary ancillary receiver so that during the duration of these proceedings the servicing of policies of policyholders could be continued and the legal obligations of the appellants could be supervised.

The court set a supersedeas bond in the amount of $232,000 for Washington American and $2,000,000 for AIMS.

I

Appellant Washington American contends that it is a foreign corporation chartered in the state of Arizona, that it is domiciled in Arizona and has issued no insurance policies, and further, that it has acted as a reinsurer of insurance policies issued by Old Security Life Insurance Company, a Missouri company licensed to do business in Texas.

It should be noted at this point that Old Security Life Insurance Company has been placed under supervision by the Insurance Commissioner of this State.

In its points of error, appellant Washington American complains of the orders of the court below contending that there is no statutory authority therefor, and further, that appellant’s “insolvency” or “imminent insolvency” are merely conclusions utterly without supporting allegations of fact.

We do not agree. The evidence discloses that although it has not issued insurance policies under its own name, it has agreed to perform all the terms and to assume all the obligations of group policies issued by the Old Security Life Insurance Company in the state of Texas, pursuant to an agreement between the two companies.

Although Washington American claims to be domiciled in Arizona, its principal business was conducted in Texas and its primary office was located in Texas. A preliminary examination by examiners from the states of Arizona and Texas revealed credible evidence that its capital had been impaired, that it was insolvent under the laws of the state of Arizona, and further that it had never paid any franchise taxes to the state of Texas.

While the examination was in progress, it was stayed by an order of the district court in Dallas, during which time appellant’s books and records were removed from its offices in Dallas and whisked away to Arizona. It was not until the dismissal of the Dallas court’s order that the examiners found that the records had been removed even though their examination had not yet been completed.

Appellants have insisted strenuously in both their briefs and in oral argument that Washington American is not insolvent. They have pointed to certain company assets that were disallowed by the Arizona examiner for one reason or another, arguing their validity. In view of the fact that, presumably, a hearing will be held on the question of the granting of a permanent injunction and also in view of the fact that, by its own act, Washington American has put its books and records beyond the reach of the State of Texas, we are inclined, at this stage of the proceedings, to accept the findings of insolvency at face value.

This brings us to the questions of the validity of the temporary injunction and the subsequent temporary receivership. Although appellants also appealed from the ex parte peremptory orders, inasmuch as they elected to file their answers and introduce evidence at the hearing for temporary receiverships and injunctions, any defects attendant to the initial orders have been waived. Sheppard v. Jacksboro Refining Co., 123 S.W.2d 497 (Tex.Civ.App.1938, writ dism’d jdgmt cor.).

Article 2293, Vernon’s Civil Statutes, authorizes the appointment of a receiver in “cases where a corporation is insolvent or in imminent danger of insolvency” and “all other cases where receivers have heretofore been appointed by the usages of the courts of equity.”

The question of whether to appoint a receiver is addressed to the sound discretion of the court and in the absence of a clear abuse of that discretion, the appointment will not be disturbed on appeal. Col-legia te Recovery and Credit Assistance Programs, Inc. v. State, 525 S.W.2d 900 (Tex. Civ.App.1975, no writ). We hold that, based on the evidence adduced at the temporary injunction hearing, the trial court did not abuse its discretion in granting the temporary injunction or in appointing a receiver for appellant either under Article 2293, V.C.S., or under the general usages of equity. When a corporation such as appellant has been restrained in the public interest from conducting business, receivership proceedings are within the discretion of the trial court and usually follow, Manning v. State, 423 S.W.2d 406 (Tex.Civ.App.1967, writ ref. n. r. e.)

We also overrule appellant’s point that the trial court abused its discretion in setting a supersedeas bond of $232,000. See this Court’s opinion in Moody v. Crook, 520 S.W.2d 958 (Tex.Civ.App.1975, no writ).

II

Appellant American Insurance Management Service, Incorporated, or AIMS, contends that it has a lawful certificate of authority to do business in Texas and that there is no statutory authority for putting it into receivership.

Appellant AIMS’ basic argument is that it had been hired by Old Security Life Insurance Company to perform certain administrative services for and on behalf of Old Security under a standard administrative agreement and that it is exempt from licensing under the Texas Insurance Code. Old Security has a license to write life, health and accident insurance in Texas.

The State contends that the arrangement between Old Security and appellant was a subterfuge whereby appellant did a complete business of insurance in the name of Old Security. For this, Old Security paid appellant a fee and in return received a reinsurance premium from Washington American which shared offices with appellant and routinely reinsured all policies administered by appellant in the name of Old Security. The State contends, and we agree, that in economic reality, appellant issued policies and did a complete business of insurance in the name of Old Security, at a time when appellant AIMS was not licensed to conduct an insurance business in Texas.

From a review of the record it is readily apparent that AIMS performs and conducts every possible transaction, step by step, involving the writing of group life, health and accident insurance whether as a principal or as an agent.

The testimony discloses that Old Security was not supervising AIMS’ activities in Texas; nevertheless, AIMS was finding and receiving specifications from potential policyholders, underwriting and determining what premiums should be charged for such a policy based on those specifications. They were then putting those specifications in a proposal and sending it to the potential policyholder. They were receiving back applications from the potential policyholders. They were then going through post-sale underwriting to determine whether or not the applications conformed to the original specifications on which the rate structure had been determined. If it had, they were issuing policies and individual certificates to the individual certificate holders under the policy. They were billing premiums due, at least under some of the policies. They were collecting premiums from those policies which they billed and they were paying claims on the policies.

We hold that all of these activities fall within the ambit of conduct for which either an agent’s or principal’s license is required under the Texas Insurance Code, Articles 1.14-1 and 21.01 through 21.07.

We also hold that an injunction prohibiting such activities on the part of AIMS lay by virtue of quo warranto, Article 6253, V.C.S., and Article 4409, V.C.S., which provides that the Attorney General shall also inquire into the charter rights of all private corporations and, in the name of the State, take such legal action as may be proper and necessary to prevent any private corporation from exercising any power not authorized by law. Also see this Court’s opinion in Day v. State, 489 S.W.2d 368 (Tex.Civ. App. 1972, writ ref. n. r. e.).

The resulting receivership is authorized by Article 21.28 of the Texas Insurance Code.

We also overrule appellant’s point that the $2,000,000 supersedeas bond was, for all practical purposes, a denial of super-sedeas. Under the facts of this case we are unable to hold that the trial court abused its discretion in setting the bond.

In the first place, Washington American and appellant AIMS had their affairs so inextricably intertwined that it was necessary for the examiners to go into one another’s records for an examination of claims and premiums. As mentioned above, at this point in the proceeding Washington American’s records are unavailable for scrutiny. The record also reflects that part of the premium income designated for Old Security went into AIMS accounts. The bond was apparently set to guarantee that insurance policyholders whose premium payments were received and disbursed by AIMS, at its discretion, would be secure in all events. For the month of September, 1976, alone, AIMS was responsible for managing over $4,000,000 in earned premiums. These were received and disbursed at its discretion, unsupervised by Old Security. The record also disclosed that AIMS’ administrative and other expenses exceeded earned premium income. Moody v. Crook, supra.

The judgment of the trial court is in all things affirmed.

Affirmed.

      . Under this record injunction lay to preserve the status quo. 31 Tex.Jur.2d Injunctions § 38 (1962), n. 18 and cases there cited.

      . See Staples v. State, 244 S.W. 1068 (Tex.Civ.App.1922, no writ).


author: PARK, Judge.

text:
    James R. YOCOM, Commissioner, Department of Labor of Kentucky, for himself and on behalf of Rick Burke, et al., Appellant, v. FRANKLIN COUNTY FISCAL COURT, Jack Goins, County Judge, et al., Appellees. G. REYNOLDS WATKINS, CONSULTING ENGINEERS, INC., Appellant, v. SOUTHEAST JEFFERSON-SOUTHWEST SHELBY WATER DISTRICT et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 3, 1976.
    Paul F. Guthrie, Gess, Mattingly, Saunier & Atchison, Lexington, for appellant G. Reynolds Watkins, Consulting Engineers, Inc.
    Donald F. Schmidt, Henry B. Huff, John G. Hicks, Herman Frick, Louisville, for appellants Southeast Jefferson-Southwest Shelby Water District and others.
    E. H. Tingle, Asst. Gen. Counsel, Dept, of Labor, Louisville, for appellants James R. Yocom, Commissioner Department of Labor, etc.
    William A. Young, Frankfort, for appel-lee Franklin County Fiscal Court and others.
   OPINION AND ORDER

Before the Court sitting En Banc:

PARK, Judge.

These two appeals involve a construction of CR 73.03, as amended by the Supreme Court, effective July 1, 1976. In each case, a motion to dismiss the appeal has been filed on the ground that the notice of appeal failed to specify all of the appellees as required by CR 73.03.

In No. CA-300-MR, James R. Yocom Commissioner, etc. v. Franklin County Fiscal Court et al., the body of the notice of appeal contained only the following statement:

“Notice is hereby given that James R. Yocom, Commissioner of Labor, on behalf of Rick Burke, James Stewart and John Webb, appeals to the Court of Appeals from the judgment entered in this action on July 26, 1976.”

The caption of the notice of appeal listed the defendants simply as “Franklin County Fiscal Court, et al.”

In No. CA-270-MR, G. Reynolds Watkins Consulting Engineers, Inc. v. Southeast Jefferson-Southwest Shelby Water District, et al., the notice of appeal stated only the name of the appellant and the judgment appealed from. The notice of appeal did not undertake to specify the appellees. The caption on the notice of appeal designated the defendants as “Southeast Jefferson-Southwest Shelby Water District, et al.”

Prior to its amendment on July 1, 1976, CR 73.03 provided in part as follows:

“The notice of appeal shall specify the parties taking the appeal, and shall designate the judgment or part thereof appealed from.”

In construing this rule in his treatise on civil procedure, Clay states:

“It is imperative that the names of the appellants be stated in the notice of appeal. The term ‘et al.’ names nobody and consequently would not constitute the taking of an appeal by anyone sought to be included in that designation.
The rule does not require that the names of the appellees be specified. However, a proper notice of appeal should name at least one appellee and good practice would dictate naming them all to avoid a possible fatal oversight when the appeal is perfected. The names of the appellees must be shown on the statement of appeal filed with the record in the Court of Appeals.” (emphasis in original)

Clay, Ky.Prac., 3rd Ed., Civil Rule 73.03, Comment 4, at Page 421 (1974).

As amended, the Rules of Appellate Practice still require that the name of each appellee be specified in the statement of appeal filed with the record in the appellate court. See, RAP 1.090(a) and RAP 1.095(a)(1). In addition, CR 73.03 was amended to provide:

“The notice of appeal shall specify all the appellants and all the appellees; ‘et al.’ and ‘etc.’ are not proper designations of parties.”

As amended CR 73.03 clearly requires that the notice of appeal specify the names of all of the appellees, as well as all of the appellants.

The provisions of CR 73.08 as amended must be construed in light of the provisions of CR 74 relating to cross-appeals. CR 74 provides in part:

“Any party may take a cross-appeal from a judgment of a trial court against a party who has taken an appeal against him.”

CR 74 also grants an additional ten days within which to file a notice of cross-appeal, but a party who is not an appellee has no right to prosecute a cross-appeal. Richardson v. Hoback, 311 Ky. 574, 224 S.W.2d 932 (1949).

In order that the court can determine who is entitled to the additional ten days to cross-appeal allowed by CR 74, the notice of appeal must specify all of the appellees as required by CR 73.03 as amended. If the notice of appeal designates the appellees in such a way that it is possible to determine who is entitled to prosecute a cross-appeal under CR 74, then it follows that the notice of appeal has satisfied the requirement of CR 73.03 that all appellees be specified.

Turning first to No. CA-300-MR, the plaintiff below, James R. Yocom, as Commissioner of the Department of Labor, sued the Franklin County Fiscal Court and the individual members comprising the Fiscal Court. The county judge and magistrates composing the Fiscal Court were also joined as defendants. However, the county judge and magistrates were all sued in their official, rather than individual, capacity. The caption to the notice of appeal specified the defendants as “Franklin County Fiscal Court, et al.” It is self evident that the Fiscal Court and all of its members in their official capacities were to be appellees to the appeal. This court is not required to guess that the designation “Franklin County Fiscal Court, et al.” was intended to encompass the individuals composing the Fiscal Court. The court concludes that the notice of appeal in No. CA-300-MR sufficiently specifies the Fiscal Court and all of its members as appellees to the appeal. That appeal should not be dismissed for failure to comply with CR 73.03.

A different problem is presented in No. CA-270-MR, G. Reynolds Watkins Consulting Engineers, Inc. v. Southeast Jefferson-Southwest Shelby Water District, et al. This action was originally commenced by the Watkins Engineering Firm to recover for engineering services rendered to the Water District. The only assets of the Water District were tap-on fee deposits made by the original subscribers to the Water District. Construction of the water system contemplated by the Water District proved unfeasible, and the system was never constructed. The engineering firm obtained a restraining order and, later, a temporary injunction prohibiting the Water District from returning the tap-on fee deposits to the subscribers.

The trial court held that the subscribers were indispensable parties, and Earl T. Frederick, individually and as representative of the class constituting the subscribers to the Water District, was permitted to file an intervening complaint seeking to impose a trust upon the tap-on fee deposits for the benefit of the subscribers. The trial court held that the contract between the Water District and its subscribers should be reformed so as to impose a trust upon the tap-on fee deposits. The amount of the tap-on fee deposits exceeded the amount claimed by the engineering firm for services rendered. The judgment entered by the trial court provided that the water district should return to the subscribers on a pro rata basis all deposits in excess of the amount of the engineering firm’s claim.

Nowhere in the notice of appeal filed by the engineering firm is there any reference to the subscribers to the Water District who were the intervening plaintiffs. The reference in the caption to the “defendants” as the “Southeast Jefferson-Southwest Shelby Water District, et al.” does not necessarily include the intervening plaintiffs. It should be noted that the original complaint joined the chairman of the Water District, Frank Schooler, Jr., as a party defendant. It has long been the rule that a party may not be designated by the expression “et al.” See, Commonwealth, Department of Highways v. Scott, Ky., 435 S.W.2d 767, at 769 (1968). As amended, CR 73.03 expressly provides that “et al.” is not a proper designation of parties in a notice of appeal. If CR 73.03 as amended applies to this appeal, then the subscribers to the Water District would not be parties to the appeal. As the subscribers are indispensable parties to the appeal, the failure to join the subscribers would be grounds for dismissing the appeal. See, Commonwealth, Department of Highways v. Kelley, Ky., 376 S.W.2d 539 (1964).

One other rule must be considered in passing upon the motion to dismiss. CR 86(2) provides that all amendments to the Civil Rules govern further proceedings in actions pending on the effective date of the amendments, with one exception. Based upon a determination that application of an amended provision would work injustice, the proper court may by order in its discretion direct that the procedure existing at the time the action was commenced will continue to apply. In the present case, the notice of appeal complied with all of the requirements of CR 73.03 existing through June 30, 1976. The notice of appeal was actually filed on August 18, 1976.

Because of the exigent circumstances existing as a result of the implementation of the Judicial Article, the Supreme Court was not able to give the members of the Kentucky Bar Association the sixty days notice of the amendments contemplated by CR 87. The copies of the amendments mailed to the individual members of the bar were printed in minute type which was extremely difficult to read. The first readable copy of the amendments was contained in the August 10, 1976, advance sheets to the Southwestern Reporter. Bar Association seminars on the new amendments were conducted from October 11, 1976, to October 28, 1976, well after the notice of appeal was filed on this case on August 18,1976. Compare, Mitchell v. White Consolidated, Inc., 177 F.2d 500 (7 Cir. 1949), with Electric Plant Board v. Stephens, Ky., 273 S.W.2d 817 (1954).

Having in mind the new policy of Section 115 of the Kentucky Constitution that there shall be as a matter of right one appeal in every case, this court concludes that it would be unjust to apply CR 73.03 as amended to this appeal, and that the provisions of CR 73.03 as they existed prior to July 1, 1976, should apply to this proceeding. Such an application of the prior rule causes no prejudice or undue hardship to the appellees. The court notes that the intervening plaintiffs have themselves perfected an appeal from an order of the trial court allowing a fee to the Water District’s attorneys to be paid out of the trust held for the benefit of the subscribers.

By January 1, 1977, the members of the bar will have had ample opportunity to review and familiarize themselves with all of the amendments to the rules. After that date, there will be no need to apply the exception to the general rule of CR 86(2), and the members of the bar will be expected to comply with the rule amendments.

For the foregoing reasons, the motion to dismiss in No. CA-300 — MR, James R. Yo-com, Commissioner, etc. v. Franklin County Fiscal Court et aL, is hereby denied: and the motion to dismiss in No. CA-270 — MR, G. Reynolds Watkins Consulting Engineers, Inc. v. Southeast Jefferson-Southwest Shelby Water District, et aL, is likewise hereby denied.

IT IS ORDERED that the provisions of CR 73.03 as they existed prior to July 1, 1976 shall apply to the proceedings of No. CA-270-MR on appeal.

All concur.


author: CLEMENS, Judge.

text:
    Anna M. BECKMAN, Respondent, v. James R. BECKMAN, Appellant.
    Nos. 36985, 37244.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 17, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Dec. 20, 1976.
    Application to Transfer Denied Feb. 14,1977.

      Wiseman, Shaikewitz, McGivern & Wahl, Richard Shaikewitz, Alton, for petitioner-appellant.
    Shifrin, Treiman, Bamburg & Dempsey, Richard B. Dempsey, St. Louis, for respondent-appellee.
   CLEMENS, Judge.

Cross appeals on monetary issues in a dissolution of marriage action.

Anna M. Beckman, petitioner, sued James R. Beckman, respondent, alleging their 29-year marriage was broken because he had mistreated her, committed adultery, drank to excess and been abusive. Respondent denied none of these allegations. The trial court dissolved the marriage, denied maintenance, divided the marital property and allowed attorney fees to the petitioner.

The major item of marital property was the respondent’s 330 shares of stock in a 1,320-share family corporation operating a large farm. As hereafter detailed, the trial court valued the 330 shares at $248,000 and divided it by ordering respondent to pay petitioner $1,000 a month for 124 months. Both parties challenge that division, contending generally the court “abused its discretion.” Throughout this opinion we bear in mind the definition of that repeated phrase: “ ‘An abuse of discretion is an erroneous finding- and judgment which is clearly contrary to the facts and circumstances before the court—a judicial act which is untenable and clearly against reason and which works an injustice.’ ” State v. Letourneau, 515 S.W.2d 838[6] (Mo.App.1974).

The key issue concerns respondent’s one-fourth of the shares of stock in the farming corporations. The principal corporate assets are the 1,200-acre farm and the equipment used to operate it. The trial court treated respondent's corporate stock as being worth one-fourth the value of the corporate assets. Petitioner introduced expert testimony that the farm with its improvements was worth $1,180,900; cattle on the farm, $35,515; farm equipment, $159,-500.

Challenging the trial court’s valuation of respondent’s stock based on corporate net worth, .petitioner argues the court should have valued the stock separately and intrinsically. She argues that one of the several accepted technical valuation methods should have been used to establish the value of the 330 shares of corporate stock, such as book value, par value, and capitalized earnings, among other methods. Petitioner, however, does not explain why the court should have been confined to one of these technical methods.

The trial court determined the value of respondent’s 330 shares of corporate stock to be equal to one-fourth the value of the corporation’s assets. This valuation may not have accorded with the technical methods of valuation urged by petitioner, but we cannot say it “is clearly contrary to the facts or the logical deductions from the facts and circumstances before the court.” We hold this division was proper to a fair distribution of the marital property and that there was no abuse of discretion.

Petitioner next contends the trial court should have awarded her interest on the $124,000 respondent is to pay her in $1,000 monthly installments. She argues that the value of her interest is decreased by payment over a long period of time and that respondent will have the use of her share of the property without compensation to her. One of the factors the trial court could have considered in dividing the marital property is “the economic circumstances of each spouse at the time the division of property is to become effective.” Section 452.330.1(3), RSMo. The court was mindful of the necessity of sustaining the respondent’s farming operation in decreeing this deferred payment plan. This was a proper factor to have considered in devising the plan and in calculating the total amount of payments. We hold the trial court’s disposition of property through this installment method was not unreasonable in light of the parties’ economic circumstances.

Respondent’s fault. Petitioner next contends the trial court erred by dividing the marital property by halves because respondent was solely at fault in bringing about the dissolution. This division was improper, she argues, because the Missouri Dissolution of Marriage Act rejected a “no fault” approach by making “the conduct of parties during the marriage” a factor to be considered in dividing the marital property. Section 452.330, RSMo. The trial court’s discretion is defined by that statute, stating that the court “shall divide the marital property in such proportions as the court deems just after considering all relevant factors.” Fault is but one relevant factor. The statute also declares “the contribution of each spouse to the acquisition of the marital property” shall be a relevant factor. There was evidence of heavy contribution by the husband to his financial success. In weighing the relevant factors, the trial court could and apparently did consider this contribution as significant as fault in dividing the marital property. We find no abuse of discretion.

Maintenance. For her last point petitioner challenges the trial court’s denial of maintenance. This, because she is 51 years old, lacks job security, had been married to respondent for 29 years and at trial time had an economically insecure job which she lost after trial. Petitioner would have us find from the fact she lost her job that she is entitled to maintenance. For maintenance Missouri law requires more than unemployment. As held in In Re Marriage of Neubern, 535 S.W.2d 499[4, 5] (Mo. App.1976), under § 452.335(1), RSMo, maintenance is to be allowed a childless wife only when she lacks sufficient property, including the marital property apportioned to her, to provide for her reasonable needs, and she is unable to support herself through appropriate employment. The evidence did not compel an allowance for maintenance.

Respondent’s appeal. Respondent contends the monthly $1,000 payments impose an intolerable burden because during the first year he would have to pay more than the farm ever annually produced for him. He argues these payments will force him to liquidate his assets and thus he will lose his source of income. This prediction of total loss of income is not supported by the economic facts in evidence. Respondent has substantial assets from which to raise funds to make the payments. The trial court knew of respondent’s quarter of a million dollars in assets and placed what it believed was a reasonable burden on him. We find the award of installment payments not to be unreasonable.

Attorney’s fee. Respondent contests the award of attorney’s fee to petitioner because there was no evidence she was unable to pay her own fees, and also because there was no evidence of how much time her attorney spent on the case nor of how much he charged per hour. On the first point respondent cites old Missouri divorce case law holding it necessary to show that the person seeking attorney’s fees was unable to pay them. He also points out that the applicable section of the present Dissolution of Marriage Act, § 452.355, RSMo, states the court should consider the financial resources of both parties in ordering payment of attorney’s fees. The key word here is “consider.” Under that statute the need of the party is but one factor to consider in awarding fees. Such fees may be granted even when need is not established. The granting of attorney’s fees is within the court’s discretion, and bearing in mind the quoted definition of that term, we find no error.

Respondent also contends the attorney’s fees allowed were not adequately proven. There was evidence to show the time spent, letters written and pleadings drafted and other relevant information. We consider that “ ‘courts are themselves experts on the question of attorneys’ fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees without the aid of evidence.’ ” Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333[10] (Mo.App.1967).

Judgment affirmed.

DOWD and STEWART, JJ., concur.


text:
    Carol Beth HOOG (now Stitt), v. Joseph A. HOOG, Appellant, David Strauss, and Betty Strauss, Respondents.
    No. 36770.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 31, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Dec. 20, 1976.
    Application to Transfer Denied Feb. 14, 1977.

      W. W. Sleater, Clayton, for appellant.
    Michael W. Dunlop, St. Louis, for respondents.
   PER CURIAM.

This is an appeal by appellant, Joseph A. Hoog, from two separate rulings of the Circuit Court of St. Louis County declining to cite respondents, David Strauss and Betty Strauss, for contempt of court. For reasons hereinafter stated, we affirm.

Prior to November 9, 1972, Carol Beth Hoog (now Stitt) and Joseph A. Hoog had been married. There was one child, Catherine Marie, born of the marriage. On November 6, 1970, Carol Beth Hoog, by Betty Strauss, her next friend and mother, instituted suit for divorce against Joseph Hoog. On November 9, 1972, the marriage was dissolved, and Carol Beth was awarded primary custody of the minor child. Joseph Hoog was granted temporary custody on alternate weekends and the summer months of June and July. In addition, Mrs. Stitt was expressly prohibited, under the decree, from “removing residence of the child from St. Louis County or St. Louis City, Missouri.”

On or about June 30,1973, Mrs. Stitt, the mother, removed the child from the custody of her former husband, Joseph Hoog, and left the State of Missouri, taking the child with her. On November 9, 1973, Mr. Hoog filed in the Circuit Court of St. Louis County a “motion” requesting the court to cite Mrs. Stitt and her mother, Betty Strauss, for contempt. In his “motion” Mr. Hoog alleged (1) that on or about June 30, 1973, his former wife, Carol Beth Stitt, removed Catherine Marie from his custody and has failed to let him see the child since that date, (2) that she has removed the child from St. Louis City and County in contravention of the decree of divorce, and (3) that Betty Strauss conspired with her to remove the child from Mr. Hoog’s custody and has failed and refused to reveal the whereabouts of Carol Beth Hoog (Stitt) or the child, although those facts are within her knowledge.

The trial court below issued an order to show cause why Mrs. Hoog (Stitt) and her mother, Betty Strauss, should not be held in contempt for their actions in contravention of the divorce decree. The record indicates that Mrs. Stitt could not be found in St. Louis County and could not be served with a copy of the above order. Betty Strauss was served with the “show cause” order and filed a motion to “Quash Citation for Contempt” on the grounds that Joseph Hoog failed to set forth any order of court directed to her which she has refused or failed to obey and that Mr. Hoog failed to allege facts upon which she could be held in contempt. No further action was taken on these motions until November 1,1974, when the Circuit Court of St. Louis County issued an order and set the date for the hearing on the contempt motions for November 26, 1974.

But, prior to November 1, 1974, Mr. Hoog located his former wife, Mrs. Stitt, and the child living in Kentucky and instituted proceedings in the Jefferson Circuit Court, Chancery Branch, in Kentucky seeking immediate custody of the child. Both parties appeared in person and with counsel, and after a hearing the parties entered into an agreement in Kentucky. The agreement was incorporated into an order issued by the Jefferson Circuit Court, dated October 81, 1974. Pursuant to this “order,” Mrs. Stitt entered her appearance generally before the Circuit Court of St. Louis County for the purpose of all motions pending before that court, both parties acknowledging that that is the proper forum for contempt, change of custody and visitation and support rights. Mrs. Stitt also agreed to post and did post a $1,000 bond with the Receiver of the Jefferson Circuit Court to assure that the child would be produced before the St. Louis County Circuit Court for the November 26, 1974 hearing. Furthermore, as part of the Kentucky order, David Strauss, Mrs. Stitt’s brother and an attorney at law in Missouri, would immediately take custody of the minor child and keep her in Missouri, “subject to further Order” of the St. Louis County Circuit Court.

The day following the Jefferson County Circuit Court order and on November 1, 1974, the Circuit Court of St. Louis County issued its order aforesaid, which provided that:

“It is hereby ordered that Carol Beth Hoog (now Stitt) shall retain full care and custody of Catherine Marie Hoog until further order on Nov. 26th, 1974.”

Mr. Hoog thereupon sought to vacate the November 1,1974 order of the Circuit Court of St. Louis County by filing with that court a motion to “set aside” the order as being beyond the jurisdiction of the court and alleged that the order was obtained ex parte and without notice to Mr. Hoog or his attorney, that it was obtained “by gross misrepresentation to and fraud and deceit upon the Court” and that it was used to prevent Mr. Hoog from exercising his temporary custody rights as granted by the divorce decree. There is no indication in the record that any further action was ever taken regarding this motion. Mr. Hoog then filed a motion seeking to abate all child support accruing after June 30, 1973 and for damages against Mrs. Stitt, Betty Strauss and David Strauss, which motion was to be presented to the court at the November 26, 1974 hearing.

On or about November 4,1974, Mr. Hoog also filed an “application” for an order to show cause why David Strauss, Mrs. Stitt’s brother, should not be held in contempt of court. In this “application,” Mr. Hoog alleged that he was awarded temporary custody by the “decree of divorce,” that Mr. Strauss appeared before the trial court ex parte and. obtained the November 1 order by misrepresentation, that the order deprived him of his rights of temporary custody and that Strauss advised Mrs. Stitt to remove the child from the state. He prayed for an order to show cause why David Strauss should not be held in contempt.

Finally, on November 26, a hearing on the contempt citations was held. Evidence was adduced from Carol Beth Stitt and David Strauss surrounding the obtaining of the November 1, 1974 order and the subsequent return of Mrs. Stitt and the child to Kentucky pending the hearing. Mrs. Betty Strauss did not testify at the hearing. At the close of the evidence, the court entered an order that the “citation” against David Strauss be “quashed” and took the motion of Betty Strauss to quash under submission. On December 3, 1974, the motion of Betty Strauss to quash the citation for contempt was sustained.

Mr. Hoog filed his notice of appeal from these adverse rulings of the circuit court. While the appeal was pending, respondent Betty Strauss filed with this court a “Motion for Damages for Frivolous Appeal.” This motion was taken with the case.

Appellant essentially raises two points of error on this appeal: (1) that the trial court “abused its discretion in quashing the Citation for Contempt against David Strauss,” and (2) that the trial court "abused its discretion in sustaining Betty Strauss’ Motion to Quash her contempt citation without hearing evidence on the matters,” or, in the alternative, that the court erred “in failing to give Joseph A. Hoog leave to amend before sustaining” the motion to quash said citation.

In his first point, Mr. Hoog contends in essence that David Strauss committed civil contempt by appearing before the circuit court “ex parte” on November 1, 1974, and there obtaining the court’s order by “misrepresentation” and “fraud” upon the court while at all times “intending” to deprive him of substantial rights known to be granted to him by the decree of divorce and by so using the order once obtained. After reviewing the record, we find this point to be without merit.

From the evidence adduced at the hearing on the motions, it appears that David Strauss was contacted by telephone from Kentucky by his sister, Carol Beth Stitt, and was asked to assist in the custody matter before the Jefferson Circuit Court in Kentucky by agreeing to take custody of Catherine Marie pending further order of the St. Louis County Circuit Court. David Strauss agreed to take custody, and Catherine Marie was returned to Missouri on or about October 31, 1974. On November 1, 1974, an order was entered by the Circuit Court of St. Louis County giving Carol Beth Stitt “full care and custody” of Catherine Marie until further order on November 26, 1974. Joseph Hoog appeared at the home of Betty Strauss, where Catherine Marie was staying on the evening of November 1,1974, intending to take custody of Catherine Marie as per the 1972 divorce decree. Joseph had a copy of the divorce decree with him which he identified to David Strauss, who was present. David Strauss presented defendant with a copy of the St. Louis County Circuit Court order that he had obtained earlier that day and refused to allow Joseph to take custody of Catherine Marie. Catherine Marie was returned to Kentucky later that evening.

The purpose of a “civil contempt” proceeding is to preserve and enforce private rights created in a party litigant by court action by compelling obedience to a judgment or decree intended to benefit such a private party. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo.banc 1976); Frankel v. Moskovitz, 503 S.W.2d 428, 432 (Mo.App.1973); § 511.340, RSMo 1969, V.A.M.S.; Supreme Court Rule 74.33, V.A.M.R. The real party in interest in a civil contempt proceeding is the party litigant whose rights are claimed to have been violated. Jafari-an-Kerman v. Jafarian-Kerman, 424 S.W.2d 333, 341 (Mo.App.1967).

A motion for civil contempt is addressed to the sound discretion of the trial court, and the reviewing court will not disturb such a judgment in the absence of a clear abuse of discretion. Clark v. Francis B. Freeman Const. Co., Inc., 535 S.W.2d 531, 533 (Mo.App.1976); Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App.1975).

David Strauss testified at the hearing that he was unaware of the decree provisions creating custody rights in Mr. Hoog at the time he obtained the trial court’s order on November 1, 1974. He acknowledged that Joseph Hoog informed him of the decree provisions later on that date when the latter appeared at Betty Strauss’ house to take custody of Catherine Marie. David Strauss further testified that his actions on behalf of Mrs. Stitt in procuring the court order were intended to facilitate the return of Catherine Marie to school in Kentucky while at the same time complying with the “agreed order” issued by the Kentucky court and were never intended to “form any fraud on the court.”

Under such circumstances, we defer to the trial court’s opportunity and ability to judge the credibility of the witnesses. On the basis of the record, we cannot say that the trial court abused its discretion in quashing the application to cite David Strauss for contempt, and accordingly we rule this point against appellant. Clark v. Francis B. Freeman Const. Co., Inc., supra; Fulton v. Fulton, supra.

Appellant’s second point is akin to his first point. He contends that the trial court erred in sustaining Betty Strauss’ motion to quash his motion for contempt citation “without hearing evidence on the matters.” In the alternative, appellant contends that the trial court should have granted him “leave to amend” before sustaining respondent’s motion to quash. Appellant, in his motion to cite Betty Strauss for contempt, alleged that Betty Strauss “did conspire with the plaintiff [Carol Beth]” to remove Catherine Marie from his custody and from the State of Missouri and “failed and refused to reveal” the whereabouts of Carol Beth or Catherine Marie, although she at all times knew their location. Appellant failed to allege facts which, if found to be true, would show a conspiracy to violate some right flowing to appellant by virtue of the original divorce decree. See Middleton v. Tozer, 259 S.W.2d 80 (Mo.App.1953). Furthermore, there is no indication in the record, nor does appellant allege in his brief on appeal, that he attempted to introduce evidence on the matter. The matter was called, argued and submitted before the trial court on November 26, 1974. It does not appear from the record that appellant attempted to “amend” or sought “leave to amend” his motion. In any event, at this stage of the proceedings it was within the discretion of the trial court to permit an amendment.

We find no abuse of discretion in sustaining the motion to quash the contempt citation as it relates to Betty Strauss and accordingly rule this second point against appellant.

Lastly, we turn to respondent Betty Strauss’ motion for damages for frivolous appeal filed pursuant to Rule 84.19, Y.A. M.S. We have given due consideration to this motion as presented and find that appellant’s point on appeal relating to respondent Betty Strauss, although misperceived, does not appear to have been vexatiously or disingenuously pursued. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975); Means v. Sears Roebuck & Co., (No. 39,937, Mo.App., April 13,1976). Accordingly, we overrule respondent’s motion.

We have read the transcript on appeal and reviewed the briefs of the parties and the authorities relied upon, and, finding no error, we affirm the judgment of the circuit court.

The judgment is affirmed.

All the Judges concur.

      . For clarity, Mrs. Hoog will hereinafter be referred to as Mrs. Stitt. It is not evident from the record when Mrs. Hoog became Mrs. Stitt.

      . At the hearing appellant Mr. Hoog conceded that the action sought against David Strauss was for civil contempt rather than criminal for the part he allegedly took in frustrating defendant’s rights of temporary custody under the divorce decree.

      . Respondent David Strauss failed to file a brief in this cause.

      . Although a motion was made to cite Mrs. Stitt for contempt, the hearing did not deal with any contempt by Mrs. Stitt, and the record does not show that any order was made concerning her.

      . Appellant analogizes his “motion for contempt citation" to a pleading in a civil action and Betty Strauss’ motion to quash to a motion to dismiss.