author: McKAY, Justice.

text:
    John H. HURBROUGH, Appellant, v. Pat H. CAIN et al., Appellees.
    No. 1155.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 31, 1978.
    Rehearing Denied Oct. 3, 1978.

      J. S. Siskind, Byrnes, Myers, Adair, Campbell & Sinex, Houston, for appellant.
    D. W. Garrett, Liddell, Sapp, Zivley & Brown, G. Irvin Terrell, Baker & Botts, Houston, for appellees.
   ON MOTION FOR REHEARING

McKAY, Justice.

Our opinion delivered on July 27,1978, is withdrawn and the following opinion substituted therefor.

This is a suit on a letter agreement filed by appellant against appellees Cain and Hankamer seeking an accounting and actual and punitive damages for breach of contract. Cain and Hankamer filed separate motions for summary judgment alleging appellant’s cause of action was barred by the four year statute of limitation, and the trial court granted both motions and rendered judgment for Cain and Hankamer.

Appellant filed a sworn motion to strike portions of appellee Hankamer’s brief on the ground that the deposition of appellant referred to in the brief was not before the trial court at the summary judgment hearing nor before judgment was rendered. There is no reply or counteraffidavit to the contrary; therefore, such motion is granted.

Appellant alleged that he entered into an agreement in writing with Cain and Han-kamer for acquisition of certain overriding royalty interests in Anderson County; that Cain and Hankamer agreed that with respect to all leases acquired by either Cain or Hankamer within the defined geographical area within a five year period, and with respect to all acreage then owned by them within the defined area of interest, appellant would be assigned an overriding royalty of 3% of 8/8ths, as set out in the writing; that Cain and Hankamer owned at the time and acquired subsequently numerous leases and mineral interests within the defined geographical area of interest, all of which are subject to the rights of appellant; that oil and gas has been produced from said properties, and appellant is due royalties on past production; that appellant agreed to refrain from taking leases in the area of interest and to assign to Cain and Hankamer any leases he owned in such area, and Cain and Hankamer agreed that all operations of oil and gas properties in the area by or on account of the parties would be conducted in the name of Hankamer for the five-year period; that Cain and Hankamer permitted and caused oil and gas operations to be conducted in the name of Cain, and remain in his name, to appellant’s damage; that had appellant not withdrawn from any ownership or leasing activities in the area he would have received income of at least $500,000 thereafter over and above the value of the 3% royalty; that Cain and Han-kamer each received substantial amounts of money from oil and gas operations to which appellant was entitled under the terms of the letter agreement.

Cain and Hankamer answered by general denial, and alleged that appellant’s cause of action was barred by the statute of limitations and by equitable laches, and that the contract was void for failure of and lack of consideration; that if such contract did exist Cain and Hankamer each fully and completely performed all obligations under the contract.

The letter agreement follows:

“August 19, 1969
“Mr. Curtis Hankamer 714 Houston Bank and Trust Bldg. Houston, Texas 77002
“Dear Curtis:
“In connection with the new test well proposed in the Boggy Creek Field, my brother and I hereby forfeit any rights in the area except for the agreements set forth as follows:
“1. The area of interest is South %rds of the David Roberts Survey, Abstract 662, East 3/iths of the D. Clark Survey, Abstract 181, East s/4ths of the John Trimmier Survey, Abstract 773, and West %ths of the A. B. Patton Survey, Abstract 649, all in Anderson County, Texas.
“2. I will make available all my files relating to the area.
“3. On all leases acquired by you and/or Pat H. Cain or anyone else connected with either of you, within the area of interest, within a 5 year period, and all acreage now owned by the same parties within the area of interest, I shall be assigned an overriding royalty of 3% of Vsths, free and clear of all cost and expenses. However, in the event another lease or mineral owner participates in a well, then my royalty will be proportionately reduced. For instance, if Burk Royalty participated on a SO-SO basis on the Cook Lease, then my overriding royalty would be reduced to one and one-half (1½%) on that lease. Conversely, as long as you and your associates own 100% of the working interest, regardless of the net amount then I am to receive the 3% of %ths override.
“4. The operations are to be in the name of Curtis Hankamer.
“5. I shall be entitled to a copy of logs and other related data on all wells along with copies of access to the area at any time.
“6. I will refrain from taking leases in the area and any leases that I now own, if in effect, will be assigned to you and Pat Cain, subject to the overriding royalty in the amount as above provided.
“If the above is acceptable to you and Pat Cain, please sign in the space provided below and have Pat Cain execute, returning two completed copies for my and my brother’s files.
“The production payment owned by A. D. Hurbrough, Jr. is not affected by this agreement.
“Yours very truly,
/s/ John H. Hurbrough John H. Hurbrough
/s/ A. D. Hurbrough A. D. Hurbrough Jr.
“Accepted And Agreed To this 28th day of August, 1969
/s/ Curtis Hankamer Curtis Hankamer
/s/ Pat H. Cain Pat H. Cain”

Appellant's original petition was filed on May 20, 1976.

In answer to interrogatories Cain stated that “at some point during the five-year period specified in the August 19, 1969 letter, I jointly operated the following wells on leases at the times indicated . . .”

Then listed were (a) drilling of a dry hole on the Beard lease in September 1971; (b) drilling of another dry hole on the Beard lease in October 1971; (c) drilling of a dry hole on the Cook lease in May 1972; (d) the drilling but not the completion of the Daly No. 1 well in November 1973; and (e) the Todd A lease effective June 1, 1973, with two wells drilled between June 1, 1973, and the end of the five-year period, the Todd A. No. 4-dry hole and Todd A 5 completed as an oil well.

Cain further answered interrogatories that as of August 19, 1969, he did not own any working interest in the “area of interest,” but that subsequent to that date he acquired a working interest in (a) 50% of the working interest in the Daly lease by assignment dated March 12, 1970, which interest was later reduced to ¼⅛; (b) 50% working interest in the Cook lease by assignment dated March 12, 1970, later reduced to Vwths; (c) 50% working interest in the Beard lease by assignment dated March 12, 1970, later reduced to %6ths; (d) 50% working interest in the Gouger lease by assignment dated March 12, 1970, which was later reduced to Vwths; (e) 50% working interest in the Todd B lease by assignment dated June 1, 1973; (f) 50% working interest in the Todd A lease by assignment dated June 1,1973, and (g) a working interest in a few short-term leases on the Peter Holloway, Comer Todd and W. T. Todd tracts acquired during the five-year period, which leases were allowed to expire through nonproduction. Cain stated he had not taken any oil or gas from any lease in the “area of interest” over the last ten years for his own account, but that “all oil production currently attributed to my account is being sold to Exxon Pipe Line Co.,” and all casinghead gas is used for lease fuel and being flared.

Cain further said he had not personally made royalty payments, and that the value, to him, of oil and gas produced from the “area of interest” from August 19,1969, to present (November 1976) “is a substantial net loss.”

Cain’s affidavit in support of his motion for summary judgment states that as of August 19, 1969, he did not own any lease or acreage within the “area of interest”; that during the five-year period specified by the letter agreement he acquired from persons other than Hankamer the following leases and acreage within the “area of interest” on dates indicated: (1) Peter Holloway lease originally obtained on December 30,1969, and allowed to expire nine months thereafter; obtained again on October 8, 1970, expiring six months thereafter; (2) A. E. Todd Estate B lease — originally acquired on March 10, 1970, expiring 90 days thereafter; obtained again on June 30, 1970, expiring 90 days thereafter; (3) W. T. Todd, et al., lease of 197 acres in the David Roberts Survey A — 662—originally acquired March 10,1970, expiring 90 days thereafter; acquired again on June 30,1970, expiring 90 days thereafter; (4) W. T. Todd lease of 100 acres in the A. B. Patton Survey A-649— originally acquired on March 17, 1970, expiring 90 days thereafter; acquired again on June 30,1970, expiring 90 days thereafter. Cain further states in his affidavit that he first became an operator of a lease in the “area of interest” during the five-year period stated in the letter agreement with operations in his name during September 1971.

Hankamer’s affidavit in support of his motion for summary judgment states that as of August 19, 1969, he owned leases and acreage within the “area of interest” specified in the letter agreement as follows: (1) the first Peter Holloway lease; (2) J. F. Roberts lease; (3) the first A. E. Todd “B” lease; (4) A. E. Todd Estate “A” lease; and (5) E. L. Daly lease; that on August 19, 1969, and for at least six months thereafter, (1) the J. F. Roberts lease and the (2) A. E. Todd Estate “A” lease were producing oil or gas on which revenues were being received.

The Hankamer affidavit further says that during the five-year period specified in the August 19, 1969, letter agreement he acquired the following leases and acreage within the “area of interest” at the times indicated: (1) a second separate Peter Holloway lease — acquired on December 30, 1969, expiring nine months thereafter; (2) a second separate A. E. Todd Estate “B” lease — originally acquired on March 10, 1970, expiring 90 days thereafter; acquired again on June 30, 1970, expiring 90 days thereafter; (3) W. T. Todd, et al., lease of 197 acres in the David Roberts Survey A-662 — originally acquired on March 10,1970, expiring 90 days thereafter; acquired again on June 30,1970, expiring 90 days thereafter; (4) J. C. Beard tract — during the period from September 1, 1969, through September 1, 1970, he acquired 37 leases in this tract; (5) J. J. Gouger tract — during the period from September 1, 1969, through September 1, 1970, he acquired 17 leases in this tract; (6) W. L. Cook lease — acquired on December 11, 1969; (7) W. T. Todd lease of 100 acres in the A. B. Patton Survey A-649 — originally acquired on March 17, 1970, expiring 90 days thereafter; acquired again on June 30, 1970, expiring 90 days thereafter.

There is no answer nor affidavit in behalf of appellant in reply to the motion for summary judgment.

Appellant brings two points of error— first, that an affirmative defense of limitations is insufficient to support summary judgment, and, secondly, that the summary judgment proof failed to establish as a matter of law that there were no genuine issues of fact.

Appellant contends that an affirmative defense of limitations is insufficient to support a summary judgment, and argues that since no dates appear in his petition which affirmatively show that his cause of action is barred appellees may not rely on limitations as a bar to his suit. Appellant maintains that appellees should have specially excepted to his petition because it lacked the necessary dates, and that only when the dates of the transactions relied upon appeared in his petition could appellees assert limitations as a bar to his cause of action. We find no merit in this contention.

An affirmative defense of limitations will support a motion for summary judgment. Uniroyal, Inc. v. Vega, 455 S.W.2d 783, 784 (Tex.Civ.App. — San Antonio 1970, no writ); Gossett v. Tidewater Associated Oil Co., 436 S.W.2d 416, 421 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.); Jenkins v. Kimbro, 380 S.W.2d 189, 190 (Tex.Civ.App. — Austin 1964, writ dism’d); Simpson v. Simpson, 380 S.W.2d 855, 859 (Tex.Civ.App. — Dallas 1964, writ ref’d n. r. e.); Zapffe v. McElroy, 364 S.W.2d 299, 301 (Tex.Civ.App. — Dallas 1963, no writ); McDonald, Texas Civil Practice, sec. 17.26.2, at 135 (1971).

We turn now to appellant’s second point in which he contends that the summary judgment proof failed to establish as a matter of law that there were no genuine issues of fact. Art. 5527, Tex.Rev.Civ.Stat., provides that a suit upon a written contract shall be commenced within four years after the cause of action shall have accrued.

A defendant moving for a summary judgment has the burden of establishing as a matter of law that there are no genuine issues of fact as to any essential element in the plaintiff’s cause of action. Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970); Rule 166-A, T.R.C.P. The letter agreement required the parties to perform certain obligations during the period from August 19, 1969, to August 19, 1974. Appellant alleged that Cain and Hankamer breached certain parts of the agreement, and filed his suit on May 20, 1976. We are concerned here with when appellant’s cause of action accrued, and, therefore, when limitations began to run.

The general rule is that a cause of action accrues and limitations begin to run at the time of the breach of a contract. Shipp v. O’Dowd, 454 S.W.2d 845, 847 (Tex.Civ.App. — Waco 1970, writ ref’d n. r. e.); Maddox v. Oldham Little Church Foundation, 411 S.W.2d 375, 381 (Tex.Civ.App.— Tyler 1967, writ ref’d n. r. e.); 37 Tex.Jur. 2d Limitations of Actions, sec. 79, p. 220.

“Where plaintiffs’ pleading shows on its face that the suit was not filed within the statutory period, plaintiff is required ‘to allege such wrongful conduct’, as against the plea of limitation, as will entitle him to recover; and mere failure to disclose a cause of action, or mere concealment, is not fraudulent concealment. Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 696. It is incumbent upon plaintiffs to ‘either allege a fraudulent concealment’ or facts which in law would take the cause of action out of the bar of the statute. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 723.” Shipp v. O’Dowd, supra.

The appellant here did not allege there was fraudulent concealment or other fraud perpetrated upon him by Cain or Hankamer which would or might have affected the date of accrual of his cause of action and the beginning of the limitation period. Nor does appellant allege there was any concealment of the actions of Cain and Hankamer. There is no pleading alleging a fiduciary relationship.

The record discloses that all of the interest either owned or acquired by Hankamer was owned or acquired more than four years before appellant filed this suit. A careful reading of the record reveals that the two leases in which Cain acquired a working interest in 1973 were acquired from Hankamer, and that Hankamer had acquired such leases more than four years before the filing of appellant’s suit.

The letter agreement is silent as to the time of performance by Cain and Hankamer, i. e., when they were to convey to appellant such overriding royalty interest as set out in the letter. The language of the letter agreement is, “On all leases acquired by you [Hankamer] and/or Pat H. Cain or anyone else connected with either of you, within the area of interest, within a 5 year period, and all acreage now owned by the same parties within the area of interest, I shall be assigned an overriding royalty of 3% of %ths free and clear of all costs and expenses.” It is well settled that where a contract does not fix a time for performance the law allows a reasonable time for performance, and a reasonable time depends upon the circumstances in each case. Houston County v. Leo L. Landauer & Associates, Inc., 424 S.W.2d 458, 463 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.); Dauray v. Gaylord, 402 S.W.2d 948, 952 (Tex.Civ.App. — Dallas 1966, writ ref’d n. r. e.). However, the rule in Texas is that time is of the essence in a contract for the sale of a mineral interest. Campbell v. Barber, 272 S.W.2d 750, 752 (Tex.Civ.App. —Port Worth 1954, writ ref’d n. r. e.); Herber v. Sanders, 336 S.W.2d 783, 784 (Tex.Civ.App. — Amarillo 1960, no writ), and in our view time would be of the essence in a contract to convey a mineral interest as is involved here. Under the record here presented, with time being of the essence, it is our view that Cain and Hankamer would have been obligated to convey the mineral interest to appellant, under the letter agreement, within a reasonable time and that such reasonable time would not have extended the time of performance so as to defeat the plea of limitations. There is nothing in the record to indicate there was any problem or difficulty to prevent Cain and Hankamer from conveying an overriding royalty interest to appellant within a reasonable time after the execution of the agreement or the acquisition of any lease. We hold that a reasonable time had expired before the beginning of the limitation period.

A reasonable time has been defined as “such time as is necessary conveniently to do what the contract requires should be done. . . . such time as may be necessary in the circumstances for a reasonably prudent and diligent person to do what the contract requires him to do, having due regard for the rights of, and the possibility of loss to, the other party.” 17A C.J.S. Contract § 503(4), p. 788.

In any event appellant was to be the grantee of a conveyance of an overriding royalty interest within a reasonable time from the execution of the letter agreement, and within a reasonable time after Cain or Hankamer acquired additional leases in the area of interest. When no such conveyances were made and delivered to appellant within a reasonable time he could not wait more than four years thereafter to bring his suit without suffering the bar of the statute of limitations. It is said in Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 16 (1957): “. . . the fact that the law recognizes an implication of reasonable time of performance in a given contract does not mean that the latter is necessarily indefinite in this behalf so as to escape the statute.”

Cain’s answers to interrogatories reveal that he jointly operated some wells or drilled wells which included “(d) the drilling but not the completion of the Daly No. 1 well in November 1973; and (e) the Todd A. lease effective June 1, 1973, with two wells drilled between June 1,1973, and the end of the five-year period, the Todd A No. 4 dry hole and Todd A 5 completed as an oil well.” Cain further stated in his answers to interrogatories that he acquired a working interest in “(e) 50% working interest in the Todd B lease by assignment dated June 1, 1973; (f) 50% working interest in the Todd A lease by assignment dated June 1, 1973.” We hold that under the record it appears that the statute of limitations had not run on these interests as to Cain even though the interests were acquired by assignment or conveyance from Hankamer.

The summary judgment rendered by the trial court in favor of Hankamer is affirmed; the summary judgment rendered in favor of Cain insofar as it applies to the working interest in the Daly No. 1 well, the Todd B lease and the Todd A lease is reversed, and as to such interests the cause is remanded; in all other respects the judgment in favor of Cain is affirmed.

Affirmed in part and reversed and remanded in part.


source: Caselaw Access Project

author: PRESLAR, Chief Judge.

license: Public Domain

text:
    MAIN BANK & TRUST, Appellant, v. Stephen A. NYE, Appellee.
    No. 6723.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 6, 1978.
    Appellant’s and Appellee’s Motions for Rehearing Denied Oct. 11, 1978.

      Law Offices of John M. Killian, John M. Killian, San Antonio, for appellant.
    Akin, Gump, Hauer & Feld, Lee M. Simpson, Dallas, for appellee.
   OPINION

PRESLAR, Chief Judge.

Plaintiff below appeals from an order which sustained the objection of the Defendant to the jurisdiction of the Court under the provisions of Texas Rules of Civil Procedure 120a. We reverse.

Appellant as Plaintiff brought this suit on promissory note against Stephen A. Nye, the maker of the note, and Independence Drilling Corporation. Following a hearing on Appellee’s special appearance, the trial Court granted Appellant’s motion to sever the cause of action against Independence Drilling Corporation and sustained Appel-lee’s contest of the jurisdiction for lack of in personam jurisdiction. At the hearing, the only evidence presented was the testimony of one Conrad Temp and the introduction of an affidavit by Appellee, Stephen Nye. We hold that the affidavit is not admissible in evidence and, without it, the testimony of Mr. Temp is insufficient to sustain the trial Court’s findings of no personal jurisdiction.

Our research has disclosed no case directly in point on the admissibility of the affidavit at the hearing on the special appearance under Rule 120a. However, it is a well established rule that an ex parte affidavit denying the opposing party the right to cross-examine ranks with hearsay on the scale of evidence. Weart v. Mahone, 176 S.W.2d 197 (Tex.Civ.App. — Galveston 1943, no writ); Archie v. Knox, 224 S.W.2d 504 (Tex.Civ.App. — Austin 1949, writ ref’d n. r. e.); James v. Eagle Rock Ranch, 304 S.W.2d 471 (Tex.Civ.App. — Austin 1957, no writ); and 1 C. McCormick & R. Ray, Texas Evidence Sec. 787 (2d ed. 1956). Professor McDonald, in his 1970 revised version of 2 Texas Civil Practice (Section 9.05.3), said: “A strong argument could be made for dividing the questions into two stages: initially, to require the defendant to establish circumstances which, unless avoided, would render the purported service subject to attack; then, given such a situation, to require the plaintiff to establish the circumstances which render the defendant amenable to the service made.” He further suggests that the sworn motion filed on the special appearance normally would set forth the propositions basic to the defendant’s contentions, and he poses the question that, unless properly contested, should not such a sworn motion constitute prima facie, a showing of the verity of the facts stated under oath? The proposal has merit and, after all, the situation of the defendant in a special appearance is not too different from that of a defendant filing a plea of privilege which, under our rules, is prima facie, the right to have the venue sustained. This is a matter for the Legislature or the Supreme Court under its rule making powers. For the law as it stands now is that the burden is upon the defendant filing the special appearance under Rule 120a to produce evidence to show the lack of amenability to the long arm process. Roquemore v. Roquemore, 431 S.W.2d 595, Tex.Civ.App., no writ; Gathers v. Walpace Company, Inc., 544 S.W.2d 169 (Tex.Civ.App. — Beaumont 1976, writ ref’d n. r. e.); Law, Snakard, Brown & Gambill v. Brunette, 509 S.W.2d 671 (Tex.Civ.App. — Beaumont 1974, writ ref’d n. r. e.); Thode, Special Appearance, 42 Tex.L.Rev. 279 (1964).

As indicated, we are of the opinion that, in the case before us, without the affidavit there is no evidence to sustain the trial Court’s findings of fact as to several necessary elements of Defendant’s position. Hearsay evidence is no evidence at all and will not support a judgment. James v. Eagle Rock Ranch, supra. Appellee has not met his burden and the judgment must be reversed.

We are further of the opinion that in the interest of justice the case should be remanded for a new trial on the personal jurisdiction issue. This, for the reason that it appears that the case has not been fully developed and it is apparent that not all of the available evidence has been adduced. The error in this case resulted from the mistaken belief of the Appellee, shared by the trial Court, that affidavit evidence constituted competent evidence at a hearing on special appearance. Under such circumstances, it appears that remand is proper. Otten v. Snowden, 550 S.W.2d 758 (Tex.Civ. App. — San Antonio 1977, no writ).

The judgment of the trial Court is reversed and the cause is remanded for trial on the personal jurisdiction issue.


author: MASSEY, Chief Justice.

text:
    D. W. D. et ux., Appellants, v. R. D. P., Appellee.
    No. 18001.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 14, 1978.
    Rehearing Denied Oct. 12, 1978.

      Dixon & Petrovich and Ted Mayo III, Port Worth, for appellants.
    Simon & Simon and W. Weir Wilson, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Suit below was for the award to R.D.P. by change of custody of the minor child of R.D.P. from her maternal grandparents, D.W.D. and his wife.

Upon verdict of the jury the trial court, on July 26, 1977, rendered judgment which appointed R.D.P. “managing conservator” of his minor child. By necessary implication D.W.D. and his wife were removed and relieved of their privileges and duties as “managing conservators” earlier granted and imposed in a judgment of July 22,1975. Such earlier judgment was one which decreed the divorce of R.D.P. from his former wife, invested D.W.D. and his wife with office as “managing conservators”, and invested R.D.P. and his former wife (mother of the minor child), from whom he was divorced, as “possessory conservators”.

From the July 26,1977 judgment D.W.D. and his wife appealed. There was no appeal by the child’s mother, her status as “possessory conservator” not having been altered by the judgment.

We reverse and render.

Our action is compelled by the want of any evidence upon trial below that there had been, since July 22, 1975, any material or substantial change in the circumstances of the child in question or in the circumstances of the “managing conservators” which would make it injurious to the welfare of the child for their rights of custody to be continued.

In this case the question of “material and substantial” change of circumstances (of the child or her custodians from what those circumstances had been at time D.W.D. and his wife were granted custody by the divorce judgment) of sufficient degree that preservation of what might be called the status quo would be injurious to the welfare of the interested minor child must be raised as an issue to be tried and resolved by the jury before there would be any occasion to consider the evidence concerning whether the appointment of a new and different custodian would be a positive improvement for the child.

On September 1, 1975 this became the condition of our Texas law relative to change of custody suits (following any prior court decree creating rights relative thereto in individuals who were invested with official status as conservators of the person of a minor child). Tex. Family Code Ann. § 14.08 “Modification of Order”. The amendment so making the law became effective September 1, 1975. Without discussion we take occasion to state that under the “old law”, i. e., the law as existent prior to September 1,1975, evidence of a material change in the circumstances of a parent of a minor child who had not the right to its custody usually made out a prima facie case.

As observed in our prior opinion in O. v. P., 560 S.W.2d 122 (Tex.Civ.App., Fort Worth 1977, no writ), at page 126:

“The September 1, 1975 amendment added two very important requirements that must be met before a change of child custody can be ordered; i. e., that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child. The person seeking the change of custody has the burden of proof under Tex. Family Code Ann. § 14.08(c) (1975). We note that the additional requirements have made a petitioner’s burden much more difficult.”

In the present case the evidence was rather fully developed. Thereby was shown that the only change in conditions which could possibly be material was addition of one and one-half years to the ages of the child’s custodial grandparents, D.W.D. and his wife. They were on July 12, 1977, the time of the trial, aged 60 and 54, respectively. The minor child was at time of the trial a little over five years of age. There was no evidence that there had been any change in the physical or mental condition of D.W.D. or his wife between the time they were made custodians of the child in July 1975 and the time of the trial. During the period there was no change in their treatment of the child; indeed the evidence of the child’s father was that her grandparents were “spoiling” the child and failing to discipline her in July of 1975 and to time of trial. During this same period there was no evidence of anything other than normal growth and development of the minor child. There was evidence of occasions for medical attention, but nothing different from those usual and to be expected as applied to any child of the same age. There was nothing done or lacking to be done relative to the attention and care given by her custodians on these occasions.

The foregoing did not suffice as evidence having sufficient probative force and effect to raise the issue of whether preservation of the so-called status quo would be injurious to the welfare of the minor child.

While there was evidence tending to raise the material question as of a time earlier than that on which suit for the change of custody was brought by R.D.P. it was agreed and conceded that the difficulties which did so had been amicably resolved long prior thereto. No issue existed by time suit was instituted. The resolved difficulty had been in the failure by D.W.D. and his wife to accommodate and cooperate with R.D.P. in the latter’s exercise of his rights of visitation under the judgment of July 22,1975. (The author’s personal views relative to sufficiency of such evidence to raise issues which if favorably found for a plaintiff in a change of custody suit would support a decree in change of custody are set forth in a case antedating the 1975 amendment of § 14.08 of the Texas Family Code. Wood v. Wood, 510 S.W.2d 399 (Tex.Civ.App., Fort Worth 1974, no writ).

The circumstances point up deficiencies in the law with which our legislature and the courts continue to wrestle. Here a young soldier with little if any rank and with minimal income obtained a divorce from his wife. By agreement of all interested parties the maternal grandparents became the legal custodians of the parties’ minor child. Their right to custody was decreed as part of the divorce judgment. Later the young soldier, having risen in rank so that he could afford to care for his child, having made an excellent marriage, and having established the kind of home in which a young child should be reared, sought to have his child with him as part of his family. The grandparents, having experienced development of emotional ties to the child more in the nature of the parental than grandparental, resisted any change. In this setting the suit for change of custody was brought and tried.

The wisdom of a Solomon would be necessary to correctly resolve the case even before the amendment of law effective September 1, 1975. Necessity for that wisdom has in Texas been removed from the courts and its judges by the amendment. There is no longer the necessity or even the right for a trial court to consider the welfare and best interests of the child unless the parent seeking custody can first show that the continuance of the status quo would be injurious to the child. That is now the “threshold inquiry” to be resolved in trial of a change of custody case.

Here we hold that by the evidence in the trial court it was not even raised as an issue. That being the legal situation it was, under the law, improper for any consideration in the trial court of the issue upon whether a change of custody would best serve the interests of the child.

Under the circumstances, proper point of error having been raised, it is the duty of this court to reverse the judgment by which the child’s parent was made the custodian, i. e., invested as “managing conservator”.

All points of error have been examined. Save for those essentially raising the point of error upon which the case must be reversed, they are overruled as either not having been preserved for purposes of the appeal or as without merit.

Judgment of the trial court is reversed, and judgment rendered in restoration of the status of the parties with attendant rights and responsibilities to those provided by the trial court’s judgment dated July 22, 1975, including the immediate right to entitlements of a managing conservator as provided by law.


author: BARDGETT, Judge.

text:
    Blanche CRENSHAW, Appellant, v. CITY OF BELLE, Missouri, Respondent.
    No. 60304.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.
    Rehearing Denied Oct. 10, 1978.
    Isadore I. Lamke, Briegel & Kimme, Union, for appellant.
    Dan L. Birdsong, Routh, Thomas & Birdsong, Rolla, for respondent.
   BARDGETT, Judge.

After opinion by the Missouri Court of Appeals, Springfield district, and on appellant’s motion, we transferred this case to reexamine the question of whether a person owning land outside but adjacent to the city limits is an abutting property owner to a city street which dead-ends at such land so as to entitle such owner to prohibit the city from vacating the street or have damages for its closing. The parties have reargued the case here. We include in our opinion the opinion of the court of appeals, Titus, J., without quotation marks and add thereto citations in support which have come to the attention of this court.

The board of aldermen of Belle, a fourth class city situate in Maries and Osage Counties (1975-1976 Official Manual, State of Missouri, p. 1220), enacted an ordinance which vacated Apple Avenue “starting 223.0 feet north from the South line of Missouri Star (?) Route ‘J’ for School Purposes.” Claiming the vacation denied her any reasonable access “to a general scheme of roads [and] to the streets of Belle,” plaintiff filed a three-count petition against the city seeking damages and an injunction. Upon the pleadings and supporting affidavits filed, the city moved for summary judgment. Rule 74.04, V.A.M.R. Summary judgment was entered in favor of the city on all counts of the petition and plaintiff appealed.

Apple Avenue, which we surmise runs north and south, is a public street in Belle. All real estate situate on and abutting both the east and west sides of Apple Avenue where vacated is owned by Maries County R-II School District. Plaintiff owns 102 acres in Osage County. This property is outside the city but is adjacent to the north municipal limits and lies directly north of the north dead end of Apple Avenue or what was the north dead end of the street before the vacation.

In part, sec. 88.673, V.A.M.S., states: “The board of aldermen [of fourth class cities] shall have power to create, open and improve any public . . . street, avenue, alley or other highway, old or new, and also to vacate or discontinue the same whenever deemed necessary or expedient; provided, that all damages sustained by the citizens of the city or the owners of the property therein shall be ascertained as prescribed in that portion of this chapter relating to the condemnation of private property for public use; and provided further, that whenever any public . . . street, avenue or alley, or other highway, shall be vacated, the same shall revert to the owners of the adjacent lots in proportion as it was taken from them; . . .”

It is settled in Missouri that property is not damaged by the vacation of a street unless it abuts or fronts upon that part of the street vacated, or is cut off entirely from the general system of streets or highways. In a legal sense the terms “abut” or “abutting” or “fronts” generally do not include property adjoining the dead end of a roadway, alley, street or avenue. This is based upon recognition that under the statutes it is only property which abuts or fronts on a street that is taken by the opening of same or that is chargeable with the costs of improvements. The reasoning would be particularly applicable to plaintiff’s property which is outside the city limits. State ex rel. State Highway Commission v. Meier, 388 S.W.2d 855, 860 (Mo. banc 1965); Wilson v. Kansas City, 162 S.W.2d 802, 804 (Mo. 1942); Arcadia Realty Co. v. City of St Louis, 326 Mo. 273, 280, 30 S.W.2d 995, 997[2] (1930); Kingshighway Supply Co. v. Banner Iron Works, 266 Mo. 138, 148-151, 181 S.W. 30, 32[2] (1915); Leslie v. Mathewson, 257 S.W.2d 394, 397 (Mo. App. 1953); Amitin v. Izard, 252 S.W.2d 635, 638[3] (Mo.App. 1952); Christy v. Chicago, B. & Q.R. Co., 240 Mo.App. 632, 637, 212 S.W.2d 476, 479[4] (1948); Campbell v. City of Glendale, 211 S.W.2d 519, 520-522[l, 2] (Mo.App. 1948). Similarly, plaintiff has no standing to complain of the partial vacation of Apple Avenue because sec. 88.673, supra, provides for damages only to “the owners of the property therein,” i. e., property within the city limits and plaintiff’s property lies outside the city.

Other jurisdictions have decided cases analogous to this one and the opinions support the conclusion reached here.

In Good Deal of Ivy Hill, Inc. v. City of Newark, 32 N.J. 263, 160 A.2d 630 (1960), plaintiff occupied property outside of defendant-city’s corporate limits. Within the city a street dead-ended at the city limits. Plaintiff’s property, as in the case at bar, adjoined the city boundary where the street dead-ended, but was located wholly outside of the city. Plaintiff brought suit against the city claiming rights of ingress and egress as an abutting property owner. The Supreme Court of New Jersey denied plaintiff relief, holding at 633: “Plaintiff’s property is foreign to Newark, its lessor-owner could not be burdened with an assessment for opening or improving the street, and he has no easement rights therein. As a logical consequence of these factors neither plaintiff nor his lessor could defeat vacation of the Parkway.” The court based much of its holding in deciding that the plaintiff was not an abutting owner, thus not legally chargeable with assessments for construction and improvements. For authority, the New Jersey Supreme Court cited Kingshighway Supply Co. v. Banner Iron Works, supra, which held that the owner of premises at the terminus of an alley is not a legal abutter and therefore he cannot be charged for improvements. See also: Thomas v. Jultak, 68 Wyo. 198, 231 P.2d 974 (1951), and House v. City of Greensburg, 93 Ind. 533 (1883).

It should also be noted that here, as in City of Newark, supra, the platted street, Apple Avenue, was never used for ingress or egress from plaintiff’s property nor was it a public street which connected the boundaries of Belle with another public road used by the public and forming a general traffic communication-road system. Indeed, here, the facts leave some doubt as to whether the vacated portion of Apple Avenue ever existed as anything more than a platted street easement to the city limits. If appellant’s property is landlocked, she has the provisions of sec. 228.340, RSMo 1969, available to her for the establishment of a way of necessity.

Judgment affirmed.

MORGAN, C. J., FINCH, DONNELLY, RENDLEN and SEILER, JJ., and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.


author: FINCH, Judge. SEILER, Judge,

text:
    STATE of Missouri, Respondent, v. Acie BALDWIN, Appellant.
    No. 60481.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.
    Rehearing Denied Oct. 10, 1978.

      Robert C. Babione, Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, David L. Baylard, Asst. Attys. Gen., Jefferson City, for respondent.
   FINCH, Judge.

Defendant was convicted of forcible rape, § 559.260, and of carrying a concealed weapon, § 564.610. Having been found to be subject to § 556.280 because previously convicted of a felony, defendant was sentenced by the trial court to terms of ten and two years, respectively, to be served consecutively. On appeal to the Missouri Court of Appeals, St. Louis District, the judgment was affirmed in an opinion by Simeone, C. J., with a dissent by Kelly, J., as to the conviction on the charge of carrying a concealed weapon. On application of defendant, we ordered the case transferred and we now decide it as though here on direct appeal. Art. V, § 10, Mo.Const. We affirm.

In his brief and in oral argument defendant contended that the trial court erred (1) in denying his motion for judgment of acquittal on Count I at the close of all of the evidence because the evidence did not support the charge of forcible rape; (2) in failing to sustain his motion for judgment of acquittal on Count II at the close of all the evidence because the State’s evidence failed to prove two elements of the crime of carrying a concealed weapon, i. e., (a) that the knife was in fact a dangerous and deadly weapon, and (b) that defendant intended to use the knife as a dangerous and deadly weapon; (3) in trying the separate counts of forcible rape and carrying a concealed weapon in a single trial; and (4) in admitting testimony of a police officer that the distance between a tavern and the victim’s home “took one and one-half minutes to drive” because said testimony was “irrelevant to any legal or factual issue before the trial court.”

Subsequent to oral argument defendant filed a motion to set aside the submission and to be permitted to assert the additional point that the court record concerning the prior conviction, relied on as the basis for involving the Second Offender Act, was insufficient for that purpose because it did not show any motion for new trial or allocution, did not show any waiver thereof and did not show sentencing of defendant. The request to set aside the submission was denied but defendant was granted leave to file a brief asserting this additional point. The State was allowed to file an additional brief in response thereto.

I. Submissibility of Charge of Rape

The crux of defendant’s attack on the submissibility of the State’s case on the rape charge is directed at whether the evidence supports a finding that the carnal knowledge was by force and against the will of the prosecutrix. Generally, these issues are to be resolved by the jury except where the reviewing court can declare as a matter of law that the evidence adduced by the State was insufficient to sustain a finding of these elements of the crime. State v. Garrett, 494 S.W.2d 336, 338 (Mo.1973). In reviewing this issue of submissibility, it is the duty of the appellate court to view the evidence in the light most favorable to the State. State v. Garrett, 494 S.W.2d at 337.

Defendant complains that the State’s case rested almost entirely on the testimony of the prosecutrix and that the circumstances leading up to the alleged rape suggest that corroborating testimony was necessary. The basis for this argument is that there was evidence that they had been drinking and dancing together in a bar prior to the occurrence, that they had been acquainted for about two years and that she cooperated by removing her clothing prior to the intercourse. While these are circumstances the jury may weigh in determining the credibility of the prosecutrix, the rule in this state is that a conviction in cases of rape may be had upon the uncorroborated evidence of the prosecutrix. It is only in those cases where the evidence of the prosecutrix is of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the mind of the court clouded with doubts, that she must be corroborated or a judgment cannot be sustained. State v. Burton, 355 Mo. 467, 196 S.W.2d 621, 622-23 (1946).

The prosecutrix testified that when she got ready to leave the bar and walk home the defendant offered to walk home with her. Near her home she was pushed into an alley by defendant who then said to her, “I want some.” She responded, “Man, you got to be kidding. Cold as it is?” There was testimony in the case that the temperature that night was 24 degrees.

Prosecutrix testified that she attempted to dissuade him by telling him that her house was warmer but he told her he was “going to get it here” in the alley, and if she didn’t do it, he was going to hurt her. He kept one hand on her shoulder and the other one in his right jacket pocket. He pushed her down towards a small pile of sawdust and ordered her to pull off her coat and lie on it. She again suggested that they go up to her house, but he replied, “I’m out on the street, I will do what I want to do.” She protested that she didn’t want to have to lie down there but he insisted. While she removed her coat, she continued begging him not to do this, but he said, “I’m going to make it good for you. I know you ain’t going to tell nobody.” She said she wasn’t going to tell anyone; that she knew he meant business. She was hoping that the police who usually patrol that alley might show up. Defendant tried to help her take her pants off. She pulled her clothes off and laid down naked from the waist down and the defendant engaged in intercourse. She admitted she did not “yell” or “holler” because there “wasn’t no people around there in hollering range in the project” and that to “yell” for help in that neighborhood would be fruitless.

She testified that she did not consent to the act of intercourse of her own free will but because of a fear of being hurt. She explained her invitation to defendant to go to her house by testifying that she knew that her children and her 44-year-old male cousin were there and if she could get him to go there, she could be helped.

After defendant left her, she immediately ran home, where she reported what had happened to her children and her cousin, and then notified the police. The children testified that when she arrived home she was crying and looked like she had been attacked. She was upset and she had sawdust in her hair and on her clothes.

After the police arrived at her home, she related what had happened and accompanied them to the alley where she said the attack occurred. Her coat and panties were recovered there. She then accompanied the police officers to the tavern from whence she had left with the defendant and identified him for the police officers as the rapist.

In the light of prosecutrix’ testimony, we conclude that corroboration of prose-cutrix’ testimony was not required. Instead, this case is controlled by that line of cases which hold that consent induced by fear is no consent and that the question of whether the prosecutrix submitted to the demands of the defendant charged with forcible rape because of fear of great bodily harm to herself in the event she physically resisted is a jury question. State v. Garrett, 494 S.W.2d at 338; State v. Gray, 423 S.W.2d 776, 780 (Mo.1968); State v. Beck, 368 S.W.2d 490, 493 (Mo.1963); State v. Schuster, 282 S.W.2d 553, 556 (Mo.1955); and State v. Boone, 519 S.W.2d 27, 29 (Mo.App.1975).

We conclude that the State’s evidence as hereinbefore set out made a submissible case and we rule this point against defendant.

II. Submissibility of Charge of Carrying a Concealed Weapon

Defendant’s second point is that his motion for judgment of acquittal on the charge of carrying a concealed weapon should have been sustained at the close of all the evidence because the State failed to make a sufficient showing (a) that the knife was in fact a dangerous and deadly weapon, and (b) that defendant intended to use the knife as a dangerous and deadly weapon.

It was argued in the dissenting opinion in the court of appeals and in defendant’s application to transfer that this is a circumstantial evidence case. We do not agree. There was direct evidence that when arrested defendant had the steak knife wholly concealed in his pants pocket. There was direct evidence of defendant’s threat to harm prosecutrix. In addition, there was circumstantial evidence as to possible use of that knife under the particular circumstances, including time and place that he possessed said hidden knife. Where the evidence, as here, is partially direct and partially circumstantial, it is not necessary to give a circumstantial evidence instruction and the test as to submissibility is not that of a purely circumstantial evidence case. In deciding submissibility we accept the State’s evidence as true and we give the State the benefit of all reasonable inferences deducible therefrom, disregarding all evidence and inferences to the contrary. State v. Stapleton, 518 S.W.2d 292, 296 (Mo. banc 1975).

In a prosecution under § 564.610, a submissible case is made “when the state’s evidence or reasonable inferences therefrom demonstrate (a) the carrying of a dangerous or deadly weapon, (b) concealed on or about the person, (c) along with an intent to so conceal.” State v. Achter, 514 S.W.2d 825, 827 (Mo.App.1974). See also State v. Jordan, 495 S.W.2d 717, 720 (Mo.App.1973). These were the issues submitted to the jury in Instruction No. 7 which corresponds to MAI-CR 13.10.

Defendant does not dispute the fact that the steak knife was found concealed in his pants pocket and he does not contend that the evidence was insufficient to permit the jury to find that he intended to conceal the knife in his pocket. The only real issue raised concerning the submissibility of the concealed weapon charge is whether there was evidence from which the jury could find that the knife found on defendant was a dangerous and deadly weapon.

In providing for punishment for the offense of carrying concealed weapons, § 564.610 enumerates certain weapons which are dangerous and deadly per se and require no jury finding to that effect. State v. Dorsey, 491 S.W.2d 301 (Mo.1973). These weapons include any kind of firearms, a bowie knife, a springback knife, and other things. The statute also makes punishable the concealed carrying of “other similar deadly weapons.” When the weapon is not one specifically enumerated in the statute, the issue as to whether it is dangerous and deadly must be submitted to the jury unless the court can declare as a matter of law that under the evidence in the case the jury could not have concluded that the weapon was dangerous and deadly.

It is obvious that there are many useful and practical items which are carried by persons for peaceful purposes. They are not normally thought of as dangerous and deadly weapons. Pocket knives, hammers, screwdrivers, wrenches, cutting tools and letter openers are examples of such articles. Other items such as butcher knives, steak knives, and ice picks, though not usually carried concealed on the person, are useful utensils utilized for peaceful purposes. Such everyday instruments become dangerous or deadly only when they are used or carried for use as a weapon. The determination of whether in a particular case such instrument is dangerous and deadly would depend on a variety of factors — the nature of the instrument itself, the circumstances under which it is carried, including time, place, and situation in which defendant is found in possession, the manner in which it is carried, the particular person carrying it, and perhaps other factors such as possible peaceful uses therefor which the possessor might have.

Several courts have examined these surrounding circumstances in determining whether such instruments are dangerous. For example, in State v. Ebron, 122 N.J.Super. 552, 301 A.2d 167, cert. denied, 63 N.J. 250, 306 A.2d 453 (1973), defendant was convicted under a statute similar to ours of carrying a concealed knife. The court, conceding that all knives are not per se dangerous, concluded that it was proper in that case to submit to the jury the issue of whether the knife was dangerous, saying, 301 A.2d at 169-70:

“A knife may be used as a tool in certain trades, hobbies or sports. Thus, a cook or chef may carry the tools of his trade, a barber may carry a straight razor, or a hunter, a camper or a Boy Scout may have a legitimate use for a hunting knife. As we interpret the statute it outlaws the carrying of a knife, even if it would otherwise be a useful object, where the surrounding circumstances, such as the time, place and situation under which the defendant was found in possession of it, or any alteration of the knife itself, indicate that his possession is for the purpose of using it, then or later, unlawfully against another. [Citations omitted.]”

In State v. Green, 62 N.J. 547, 303 A.2d 312 (1973), defendant and a companion were observed in the act of shoplifting and then leaving the store. The defendant and his companion were apprehended and a search revealed that each had a pocketknife in his possession. Defendant’s knife had a single folding blade which was approximately three and one-half inches long and would not lock when open. Although defendant’s conviction was reversed for instructional error, the court held that the evidence would have sustained defendant’s conviction for possession of a “dangerous knife” even though the knife was not declared by statute to be a dangerous and deadly weapon per se. The court said, 303 A.2d at 319:

“Plainly the possession of any knife is not an incriminatory offense and a knife, popularly known as a pocketknife, penknife or jackknife, commonly carried for personal utility, convenience or other lawful purpose is not a ‘dangerous knife’ per se. That is not to say, however, that such a knife, irrespective of the length of its blade or the circumstances under which it is carried, may not be a lethal weapon and should be excluded as a matter of law from the term ‘dangerous knife’ the possession of which is interdicted by statute. Distilled from the rationale of our relevant statutes and the prevailing deci-sional law is a reasonable conclusion that a knife which is not dangerous per se will be a ‘dangerous knife’ if the purpose of possession is its use as a weapon.”

In Scott v. United States, 243 A.2d 54 (D.C.Ct.App.1968), defendant was stopped for questioning in the lobby of a movie theater. He had a thin folding knife up the sleeve of his coat. In upholding the conviction of defendant for carrying a concealed weapon, the court recognized that the knife was not deadly and dangerous per se since it could be used as a tool in certain trades or hobbies, but it went on to observe, 243 A.2d at 56:

“The statute, as we interpret it, outlaws the carrying of an otherwise useful object where the surrounding circumstances, such as the time and place the defendant was found in possession of such an instrument, or the alteration of the object, indicate that the possessor would use the instrument for a dangerous purpose.”

In Gilmore v. United States, 271 A.2d 783 (D.C.Ct.App.1970), defendant had in his possession a concealed “peg” knife when he was apprehended in a bus terminal at 3 a. m. The court held that notwithstanding defendant’s explanation that he used the knife in his work as a cement bag handler, the surrounding circumstances shown in evidence were sufficient to enable the jury to have inferred and found that defendant, if necessary, intended to use the knife for a dangerous purpose. In so holding, the court stated at 784:

“We said recently:
Section 22-3204 does not prohibit the carrying of such instruments [knives] for a legitimate purpose. The statute, as we interpret it, outlaws the carrying of an otherwise useful object where the surrounding circumstances, such as the time and place the defendant was found in possession of such an instrument, or the alteration of the object, indicate that the possessor would use the instrument for a dangerous purpose.”

In Clarke v. United States, 256 A.2d 782 (D.C.Ct.App.1969), defendant was convicted of carrying a dangerous and deadly weapon after he was found to have been carrying a straight razor concealed on his person. He was apprehended by an officer after a report from a man that defendant might have robbed a girl. When the officer walked toward defendant, he began to run. In upholding his conviction, the court said at 786:

“The test is ‘[whether] the purpose of carrying the object, under the circumstances, is its use as a weapon.’ [Citation omitted.] This may be shown by an examination of the time and place the defendant was found carrying it, among other circumstances. [Citation omitted.] Moreover, in the absence of any explanation from defendant, the conceivable legitimate reasons for carrying such an instrument in that setting are a proper subject of inquiry. [Citation omitted.] The jury could well have concluded that appellant was not carrying the razor on the street for use ‘as a tool in [a] certain [trade] or [hobby] or * * * for utilitarian reasons.’ [Citation omitted.]”

Applying the test articulated in these cases, we conclude that in view of all the circumstances shown in evidence, including the nature of the knife, where it was found on defendant’s person, the time and place that defendant was carrying the concealed steak knife and what had occurred a short time earlier involving defendant and prosecutrix, the jury was justified in finding that the steak knife was a dangerous and deadly weapon.

To review briefly, at about 10:00 p. m. while walking prosecutrix home, defendant had forcibly raped her. At the time he warned her that if she did not consent he was going to hurt her. He did not display a weapon but at the time of the threat he had one hand on her shoulder and one hand in his jacket pocket where he kept it until he had her on the ground. After the rape he returned immediately to the Interracial Bar from which he had departed with prosecu-trix. He remained there until apprehended approximately one hour later near the entrance. When arrested, he had in his pants pocket a six inch steak knife with serrated blade. No witness had seen the knife until it was removed from defendant’s pants pocket.

Based on the foregoing evidence, the jury could have concluded that defendant had the steak knife in his pocket at the time he threatened prosecutrix and then raped her or it could have concluded that he acquired the steak knife after he returned to the Interracial Bar. Either conclusion, considering all the facts and circumstances shown in evidence, would have justified the jury in finding that the knife in defendant’s pocket on this occasion was a dangerous and deadly weapon. If it was in defendant’s pocket at the scene of the rape, the jury could have found that defendant could and would have used the knife to hurt Mrs. Brodie, as he threatened, if he did not succeed in having intercourse with her. On the other hand, if the jury concluded he did not have the knife then but obtained it after he returned to the bar, if would be justified in finding that he acquired it and placed it in his pocket for the purpose of using it as a weapon, if necessary, either to resist arrest for the rape or to protect himself from possible reprisals by Mrs. Brodie’s family or friends. According to Mrs. Bro-die, her cousin, who was at her apartment when she came in after being raped, had gone to the bar to seek out and confront defendant.

The time, the place, the circumstances, the rape which was committed, and the nature of the knife, all were such that they could indicate to the jury that the knife was not being carried as an innocent tool of defendant’s trade or something he customarily carried in his pocket for peaceful purposes. Rather, they were such as to indicate that defendant carried it and would use it as a dangerous weapon. The jury was justified in so finding. On review, we cannot say as a matter of law that the jury could not have so found therefrom. Accordingly, we rule this point against defendant.

III. Contention That Trial of the Two Counts in a Single Trial Was Plain Error

In the trial court defendant filed a motion to sever the two counts in the information and to try them separately. Thereafter, defendant voluntarily withdrew that request before the trial court took any action thereon. As a result, the two counts were tried together.

After defendant was convicted, he made no complaint in his motion for new trial about the two counts being tried together. He raises the complaint for the first time on appeal, claiming that the trial court committed plain error in permitting the counts to be tried in a single trial.

Under these facts, we find no plain error under Rule 27.20(e), V.A.M.R. We rule this point against defendant.

IV. Complaint as to Rebuttal Evidence of Detective Nation

There was testimony in the case as to the distance between Mrs. Brodie’s apartment (near which the rape occurred) and the Interracial Bar and the time it would take to walk from one to the other. Mrs. Brodie testified that it would take five minutes to walk-ten at the most. Defendant’s only witness testified that it would take at least twenty minutes to walk to the apartment and back to the bar. Detective Nation was called in rebuttal. He was not permitted to testify how long it would take to walk because he had not walked it. He then was asked how long it took him to drive his automobile between the two places. Defendant objected that the question was not relevant. The objection was overruled and the officer stated it was a minute and a half to two minutes, saying it was a distance of three blocks.

General objections provide nothing for appellate review. State ex rel. West v. Diemer, 255 Mo. 336, 164 S.W. 517, 521 (1914); McIlroy v. Hamilton, 539 S.W.2d 669, 675 (Mo.App.1976). In addition, no prejudice is demonstrated. We overrule this contention.

V. Contention That Defendant Was Not Shown to Be Subject to the Second Offender Act

The information charged defendant with a prior conviction, alleging:

“That ACIE BALDWIN in the City of St. Louis, State of Missouri, on the 13th day of October, 1969, in the Circuit Court was duly convicted of the offense of Carrying Concealed Weapon, and in accordance with said conviction was duly sentenced by said Court to an imprisonment in the Workhouse of the City of St. Louis for the term of one year and was duly imprisoned in the said Workhouse of the City of St. Louis aforesaid, on October 14, 1969, in accordance with said sentence; and that the said ACIE BALDWIN was paroled from said Workhouse of the City of St. Louis on December 31, 1969.”

At trial, outside the hearing of the jury, the following entry from the records of the Circuit Court of the City of St. Louis was read into the record:

“Monday, October 13, 1969. 1864-R. State of Missouri v. Acie Baldwin. On Information for one prior conviction of a felony and Carrying Concealed Weapon. Now on this day comes the Assistant Circuit Attorney for the State and the defendant herein, in person and in the custody of the Sheriff, and in the presence of William Nicholls waives right to a trial by jury. Whereupon, the trial of this cause proceeds without jury and the testimony of the witnesses for the State and for the defendant are heard and concluded and cause is taken as submitted. Whereupon, the Court finds defendant, Acie Baldwin, guilty of Carrying Concealed Weapon and affixes and assesses punishment at one year in the St. Louis Medium Security Institution. It is further ordered by the Court that the State have and recover of said defendant the costs in this cause expended and that hereof execution issue therefor.”

An official with the Medium Security Institution of the city of St. Louis testified that defendant entered that institution in connection with Case No. 1864-R on October 14, 1969, and was paroled on December 31, 1969.

After defendant advised that he had no testimony to offer in connection with the question of a prior conviction, the trial court made this finding:

“ * * * Acie Baldwin, defendant herein, was on October 13, 1969, convicted of the offense of Carrying [a] Concealed Weapon, a felony, in the Circuit Court of the City of St. Louis, and was sentenced on said conviction to one year in the Medium Security Institution where he was committed on October 14, 1969, and in accordance with said sentence from which he was paroled on December 13, 1969, and on the basis of this finding of fact, the Court finds the provisions of the Second Offender Act of the State of Missouri are applicable to this case.”

Subsequent to oral argument of this case in this court, defendant, for the first time, asserted that it was plain error for the trial court to find him subject to the Second Offender Act because, according to defendant, the evidence disclosed that he had not been sentenced in 1969 for the offense of carrying a concealed weapon. This, says defendant, deprived him of his right to have the jury determine the amount of punishment which should be assessed, resulting in manifest injustice and a miscarriage of justice.

Defendant argues the court entry concerning case No. 1864-R, read into the record in this case, shows that the trial court, in No. 1864-R found defendant guilty of Carrying Concealed Weapon and assessed his punishment at one year in the St. Louis Medium Security Institution but did not sentence him. In addition, defendant argues, there was no motion for new trial and no allocution and counsel asserts that the file in said case shows no waiver of a motion for new trial or allocution.

We reject defendant’s claim of plain error. In the first place, it is not a condition precedent to sentencing that the record show the filing of a motion for new trial. A defendant has the right to file a motion for new trial but is not compelled to do so. If he does not file such a motion within the time allowed by the applicable rule, the right to file such motion is lost. The record need not show express waiver of the right to file such a motion.

Neither is defendant entitled to relief on the basis that the record in case No. 1864-R does not show allocution. Section 546.570 requires allocution only after conviction by a jury. State v. McClanahan, 418 S.W.2d 71 (Mo.1967); State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279 (1940).

Defendant’s argument that he was not sentenced in case No. 1864-R is based upon the fact that the judgment does not specifically say he was “sentenced” but instead recites that the court “affixes and assesses punishment at one year in the St. Louis Medium Security Institution.” While it would have been crystal clear if the court had used the term “sentences,” we conclude that the judgment as a whole shows that defendant was sentenced. The court did not say simply that it assessed punishment at one year. It recited that it “affixes and assesses” punishment at one year. It then went on and allowed jail time prior to conviction and provided for assessment of costs and for execution. These are characteristics of a judgment in which the defendant is sentenced, not an entry in which the court simply indicates what amount of confinement it will fix. The judgment was so treated at the time because defendant on the following day entered the Medium Security Institution and began serving his sentence. Judge Gaertner so interpreted the earlier judgment when he made his finding in this case that defendant had been convicted and sentenced previously for Carrying Concealed Weapon. Obviously, counsel of defendant so read the judgment until very recently because no question was raised at the trial or in defendant’s motion for new trial or in the brief in the court of appeals or even in oral argument in this court.

The cases cited by defendant in his supplemental brief do not show that he is entitled to relief on this point. For example, State v. Gordon, 344 S.W.2d 69 (Mo.1961), involved a factual situation wherein defendant, after conviction, was given a suspended sentence. He was not sentenced then or later. Therefore, the court held that such proceedings would not support the application of the Second Offender Act. Likewise, in State v. Crate, 493 S.W.2d 1 (Mo.App.1973), the court held that there was no pleadable or provable prior conviction when in an earlier proceeding imposition of sentence was suspended and defendant placed on probation after he had been convicted.

The judgment is affirmed.

MORGAN, C. J., BARDGETT, DONNELLY and RENDLEN, JJ., and HOUSER, Special Judge, concur.

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

SIMEONE, J., not participating because not a member of the court when cause was submitted.

SEILER, Judge,

concurring.

There is no direct evidence that the defendant had the knife at the time of the rape. The prosecutrix did not see or feel a knife or claim that defendant said he had a knife. Defendant had one hand in his right hand coat pocket (which might have been to keep his hand warm — it was eight degree below freezing — or it might have been that defendant wanted the prosecutrix to believe he had some sort of weapon concealed in his coat pocket), but the first time anyone saw a knife in the possession of the defendant was an hour later at a different location, under entirely different and innocent circumstances and surroundings, when he was arrested and a knife was found in his left front pants pocket. In my opinion, this affords no basis whatever for inferring that defendant had this knife with him during the rape occurring at an earlier time at a different place.

The prosecutrix said defendant said if she did not submit, he would hurt her. But this is no evidence that defendant had a knife or any other weapon. Being a male and bigger and stronger than prosecutrix, there were many ways defendant could have hurt her without using a knife. The best that can be said about the evidence in this case as establishing that defendant had the knife at the time of the rape, even if everything the prosecutrix said is accepted as true, is that such a conclusion is rank speculation, resting on inferences which are no more than possibilities, and is far short of being sufficient to support a verdict of guilty. The evidence is equivocal — it points nowhere with any degree of probability, like a bobbing compass, not susceptible of a definite reading. The presumption of innocence is reduced to empty rhetoric if all the state need show to convict is that the defendant might have had a weapon on his person at the time of the rape. If the weapons conviction had to rest on its having taken place at the .time of the rape, I would dissent. The insufficiency of the evidence on this aspect of the case is even more apparent when it is contrasted with the evidence supporting the conviction of carrying a concealed weapon at the time of the arrest.

As to the situation when arrested, unquestionably defendant did have the knife in his left front pants pocket, out of sight, at this particular time. When the jury heard this evidence, therefore, they were not asked to speculate as to the fact of possession or to base its existence on a possibility. They had substantial evidence before them on which to draw their conclusion. Given this solid premise, the argument can then be made that since defendant had committed the crime of rape (or so this same jury found), he had the weapon by the time he was arrested for the purpose of using it to resist arrest or against prose-cutrix’s relatives bent on revenge. On this basis, therefore, I concur in affirmance.

      . All statutory references are to RSMo 1969 unless otherwise indicated.

      . Judge Simeone, then a member of the Missouri Court of Appeals, St. Louis District, has since become a member of this court.


author: DONNELLY, Judge. FINCH, Judge,

text:
    STATE of Missouri, Respondent, v. Johnny Lee MASON, Appellant.
    No. 60515.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1978.
    Rehearing Denied Oct. 10, 1978.

      Robert A. Simons, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   DONNELLY, Judge.

Appellant was convicted of carrying a concealed weapon under § 564.610, RSMo 1969, in the Circuit Court of Jackson County, and was sentenced to fifty days in the Jackson County Department of Corrections. On appeal, the Court of Appeals, Kansas City District, reversed and remanded for new trial. The case was then transferred to this Court, by order of this Court, and will be decided here “the same as on original appeal.” Mo.Const. Art. V, § 10.

On October 17, 1975, appellant was stopped for exceeding the speed limit on highway 1-70 eastbound just outside of Kansas City. Appellant’s young son and a friend were traveling with him. Appellant removed a handgun from his pocket and dropped it to the ground after being asked to submit to a frisk. The officers recovered the gun, the subject of this charge.

Appellant testified that he was taking the gun to his sister in St. Louis, at her request, and that he intended to drop the gun at her house and drop his son at his mother’s house in St. Louis before he and his friend continued on to Chicago for a week-end visit. Appellant readily admitted having the gun on his person, and stated that when he was asked to submit to a frisk he panicked and tried to dispose of it.

At the conclusion of the evidence, the prosecutor submitted Instruction No. 5 in the form of MAI-CR 13.10. Appellant requested a modified instruction which would include an additional element requiring that in order to support a conviction the jury must find that “the defendant was not a person traveling in a continuous journey peaceably this [sic] state.” The trial court heard arguments concerning the applicability of the element sought to be added by appellant and the court then rejected appellant’s request on the following basis: “The whole question * * * is an interpretation of the language of the statute which exempts from the criminal provisions of Section 564.610: ‘Persons traveling in a continuous journey peaceably through this state.’ * * * The Court, relying upon the definition of the statutory language as extracted from Webster’s Unabridged Dictionary, concludes that the factual situation of an individual such as this defendant passing from point to point within the state of Missouri is not a person traveling in a continuous journey through the state.”

The determinative question is whether a person whose journey begins in Kansas City and is to end in Chicago is a person “traveling in a continuous journey peaceably through this state.”

The exemption contained in § 564.610, RSMo 1969, for “persons traveling in a continuous journey peaceably through this state” has remained unchanged since it was first enacted in 1909. § 4496, RSMo 1909. Prior to 1909, the statutory exemption applied “to persons moving or traveling peaceably through this state.” § 1275, RSMo 1879. The present exemption has not been interpreted as to its meaning, except insofar as State v. Cooper, 563 S.W.2d 784 (Mo.App.1978), interpreted it to encompass a journey which both began and was to end outside the state. The prior exemption was interpreted by two cases, relied on by appellant to sustain his contention that the present exemption applies to a person whose journey begins in Missouri and is intended to end outside the state, as was appellant’s.

In State v. Cousins, 131 Mo.App. 617, 110 S.W. 607 (1908), a defendant who boarded a train in Oregon County, Missouri, with the intention of traveling to Arkansas, was held entitled to an instruction acquitting him on the charge of carrying a concealed weapon if he was “peaceably traveling in the state, or just about starting on a trip.” In State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907), a defendant traveling from Memphis, Tennessee, to Hayti, Missouri, was recognized as entitled to such an instruction if he was traveling peaceably.

Respondent contends that the change made by the legislature in the exemption, adding the words “continuous journey”, was intended as a response to the Cousins and Miles cases, and that the present exemption is intended to apply only to travelers whose journeys both begin and end outside of Missouri, as in Cooper. Respondent further contends that the definitions of “continuous” and “through” indicate that the exemption is to apply only to travelers who are merely passing through Missouri and who do not begin or end their trips in the state. As defined in Webster’s Third New International Dictionary, “continuous” means:

“1 a: characterized by uninterrupted extension in space: stretching on without break or interruption * * *
b: characterized by uninterrupted extension in time or sequence: continuing without intermission or recurring regularly after minute interruptions * * ”

The word “through” is defined by the same dictionary as:

“1 a * * * (3) — used as a function word to indicate extension from one end or boundary (as of a place or area) to another [a road * * * the desert] [a path * * * the woods]”

However, the word “through,” as used in another criminal statute, § 563.070, RSMo 1969, has been interpreted as indicating movement from point to point within a broad expanse or area within the State of Missouri. In State v. Smith, 431 S.W.2d 74, 78 (Mo.1968), a prosecution for transporting a female person through this state for the purpose of practicing prostitution, a transportation from the City of St. Louis to St. Louis County was held to be “through or across this state * * Cases from other jurisdictions indicate generally that a traveler need not be traveling from a point outside the state to another point outside of it, but may be traveling on a journey within the state’s borders and still meet the exemption requirements. 79 Am.Jur.2d Weapons & Firearms § 17, p. 22; 94 C.J.S. Weapons § 9c, p. 497. The emphasis in these cases is on “journey” or “traveler” and not on the distance traveled.

We believe appellant’s journey from Kansas City to Chicago clearly raises the issue of whether he is in an exempt class, and should have been submitted to the jury. Respondent contends that appellant’s planned stops in St. Louis remove the exemption. However, appellant was not apprehended with a gun during one of these stops but was clearly journeying at the time he was stopped. We do not believe he was taken out of the class of exempted persons by these intended stops.

We note that appellant did not timely file his motion for new trial. Therefore, the alleged error in the instruction must be reviewed under Rule 27.20(c), the plain error rule. State v. Collett, 542 S.W.2d 783 (Mo.banc 1976). We have reviewed the record in this case and believe, under the facts and circumstances, that the error in the instruction resulted in manifest injustice or miscarriage of justice.

The judgment is reversed and the cause remanded for new trial.

MORGAN, C. J., and SEILER, J., and SIMEONE, Special Judge, concur.

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

BARDGETT and RENDLEN, JJ., dissent and concur in separate dissenting opinion of FINCH, J.

FINCH, Judge,

dissenting.

I respectfully dissent.

A statute making it an offense to carry concealed weapons in public assemblages was adopted in 1874. Laws 1874, p. 43. At that time there was no exception for travelers.

In 1879 the legislature enacted § 1275, RSMo 1879, which created such an exception. It followed § 1274, the section which prohibited the carrying of concealed weapons, and stated:

“The next preceding section shall not apply to persons moving or traveling peaceably through this state..."

As noted in the principal opinion, this exemption was interpreted and applied in State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907) and in State v. Cousins, 131 Mo.App. 617, 110 S.W. 607 (1908). In Cousins, the exception was held to be applicable to a traveler who was engaged in a journey originating in Missouri and terminating in another state, and in Miles, to one on a journey originating outside Missouri and terminating in Missouri.

In the next legislative session following the decision in Cousins, the statute was amended, Laws 1909, p. 452, so that the exception was changed from “persons moving or traveling peaceably through this state” to “persons traveling in a continuous journey peaceably through this state.” The exception has remained unchanged up to the present time.

The state argues that when the legislature amends a law, it is presumed that they intended to change the existing law, citing In re Tompkins’ Estate, 341 S.W.2d 866, 872 (Mo.1960). It points out that the amendment occurred immediately following the Miles and Cousins decisions and argues that it was a legislative response to those decisions whereby the exemption was amended so as to be applicable only to travelers who are passing through the state and who do not begin or end their journey in Missouri.

The principal opinion rejects that contention. It says that “[t]he determinative question is whether a person whose journey begins in Kansas City and is to end in Chicago is a person ‘traveling in a continuous journey peaceably through this state.’ ” It concludes that the answer is “yes” and that defendant was entitled to the instruction which tendered that issue. By so holding, the principal opinion necessarily holds that the legislative amendment in 1909 did not change the meaning of the exemption for travelers. The legislature accomplished nothing by the amendment.

I am unable to concur with that conclusion. I am of the opinion that the legislature did intend by the 1909 amendment to make a change in the exemption. The legislature does not consider and pass amendments with the idea that they are meaningless and useless acts which accomplish nothing. They are adopted for a purpose and that purpose is change. What, then, would that change be? The words “moving or traveling . . . through this state” were deleted and in lieu thereof the words “traveling in a continuous journey . through this state” were substituted. The deleted words had been judicially held in Miles and Cousins to cover a journey from a point outside Missouri to a point in Missouri and a journey from a point in Missouri to a point outside Missouri. The new language employed indicates an intention to impose a more restrictive requirement for the exemption to be available. “Traveling in a continuous journey . . . through this state” connotes a more stringent test than “moving or traveling . . . through this state.” If that premise is valid, then necessarily the change from the journeys adjudged covered in Miles and Cousins would be a journey merely passing through Missouri enroute from a point outside the state to a point outside the state. In my view that is what the present exemption means. As the principal opinion points out, one meaning of “through” as defined in Webster’s Third New International Dictionary means “from one end or boundary . to another. . . .” When the legislature preceded the word “through” by the words “traveling in a continuous journey” as a substitute for “moving or traveling,” it was intending to say, in my view, traveling in a continuous journey from one boundary to another boundary of the state. In other words, they meant entirely through the state.

In interpreting the exemption for travelers provided in § 564.610, we should keep in mind that it is contained in the proviso portion of the statute rather than in the general portion of the statute which defines the offense. When that is the case, the rule is that the proviso is to be strictly construed with doubts resolved in favor of the general provisions of the statute rather than the exception. State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399 (banc 1954); City of Nevada v. Bastow, 328 S.W.2d 45 (Mo.App.1959). Construing the exemption so as to limit it to journeys beginning and ending outside the state is consistent with that principle. The statute was enacted to prevent a practice of carrying concealed weapons because that practice led to frequent killings or woundings. The rationale for the traveler exemption has been generally accepted to be the need during earlier days of our nation for a traveler to protect himself when he went to areas where he was a stranger and needed the protection of his gun. Only five states in addition to Missouri still retain such an exemption. It should not be construed so as to erode the primary objective of the statute of seeking to prohibit the carrying of concealed weapons.

The principal opinion cites and relies on State v. Smith, 431 S.W.2d 74 (Mo.1968), and the interpretation of the word “through” in that case. In my opinion that ease is distinguishable and does not dictate the result in this case. In the first place the word was used in the portion of the statute defining the offense, not in an exception as in this case. That, as previously noted, calls for a different standard in construing the word. Secondly, as the court in Smith noted, the word “through” is a functional word capable of several different meanings depending on its use. The court in Smith held that in seeking to prevent the transportation of females for purposes of prostitution, the state sought to deal with such movement from any one spot to another in the state and that distance traveled and the points of origin and destination were immaterial in dealing with such offense. That is substantially different from the word “through” in an exemption portion of the statute seeking to prohibit the carrying of concealed weapons. The exemption, as previously noted, grew out of the early history of our country during which it was considered necessary to permit one to carry a gun for his own protection when he traveled from home to strange areas in which he might need that protection. That considerable distinction, coupled with the legislative history of the statute we construe, justifies ascribing a different meaning to “through” in § 564.610 from that adopted in Smith in construing the statute dealing with the transportation of females for purposes of prostitution.

Finally, as pointed out in the principal opinion, defendant did not preserve this question of alleged error in the instructions in a timely motion for new trial. Therefore, the question must be reviewed and relief given, if at all, under the plain error rule. Rule 27.20(c), V.A.M.R. In my view, such refusal did not result in manifest injustice or a miscarriage of justice. Defendant’s own testimony discloses that he never intended to take this concealed weapon from Kansas City to Chicago. He testified that he was taking the gun for the express purpose of delivering the gun to his sister in St. Louis so that she could keep it for her protection. The fact that he planned, after dropping the gun, to continue on to Chicago does not make this a trip on which defendant was carrying the gun from a point in Missouri to a point outside Missouri. So far as the concealed weapon is concerned, this was a trip, according to defendant himself, that was to be made wholly within "this state. The principal opinion does not hold that such a trip would fall within the exception in § 564.610. Failure to give the instruction which defendant requested cannot be plain error under these circumstances.

I would affirm the conviction.


author: DONNELLY, Judge.

text:
    BRECKENRIDGE HOTELS CORPORATION et al., Appellants, v. George C. LEACHMAN et al., Respondents.
    No. 60298.
    Supreme Court of Missouri, en banc.
    Sept. 12, 1978.
    Rehearing Denied Oct. 10, 1978.
    Mark A. Brown, Sumner, Hanlon, Sumner, MacDonald & Nouss, Clayton, for appellants.
    George W. Lang, II, Associate County Counselor, Thomas W. Wehrle, County Counselor, Clayton, for respondents.
   DONNELLY, Judge.

This case involves a tax assessment on real property belonging to appellants. Appellants’ “First Amended Petition for Refund of Tax Paid Under Protest,” filed under § 139.031, RSMo 1969, was dismissed by the trial court on the grounds it “fails to state a claim upon which relief can be granted * *

There are several issues raised and briefed by the parties. We decide only the question whether the petition states a claim upon which relief can be granted, under § 139.031, against George C. Leachman, the Collector of St. Louis County, Missouri.

According to the petition, appellants constructed a new hotel facility and made changes in existing hotel buildings in 1974; the property was then placed on the assessment rolls at what the county assessor determined to be ⅛ of its fair market value as of January 1, 1975; the county assessor does not assess all properties in St. Louis County as of January 1 of each year, as required by § 137.080, RSMo 1969, at ½ of their then fair market value but instead allows existing properties to remain on the assessment rolls without change until a county-wide reappraisal is made; the last county-wide reappraisal was conducted in 1964; construction costs in St. Louis County have substantially increased since 1964; and no compensating adjustments to reduce assessments of new construction in order to bring them in line with older existing construction are made with the result that new construction is consistently discriminated against in favor of old existing construction.

Appellants allege that such discrimination violates the Fourteenth Amendment to the Constitution of the United States and Art. I, § 10 of the Constitution of Missouri.

This case is ruled by Sioux City Bridge Company v. Dakota County, Nebraska, 260 U.S. 441, 445, 446, 447, 43 S.Ct. 190, 191, 67 L.Ed. 340 (1923), wherein the United States Supreme Court held that intentional and arbitrary assessment of the property of one owner for taxation at its true value, in accordance with the state constitution and laws, while all other like property is systematically assessed much lower, is a violation of the equal protection of the laws, and said:

“The Supreme Court [of Nebraska] does not make it clear whether it thinks the discrimination charged was proved or not, but assuming the discrimination, it holds that the Bridge Company has no remedy except ‘to have the property assessed below its true value raised rather than to have property assessed at its true value reduced.’ The dilemma presented by a case where one or a few of a class of taxpayers are assessed at 100 per cent, of the value of their property in accord with a constitutional or statutory requirement, and the rest of the class are intentionally assessed at a much lower percentage in violation of the law, has been often dealt with by courts and there has been a conflict of view as to what should be done. There is no doubt, however, of the view taken of such cases by the federal courts in the enforcement of the uniformity clauses of state statutes and constitutions and of the equal protection clause of the Fourteenth Amendment. The exact question was considered at length by the Circuit Court of Appeals of the Sixth Circuit in the case of Taylor v. Louisville & Nashville R. R. Co., 6th Cir., 88 F. 350, 364, 365, and the language of that court was approved and incorporated in the decision of this Court in Greene v. Louisville & Interurban R. R. Co., 244 U.S. 499, 516, 517, 518 [37 S.Ct. 673, 61 L.Ed. 1280.] The conclusion in these and other federal authorities is that such a result as that reached by the Supreme Court of Nebraska is to deny the injured taxpayer any remedy at all because it is utterly impossible for him by any judicial proceeding to secure an increase in the assessment of the great mass of under-assessed property in the taxing district. This Court holds that the right of the taxpayer whose property alone is taxed at 100 per cent, of its true value is to have his assessment reduced to the percentage of that value at which others are taxed even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standard of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law. In substance and effect the decision of the Nebraska Supreme Court in this case upholds the violation of the Fourteenth Amendment to the injury of the Bridge Company. We must, therefore, reverse its judgment.”

We hold that appellants have stated a claim upon which relief can be granted. We decline to rule at this time the other questions raised.

The judgment is reversed and the cause remanded for proceedings not inconsistent with Sioux City Bridge.

MORGAN, C. J., BARDGETT, FINCH, RENDLEN and SEILER, JJ., and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the Court when cause was submitted.