author: MOORE, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Robert K. RAMSEY, Appellee.
    No. 926.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 30, 1976.
    Rehearing Denied Oct. 28, 1976.

      Jack C. Morgan, Morgan, Shumpert, Huff, Mosley & Co., Kaufman, for appellant.
    Robert K. Ramsey, Terrell, for appellee.
   MOORE, Justice.

This is an eminent domain proceeding. Appellant, Southwestern Bell Telephone Company, condemned an easement lying on the East side of appellee’s 154-acre tract of land for the purpose of laying an underground communication cable. The tract condemned was 10 feet in width and 3,515 feet in length and covered an area of 35,-152.92 square feet or .807 of an acre. The easement extends along the west side and is contiguous to State Highway 34 connecting the City of Terrell, Texas, with Interstate Highway 20 and lies within the city limits of the City of Terrell. Appellee, Robert K. Ramsey, stipulated that the telephone company had a right to condemn the easement, and that all jurisdictional requirements had been met and that the only matter in controversy was the issue of damages. Prior to trial appellee filed a Motion in Limine judicially admitting that he owned not only the 154 acres adjacent to the easement but owned a total of 320 acres adjacent and contiguous to the ten foot easement and that the land was used as a unit for grazing purposes. Appellee further stipulated that he waived damages to the remainder of the 320 acres except for a strip of land 240 feet wide abutting and adjoining the easement running along the entire length of the easement and containing 843,669 square feet or 19.36 acres. Appellee also alleged in his Motion in Limine that the market value of the 240' strip adjacent to the easement and being near Highway 34 was much higher than the over all per acre value of the remaining land on which he waived severance damages and prayed for an order prohibiting the telephone company from showing that he owned other land other than the 240' strip adjacent to the easement. The trial court granted the Motion in Limine and the cause was tried and submitted to the jury as if the entire remainder of appel-lee’s property, after the taking of the 10-foot easement, consisted of only the 240' strip containing 843,669 square feet or 19.36 acres. In response to the special issues, the jury found (1) that the market value of the 35,152.92 square feet of land taken for the easement immediately before the taking was 6<p per square foot; (2) that the market value immediately after the taking was 4$ per square foot; (3) that the market value per square foot of the remaining 843,669 square feet lying 240 feet deep adjacent to the easement immediately before the taking was 6<t per square foot; and (4) the market value immediately after the taking was 4$ per square foot. The trial court rendered judgment on the verdict for appel-lee in the amount of $17,576.44. After its motion for judgment non obstante veredicto and its motion for new trial had been overruled, the telephone company perfected this appeal.

We affirm.

Before discussing the points of error, we will undertake to summarize some of the pertinent facts established by the evidence. The record reveals that at the time of condemnation appellee used the 320-acre tract of land as a unit for grazing purposes. All value witnesses, including a witness called for the telephone company, testified that the highest and best use of the 10' easement condemned, as well as the adjoining 240' strip, was for commercial or industrial purposes and that the 250 feet adjoining the highway was reasonably adaptable for such purposes and that other land in the immediate vicinity had been sold and used for such purposes.

All value witnesses were interrogated with reference to a plat prepared by appel-lee showing the 10' easement running along the property line abutting the highway and the 240' strip adjacent thereto. A summary of their testimony, together with the verdict of the jury is as follows:

By the first, second and fifth points, the telephone company complains of the action of the trial court in permitting appellee’s expert witnesses to testify as to the market value of the 10' easement taken. Appellant objected on the ground that the 10' easement taken was not a self-sufficient economic unit and as such it had no independent value. The telephone company contends that under the holding of City of Tyler v. Brogan, 437 S.W.2d 609 (Tex.Civ.App., Tyler 1969, no writ), the exclusive method of valuing a long, narrow strip such as this was to take the average per acre value of the entire 320 acres owned by appellee and then apply such average value per acre to the 10' easement as a proportionate part of the whole.

We fail to find any authority in support of appellee’s broad proposition that in all instances of a partial taking, the exclusive method for valuing the part taken must be as a part of the whole. Contrary to appellant’s contention, the holding in Brogan does not stand for such proposition. The rule that the part taken may be valued as a part of the whole, and not as if it stood alone, has been imposed in some cases because ordinarily this relationship gives the part taken—particularly where it is a narrow strip—a greater value. 4A Nichols on Eminent Domain, sec. 14.231. The purpose of the rule is to protect the condemnee and assure him a just award, because otherwise the part taken would normally be useless and valueless if considered by itself. City of Tyler v. Brogan, supra. Since the foregoing rule is obviously for the condemnee’s benefit, such method of valuation is optional and constitutes only one of the several methods of valuation available to the con-demnee. Consequently, the landowner in the instant case was not compelled to value the easement taken as a part of the whole, but had a right to introduce testimony showing market value as if the part taken stood alone as severed land. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), rehearing denied, 126 Tex. 618, 89 S.W.2d 979 (1936).

The fact that the 10' easement taken was not economically self-sufficient is not relevant to the issue of value. The question of whether the tract taken is or is not economically self-sufficient is a matter to be considered only in determining whether or not the landowner may claim severance damages to the remainder of his land. City of Richardson v. Smith, 494 S.W.2d 933, 939 (Tex.Civ.App., Dallas 1973, writ ref’d n. r. e.); Southern Pipeline Corporation v. Deitch, 451 S.W.2d 814 (Tex.Civ.App., Corpus Christi 1970, error granted); Calvert v. City of Denton, 375 S.W.2d 522 (Tex.Civ.App., Fort Worth, writ ref’d n. r. e.). The mere fact that the 10' easement taken was not economically self-sufficient would not require it to be valued as a part of the whole. We perceive no error in the action of the court in overruling the objections or in refusing to strike the testimony valuing the easement taken as if it stood alone as severed land.

By the third point of error, the telephone company urges that the trial court erred in permitting the landowner to waive severance damages to the remainder of his 320-acre tract of land, except for the arbitrarily designated 240-foot strip adjacent to the 10' easement condemned. As we view the record, the proposition is without merit.

Ordinarily a landowner has a right to claim severance damages to the entire remainder provided it is contiguous and there is unity of use. City of Austin v. Capitol Livestock Auction Co., 434 S.W.2d 423 (Tex.Civ.App., Austin 1968), modified and aff’d 453 S.W.2d 461 (Tex.1970); City of Denton v. Hunt, 235 S.W.2d 212 (Tex.Civ.App., Fort Worth 1950, writ ref’d n. r. e.). This is not to say, however, that a landowner is compelled to claim severance damages to his entire remaining lands. In instances where a substantial portion of the remainder is suitable and adaptable to commercial or industrial use, or some other specific use, and the other part of the remainder is not suitable or adaptable to the same purpose, the landowner is permitted to claim severance damages to only that portion thereof suitable and adaptable to specific uses. Minyard v. Texas Power & Light Co., 271 S.W.2d 957, 959 (Tex.Civ.App., Fort Worth 1954, writ ref’d n. r. e.).

Under the pleadings and the evidence, it is clear that the appellee proceeded upon the theory that the taking of the easement along the highway frontage caused him to suffer damages to the most valuable part of his land. The evidence shows that land adjacent to a busy highway is much more valuable than that situated further back from the highway especially where its best and highest use is for commercial or industrial purposes. He conceded that the taking of the easement did not interfere with the use of, or caused damages to, any of his remaining land except the 250' strip having highway frontage on State Highway 34. In view of his admission that the telephone company had a right to condemn and that the only issue in controversy was the value of the easement taken and the damages to the remainder consisting of the 240' strip adjacent to the easement, the burden of proving damages to the land was cast on him as the landowner. State v. Walker, 441 S.W.2d 168, 170 (Tex.1969). Since the landowner had the burden of proving damages, he had a right to waive severance damages to any part or all of his remaining land. State v. Meyer, 403 S.W.2d 366 (Tex.1966); State v. Watson, 448 S.W.2d 720 (Tex.Civ.App., Waco 1969, writ ref’d n. r. e.). Where a landowner, as here, waives severance damages to a part of the remainder, the portion on which he does not waive damages will be considered as the remainder. Thus, in the instant case, the 240' strip adjacent to the easement must be considered as the entire remainder.

Irrespective of whether a landowner draws an arbitrary line showing the perimeter of his claim for severance damages, he would be permitted to arrive at the same result by offering proof showing that only a specified area was damaged. A landowner, as well as the condemnor, can always offer proof showing how far the easement affected the whole tract of which only a single strip was taken.

For a landowner to claim severance damage to his entire remainder would, in some instances, border on the absurd. Suppose, for instance, a landowner owned a strip of land 10 miles long and 1 mile wide and that an easement such as this was condemned across one end of the property. In this situation the landowner would be hard put to argue that the easement taken resulted in damages to that part of the land at the opposite end situated 10 miles away.

We have been unable to find any authority, and have been cited none, denying a landowner the right to waive severance damages to a part of his remaining land, nor have we found any authority which would require a landowner to claim damages to all of his remaining land. We see nothing inherently wrong in allowing a landowner to claim severance damages only to a specified part of his land adjacent to the part taken. Appellant’s third point is overruled.

Under the sixth point appellant complains of the action of the trial court in admitting, over its objection, appellee’s Exhibit No. 1. Appellant contends that the exhibit “misrepresented” to the jury that the appellee owned only a 240' strip of land adjoining the 10' easement, whereas appel-lee admitted he owned 320 acres of land. We overrule the point.

Appellee’s Exhibit No. 1 consists of nothing more than a map or a plat showing Highway 34 with the easement colored in dark red and the 240' strip colored in light red. In view of our conclusion that a landowner is authorized to waive severance damages to a part of his remainder, the exhibit showing nothing more than that part of the remainder on which severance damages was claimed was clearly admissible.

Next, appellant complains of the action of the trial court in refusing to strike the testimony of appellee’s value witness, E. P. Curry, because he gave no reason as to why or how the 240' strip adjacent to the easement suffered severance damages, citing the holding in Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App., San Antonio 1951, writ dism’d).

Generally, where a party claims severance damages to land, he must show how and why the taking caused damages to the remainder and the relationship of the same to market value. Tennessee Gas & Transmission Co. v. Zirjacks, supra; Texas Electric Service Co. v. Vest, 310 S.W.2d 733 (Tex.Civ.App., El Paso 1958, writ ref’d n. r. e.). Obviously, this rule applies to the party claiming surface damages and not to his value witnesses. Where the facts of the damages to the residue are in the record and the witnesses show themselves to be acquainted with the land burdened by the taking, there is no compelling reason for each value witness to first detail the “how” and “why” of his opinion before giving his opinion of value. Under those circumstances their testimony translates the damages into diminished market value and is therefore admissible. State v. Scarborough, 383 S.W.2d, 839 (Tex.Civ.App., Texarkana 1964, writ ref’d n. r. e.); City of Houston v. McFadden, 420 S.W.2d 811 (Tex.Civ.App., Houston [14th Dist.] 1967, writ ref’d n. r. e.); Southwestern Bell Telephone Co. v. Griffin, 429 S.W.2d 576 (Tex.Civ.App., Texarkana 1968, n. w. h.). In this instance the witness, E. P. Curry, testified that he was familiar with the condition of the land at the time he made his appraisal. The record contains testimony given by other witnesses that the 240' strip adjacent to the easement had been damaged by virtue of the fact that the telephone company had erected at various intervals on the easement approximately 15 iron and wooden warning posts, warning of the presence of the cable; that the telephone company constructed at various intervals five metal boxes extending three feet above the ground, some of which were 12" X 12" in diameter and others being 6" X 6" in diameter. There is testimony showing that the presence of these warning signs and metal boxes diminishes the value of the 240' strip adjacent to the easement. Also there is testimony showing that in order to develop and use the 240' strip for commercial and industrial purposes, an additional 10 feet of hard surfacing would be required to cross the easement in order to use the 240' strip and that this would diminish the value of the 240' strip in that it would cost more to develop it for commercial or industrial uses. There is other evidence in the record showing that in order to lay sewer or water pipes from the highway to the 240' strip, it would be necessary to go under the telephone cable which would materially raise the cost thereof and in that respect would diminish the value of the 240' strip. Further, there is testimony from other witnesses showing that by virtue of the fact that appellant had the privilege of going on the easement and excavating for the purpose of making repairs would diminish the value of the 240' strip in that it would disrupt its use for commercial or industrial purposes. By implication, the witness Curry knew of the condition of the land and took this factor into consideration in arriving at his conclusion that the market value of the 240' strip had been diminished. In view of the fact that there was ample testimony before the jury tending to show how and why a decline in market value would be likely to take place, the Zirjacks case and similar cases are not in point. Appellant’s seventh point is overruled.

Appellant next contends that the trial court erred in denying its motion for judgment notwithstanding the verdict on the ground that there was “insufficient” evidence to support the jury’s answer to special issue No. 4 finding that the value of the 240' strip after the taking was 4<p per square foot.

Rule 301, Texas Rules of Civil Procedure, does not allow the rendition of a judgment notwithstanding the verdict on the ground that there was “insufficient” evidence to support the finding or that the finding is contrary to the preponderance of the evidence. 4 McDonald Texas Civil Practice, sec. 17.32 (1971 ed.).

In view of the statements made under the argument in the brief, it appears that appellant may have intended to say there was “no evidence” to support the jury’s finding on this issue because none of the expert witnesses testified that the value after the taking was as low as 4<t per square foot. If such be the case, we find the point to be without merit. The testimony of the expert witnesses is set forth in the chart above and will not be repeated here. In addition to the opinions of the expert witnesses, the record also contains testimony of other comparable sales in the area. . The telephone company’s own expert witness testified he found a comparable sale where land in the area had been sold for as low as 3.2$ per square foot.

It has been generally held in condemnation cases that opinion evidence as to value is not conclusive. A jury may consider and accept or reject such opinions or it may find its own opinion from other evidence such as comparable sales, or by utilizing its own experience in matters of common knowledge. Roberts v. State, 350 S.W.2d 388 (Tex.Civ.App., Dallas 1961, n. w. h.), and cases cited therein. Moreover, it has been held that actual sales of similar or comparable land in the vicinity of that being condemned are more reliable than the opinion of experts. County of Bexar v. Cooper, 351 S.W.2d 956, 958 (Tex.Civ.App., San Antonio 1961, n. w. h.); City of Dallas v. McLemee, 378 S.W.2d 393, 394-95 (Tex.Civ.App., Dallas 1964, n. w. h.). The jury’s finding falls within the range of the testimony. When viewed in the proper light there is at least some evidence to support the jury’s finding. Appellant’s eighth point is overruled.

We find no merit in appellant’s points 10 through 18 contending that it was error for the court to submit the four special issues requiring the jury to find the value on a square-foot basis and also that the court erred in refusing appellant’s requested special issues seeking a finding of value on an acreage basis.

Appellant objected to special issues numbers 1, 2, 3 and 4 and the ground that the submission on a square-foot basis amounted to a comment on the weight of the evidence.

The testimony shows that when land is suitable for commercial or industrial purposes, it is usually sold on a square-foot basis. The testimony of appellee’s value witnesses, Ferguson and Curry, valuing the land on a square-foot basis, went into the record without objection. Further, appellant adduced testimony from its own expert witness valuing the easement on a square-foot basis. All of the expert witnesses valued comparable sales on a square-foot basis. Insofar as we have been able to find, none of the expert witnesses gave any testimony valuing either strip of land on an acreage basis. In view of the fact that all the expert witnesses valued the land on a square-foot basis and there was no evidence as to the value on an acreage basis, the trial court was obligated to submit the case on a square-foot basis. Consequently, we fail to see how it can be said that the submission on a square-foot basis amounted to a comment on the weight of the evidence.

While appellant argues on appeal that the submission on a square-foot basis was calculated to confuse the jury and cause them to miscalculate the damages, no objection was made to the issues on such ground in the trial court. Therefore, appellant’s requested special issues, even if in correct form, are not a substitute for failure to object. Southwestern Settlement & Development Corp. v. State, 282 S.W.2d 78 (Tex.Civ.App., Beaumont 1955, ref’d n. r. e.); Neuhoff Bros. Packers, Inc. v. McCauley, 399 S.W.2d 929 (Tex.Civ.App., Waco 1966, ref’d n. r. e.). Under Rule 277 appellant must be held to have waived its right to complain of the issues on these grounds.

In any event we do not believe that the submission of the issues on a square-foot basis could have caused the jury to miscalculate the damages. The record shows that the telephone company’s attorney, over appellee’s objections, was permitted to interrogate the value witnesses and visually demonstrate before the jury the amount of damages the jury would be awarding for each strip in the event the jury accepted the testimony given by each witness. Consequently, the jury knew how much money, in dollars and cents, appellee would be awarded under the testimony of each of the value witnesses. For this reason we fail to see how appellant could have been harmed by the submission of the issues on-a square-foot basis. State v. Thompson, 290 S.W.2d 319 (Tex.Civ.App., Waco 1956, n. r. e.); Rule 434.

Appellant next complains of the trial court’s refusal to give its requested instructions numbers 1, 2 and 3.

Requested Instruction No. 1 was completely covered in the court’s charge, except for the following phrase: provided, this cable should be placed at a depth not to interfere with the ordinary use of the land.” We find no error in the court’s refusing to give this instruction.

At the time of trial the telephone company had laid the telephone cable on the easement at a depth of approximately three feet. During the trial much testimony went into the record, without objection, showing that the shallow depth of the cable would interfere with the installation of water and sewage lines on the 240' strip because lines of this type would have to be laid underneath the cable. In view of this, we think the instruction would have been somewhat confusing and possibly harmful to appellant in that the jury might have been led to believe that the telephone company failed to comply with the covenant set forth in its petition for condemnation agreeing to bury the cable at a depth so as not to interfere with the use of the land. The record is replete with testimony showing appellee could have requested the telephone company to lower the line. Upon viewing the record as a whole, we do not believe it can be said that the failure to give such an instruction was calculated to cause and probably did cause the rendition of an improper verdict. Rule 434.

By requested Instruction No. 2, appellant sought to have the jury advised that the appellee would continue to be the owner of the land. Appellant made no objection to the charge on this ground and, hence, waived its right to complain. Rule 274.

In Special Instruction No. 3, appellant requested that the jury be instructed that the appellant’s right of ingress and egress was limited to the 10' easement area only. As we view it, such instruction was not necessary.

Telephone company specially denied in its petition for condemnation that it sought any right of ingress or egress over any part of appellee’s land except the 10' easement. There is nothing in the record raising any issue in this regard. Consequently, any such instruction would be superfluous. Appellant’s point nine and points nineteen through twenty-one are overruled.

The twenty-second point complains of the court’s definition of the term “easement” and also complains of the court’s refusal to submit its requested instruction No. 3 defining the term.

The court’s charge contained detailed explanations of the rights, duties and responsibilities of the parties with regard to the use of the easement. Among other instructions the court instructed the jury as follows: “The term ‘easement’ as used in this case means an estate in real estate and the one having the easement has the dominant estate and the one on which the easement is imposed has the servient estate.”

Appellant objected to the instruction on the ground that it was not a “legal definition and it is an attempt to fact find and it will confuse the jury and suggest to them dominant and servient and it is prejudicial.”

In 21 Tex.Jur.2d p. 124, sec. 2, it is stated:

“An easement is a burden or charge for the benefit of another on the estate. The tenement on which the burden is imposed is called the subservient estate, while the one benefitted by it is commonly designated as the dominant estate.” Citing West v. Giesen, 242 S.W. 312, 319 (Tex.Civ.App., Austin 1922, writ ref’d).

Where the trial court gives a definition or instruction, the party not satisfied with the same is required to file an objection specifically and clearly pointing out wherein it is claimed that the definition or instruction is insufficient or in error. Rule 274; Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955). Any complaint concerning a definition or instruction is waived unless such complaint is specifically included in the objection. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979 (1948). The objection, as we view it, embraces nothing more than broad legal conclusions and therefore the right to complain was waived. Appellant’s twenty-second point is overruled.

Points thirty-seven through thirty-nine complain of the action of the court in receiving in evidence, over appellant’s objection, comparable sales Nos. 6, 7 and 9.

Appellant first objects to the sales on the ground that they were not comparable in size and that the same amounted to a showing of comparable sales of commercial property whereas appellee’s land was a raw acreage.

It is now settled law that evidence of comparable and similar sales located anywhere within the metropolitan trade area, if urban property is involved, is admissible in evidence. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954); Hays v. State, 342 S.W.2d 167 (Tex.Civ.App., Dallas 1960, ref’d n. r. e.); Rayburn, Texas Law of Condemnation, sec. 140(2).

There can be no absolute formula or definition of what constitutes similar or like property. Certainly, comparable does not mean identical. The determination will vary with each particular fact situation. Such elements as nearness in time, location, character, situation, usability and improvement may be considered as shedding light on the value of the land in question. Manifestly, the trial judge in applying so vague a standard must be granted a wide discretion, and his action will not be overturned unless an abuse of discretion is shown. Holcombe v. City of Houston, 351 S.W.2d 69 (Tex.Civ.App., Houston 1961, n. w. h.); Coastal Transmission Corp. v. Lennox, 331 S.W.2d 778 (Tex.Civ.App., San Antonio 1960, n. w. h.); City of Houston v. Collins, 310 S.W.2d 697 (Tex.Civ.App., Houston 1958, n. w. h.); Rayburn, Texas Law of Condemnation, sec. 117, p. 383. Without restating all the facts in the record relating to the objection made, we hold that no abuse of discretion was shown.

Appellant further objected to comparable sales Nos. 7 and 9 on the broad ground that they were leases rather than comparable sales. The evidence shows that both leases were ground leases on which the lessee had made extensive improvements. Appellee Ramsey, who qualified as an expert witness, testified that in placing a value on the land covered by the two leases, he used the capitalization of income approach. Both the appellee, Ramsey, and the witness, Se-arcy Ferguson, testified that this approach was a recognized and acceptable method of ascertaining market value.

It has been held that the capitalization of income approach is an acceptable method of determining market value and testimony of this type is admissible. City of Dallas v. Shackelford, 200 S.W.2d 869 (Tex.Civ.App., Dallas 1946, writ ref’d n. r. e.); Reeves v. City of Dallas, 195 S.W.2d 575 (Tex.Civ.App., Dallas 1946, writ ref’d n. r. e.); see also Rayburn, Texas Law of Condemnation, sec. 119.

After a study of the record as a whole, we have concluded that even if the testimony was inadmissible, the error, if any, was not such that it would be reasonably calculated to cause the rendition of an improper judgment. Rule 434; State v. Parrish, 159 Tex. 306, 320 S.W.2d 330 (1958). The record reveals that some twelve other comparable sales were offered in evidence. The verdict clearly shows that the jury did not accept the testimony in question, but on the contrary, based its verdict on other evidence of comparable sales in the area showing a much lower market value.

Other points briefed by appellant have been examined and found to be without merit and are overruled.

Finding no reversible error, the judgment of the trial court is affirmed.

McKAY, J., not participating.

      . “SPECIAL ISSUE NO. 1: From a preponderance of the evidence, what do you find was the market value per square foot of the Defendant’s 35,152.92 square feet of land covered by the easement involved herein condemned by SOUTHWESTERN BELL TELEPHONE COMPANY, immediately before the acquisition of said easement by SOUTHWESTERN BELL TELEPHONE COMPANY on the 16th day of April, 1971?
      “Answer in Dollars and Cents per square foot.
      “ANSWER: $.06 per square foot.
      “SPECIAL ISSUE NO. 2: From a preponderance of the evidence, what do you find was the market value per square foot of Defendant’s 35,152.92 square feet of land, taken by the easement involved herein, immediately after the taking of said easement by SOUTHWESTERN BELL TELEPHONE COMPANY on the 16th day of April, 1971?
      “Answer in Dollars and Cents per square foot.
      “ANSWER: $.04 per square foot.
      “SPECIAL ISSUE NO. 3: From a preponderance of the evidence, what do you find was the market value per square foot of the adjoining 843,669 square feet of land owned by Defendant and lying 240 feet deep adjacent to the easement taken by SOUTHWESTERN BELL TELEPHONE COMPANY herein on April 16, 1971?
      “Answer in Dollars and Cents per square foot.
      “ANSWER: $.06 per square foot.
      “SPECIAL ISSUE NO. 4: From a preponderance of the evidence, what do you find was the market value per square foot of the adjoining 843,669 square feet of land owned by Defendant adjacent to the easement taken by SOUTHWESTERN BELL TELEPHONE COMPANY and 240 feet deep on April 16, 1971?
      “Answer in Dollars and Cents per square foot.
      “ANSWER: $.04 per square foot.”

      . All rules hereinafter referred to are to the Texas Rules of Civil Procedure.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Angel GARCIA, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 933.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 30, 1976.

      Gerald J. Goodwin, Brock & Williams, Houston, for appellant.
    John P. Venzke, Fulbright & Jaworski, Houston, for appellee.
   McKAY, Justice.

This is a workmen’s compensation case in which appellant claimed injury and compensation benefits. After a jury finding that appellant had not sustained any total or partial incapacity as a result of an injury judgment was rendered that appellant take nothing. The jury also found that there was not another employee of the same class as appellant who had worked at least 210 days of the year immediately preceding in the same or similar employment in the same or a neighboring place. We affirm the judgment of the trial court.

Appellant alleged that while he was working within the course and scope of his employment he suffered accidental bodily injuries to his head, neck, back and right eye and that such injuries produced total disability. Appellant testified that he was a “carpenter helper”, and that he was working in the loft of the building and as he was putting up some plywood he raised from hammering and hit his head on a rafter and cut it. He said this injury resulted in temporary unconsciousness and he was taken to a doctor who sewed up the cut in his head. He further testified that he suffered from a headache and vomiting after being taken home, and that he was taken to the hospital where his head and neck continued to hurt while he was hospitalized as well as after his discharge. He further testified his eye was red and “water a lot”, and that he was in St. Joseph’s Hospital ten or twelve days on two different .admissions. He said that after his second release he tried to get his old job back but that they would not hire him because he was ill; that he did get a job with another company and while walking on a scaffold he got dizzy and fell and hurt his ribs and one leg; and that “my head hurts. The neck and I get dizzy and I am afraid of heights.”

Appellant’s first three points complain that there is no evidence, and that there is insufficient evidence to support the finding of the jury in answer to issue 1 that his injury was not a producing cause of any total incapacity, and that such answer is contrary to the greater weight and preponderance of the evidence as to be manifestly wrong and unjust. Points 4, 5 and 6 make the same complaints concerning the jury’s answer to issue 2 that his injury was not a producing cause of any partial incapacity.

In passing on the no evidence point we may consider only the evidence and inferences therefrom which tend to support the verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). When the contention is that the evidence is insufficient to support a fact finding or that the finding is against the great weight and preponderance of the evidence, we must examine all the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the finding of a vital fact or that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Dr. Litel, a neurosurgeon, testified his examination of appellant was neurologically normal, and that from his examination it was his opinion that appellant’s complaint that he could not see well out of his right eye was subjective. Dr. Litel said he found no indication of swelling in appellant’s eye, and he found nothing abnormal, and that from his standpoint the eye was normal, but that appellant was kept in the hospital for observation “to make certain there was nothing of a very serious nature occurring.” His further examination showed that the x-ray of appellant’s skull was normal, and the optic foramina (the two small holes through which the optic nerves go) were normal. EEG was mildly abnormal and brain scan tests showed evidence to support the possibility of a subdurval hematoma. A bilateral carotid arteriogram was done, which test, Dr. Litel testified, ruled out any subdurval hematoma or blood mass in or pressing on the brain.

Since appellant complained of his right eye Dr. Litel referred appellant to Dr. Van Riet, an ophthalmologist, for examination and evaluation. Dr. Van Riet, after examination, concluded that appellant was able to see normally out of his eye. Final diagnosis made by Dr. Litel was “number one, mild concussion and number two, transient visual loss, etiology undetermined.” He explained that concussion means loss of con-sciousnesss, from which appellant fully recovered, and that “transient visual loss, etiology undetermined” meant “that I couldn’t explain the patient’s complaint to me that he couldn’t see; that I felt that we had made all efforts possible or reasonable to determine any injury to the eye and had failed to come up with anything.”

The fact that appellant received an accidental injury by cutting his head on a rafter was undisputed. Appellant had the burden to obtain a favorable finding that such injury produced some total or partial incapacity. The only evidence that appellant presented that he had suffered any total or partial incapacity was from the appellant himself, and such testimony was to the effect that he suffered from headaches, dizziness and eye problems. The medical evidence was to the effect that such complaints had no relation to appellant’s injury, and that his injury produced no total or partial incapacity. The appellant was an interested witness and his testimony as a witness for himself presented only a fact issue for the jury. We are of the opinion that there was sufficient evidence to support the verdict of the jury that the injury produced no total or partial incapacity.

Appellant seems to maintain that because he was hospitalized twice that he was totally disabled for that period of time. The fact that appellant was in the hospital for examination does not prove that he was either totally or partially incapacitated. The burden of proof was on appellant to prove incapacity to the satisfaction of the jury. Obviously, the hospitalization of appellant was for the purpose of determining with all reasonable medical examinations and tests whether appellant did suffer any incapacity, and appellant does not complain that such examinations and tests were inadequate or not sufficiently comprehensive. We overrule appellant’s points one through six.

Appellant’s points 7, 8 and 9 complain that there was no evidence or insufficient evidence to support the finding of the jury that there was not another employee of the same class as appellant who had worked at least 210 days of the year immediately preceding the injury in the same or similar employment in the same or a neighboring place, and that such answer is contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. We overrule these points.

Appellant testified he was a carpenter’s helper. He offered the witness Goodwin who testified he was a carpenter, and that he had worked 210 days in the preceding year. However, on cross-examination he testified that he did not know how many days he worked, but that he did work every day it did not rain and he did not know how many days that was. Even if Goodwin worked 210 days he was not a workman of the same class.

The burden of proving the wage rate is on the claimant in a workmen’s compensation case. It is undisputed appellant did not work 210 days; and, therefore, Subdivision (1) of Art. 8309, § 1, Vernon’s Ann.C.S. did not apply. Appellant failed to prove the average weekly wage rate of another employee of the same class who had worked 210 days during the prior year, and the jury so found under Subsection (2). Appellant failed to request an issue under Subsection (3) on “just and fair” wage rate, but (3) may be resorted to only after the claimant has met “his burden of proving by competent evidence that his wages cannot be computed under Subdivision (1) or (2).” Aetna Insurance Co. v. Giddens, 476 S.W.2d 664 (Tex.1972). Points 7, 8 and 9 are overruled.

Judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Manuel (Manny) RODRIGUEZ, Appellant, v. Richard D. (Rick) THOMPSON, Appellee.
    No. 6577.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 4, 1976.

      Luis M. Segura, San Antonio, Alexander R. Gonzalez, Fort Stockton, for appellant.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Lucius D. Bunton, Odessa, for appellee.
   OPINION

PER CURIAM.

This is an election contest involving the naming of the Democratic nominee for Sheriff of Presidio County. The trial Court determined that the Appellee received 999 legal votes and the Appellant 994 legal votes. We affirm after having reduced Ap-pellee’s count by two votes.

The trial Court disallowed 21 votes cast for Appellant and 12 votes cast for Appel-lee. The Appellant complains here only as to 6 of his votes which were disallowed. Five of these were disallowed because the voters lived with their families in Mexico and were determined not to be residents of Presidio County. His main complaint and 16 of his 21 points of error are with regard to votes counted for Appellee which he challenges.

The Appellee has presented a Motion to Dismiss for Want of Jurisdiction contending that the appeal was not timely perfected. Following the trial, the Presiding Judge signed a judgment in El Paso on June 28, 1976, which was filed with the District Clerk the next day. Article 13.-30(11) of the Election Code requires that notice of appeal and an appeal bond be filed within five days after the contest is decided. Appellant contends since July 4 was on a Sunday and was a holiday, under Article 342-910a, Tex.Rev.Civ.Stat., Monday, July 5, was a holiday and that the filing on Tuesday, July 6, was timely. He relies upon Blackman v. Housing Authority of the City of Dallas, 152 Tex. 21, 254 S.W.2d 103 (1953). The holding in that case does not now apply for the reasons set forth in Suarez v. Brown, 414 S.W.2d 537 (Tex.Civ.App. Corpus Christi 1967, writ ref’d). Thus, we conclude that the notice and bond were not timely filed.

On July 12, 1976, Appellant filed a “Motion to Correct and Amend Judgment.” After a hearing, the trial Court entered an order vacating the first judgment, and on July 15,1976, entered a judgment which did not change the results but did take one more vote from those originally counted for Appellant and changed a recital as to the name of the office of the nominee from “Sheriff, Tax Assessor-Collector” to “Sheriff”, for reasons hereinafter noted. After this judgment, timely notice of appeal and an appeal bond were filed by Appellant. The Appellee urges that the trial Court lost jurisdiction once the first judgment was entered and that this Court has no jurisdiction because timely procedures were not used to appeal from the first judgment. Although an election contest is a statutory procedure and Article 13.30(11) does provide for certification of results if no appeal is perfected in five days, we find nothing in the Election Code which terminates the trial Court’s jurisdiction over its judgment before the end of a period of thirty days. First State Bank and Trust Company of Port Lavaca v. Vector Corporation, 427 S.W.2d 958 (Tex.Civ.App. Waco 1968, writ ref’d n. r. e.). In view of the entry of the second judgment, we conclude that Bailey v. Clark, 407 S.W.2d 520 (Tex.Civ.App. Fort Worth 1966, no writ), is not controlling. The motion to dismiss is overruled.

The Appellant initially contends that the trial Court erred in assuming jurisdiction because the notice for the contest as required by Article 9.03 was invalid. This provision of the law requires a contestant to give notice to “any one holding a certificate of election for any office * * In this case, the notice referred to the “nomination in the Democratic Primary for Sheriff of Presidio County, Texas * * Appel-, lant urges that under Article 8, Sec. 16 of the Texas Constitution, the office is that of Sheriff, Tax-Assessor and Collector and no notice was given to contest the office as stated in the Constitution. We conclude that under Article 5, Sec. 23 of the Constitution, there is the office of “Sheriff”, and the duties of Tax-Assessor and Collector which are added by the subsequent Article do not change the office from that of “Sheriff”. In fact, Article 8, Sec. 16 recognizes the position of “The Sheriff of each county, * *.” Also see Article 6865, Tex.Rev.Civ.Stat., which provides:

“The qualified voters of each county at each general election shall elect one sheriff for a term of two years.”

Appellant also urges that the notice is insufficient because it fails to state who the contested voters actually voted for in the primary election. We conclude that the notice which incorporated the petition and the grounds as set forth therein was sufficient where the petition did specifically state the grounds upon which each designated vote was to be contested. Point of Error Number One is overruled.

Appellant next asserts that the trial Court erred in excluding the affidavit of Nancy Fowlkes wherein an issue was raised as to her residence being outside Presidio County. The evidence supports the trial Court’s finding that under Article 5.08(i) this young single lady who teaches in San Antonio and temporarily resides there is a permanent resident of Presidio County. Article 13.30(7) gives the trial judge wide discretion as to the admissibility of evidence, and we cannot say such discretion was abused in excluding the ex parte affidavit where no attempt was made to obtain the evidence by deposition, and no reason was given for not obtaining such evidence except in an ex parte procedure. Jarrell v. Smith, 360 S.W.2d 825 (Tex.Civ.App. Beaumont 1962, writ dism’d.). Point of Error Number Two is overruled.

The Appellant contends the trial Court erred in holding that Charles E. Shannon was a qualified voter in Presidio County. He is a U.S. Magistrate who resides in the Big Bend National Park. He owns a house in Marfa where he lived before becoming a U.S. Magistrate, and which he declares as his homestead. He has a bank account there, and has his car registered in Presidio County. Under Article 5.08(i), the residence of Mr. Shannon, as a government employee, is construed to be where his home was before he became such employee. Point of Error Number Three is overruled.

The next point asserts that Nancy Fowlkes and Gladys Jean Christopher, school teachers, and Carol Cross, a State employee, all of whom presently reside outside of Presidio County, are not qualified voters. Each of these young ladies graduated from high school in Marfa and left the County to attend college and then took jobs with governmental agencies. All have families in Presidio County, all have their cars registered there, and they only rent places where they presently live and work. We believe the evidence supports the trial Court’s findings, under Article 5.08(i) that they are residents of Presidio County, and that the provision of 5.08(e) which makes a person’s residence where he usually sleeps at night, is not absolute and controlling where there is no indication of an intent to abandon the long residence in the County where they voted. Point of Error Number Four is overruled.

The fifth point attacks the trial Court finding that Jerry Lumm and Jeannette Lumm were qualified voters in Pre-sidio County. They apparently moved out of the County about the time of the election. Mr. Lumm voted absentee on the grounds that he would be out of the County on election day. Mrs. Lumm did vote in person, after having earlier applied for an absentee ballot. The absentee ballot was returned unmarked after the election. There was evidence that the utilities were turned off in their house the day before the election, and that they now live in Alice, Texas. There was no testimony as to exactly when they moved. Mrs. Lumm obviously was present to vote on May 1, 1976, and had not left the County at that time. There being no conclusive evidence of their actual moving prior to the date of the election, the challenge cannot be sustained. Point of Error Number Five is overruled.

The next point alleges that Captain Daniel Dunlap and his wife, Ann Christopher Dunlap, were not qualified voters. Daniel and Ann were married while students at Texas A & M. Daniel was from Amarillo and Ann from Presidio County. He received his commission in the Air Force immediately upon graduating, and has been in the service ever since, being stationed in Florida at the present time. They do not own any property, and have always rented a place where he has been stationed. While he was overseas, Ann stayed with her parents in Presidio County. They have spent time with both of their parents while on furlough, but always voted in Presidio County since their marriage several years ago. Under Article 5.08(i), as an officer of the United States his residence is where his home was before he became such officer, unless he has become a bona fide resident of the place where he is in government service or some other place. The evidence supports the trial Court finding that he established his residence in Presidio County and was qualified to vote there. Under Article 5.08(h), the residence of a married woman is considered to be the place where her husband has his residence. Since Ann has returned to her home during the times her husband was overseas, we conclude that she remains a resident of Presidio County. We overrule Point of Error Number Six.

The following point attacks the vote of Mrs. Ronnie (Cherry) Webb, contending she was not a registered voter in Presidio County. Mrs. Webb testified that her husband was a resident of the County. He had divorced his prior wife, Toni, and married Cherry in January, 1976. She moved from Alpine to Presidio County in February, 1976. She received in the mail a voter registration, although acknowledging that she did not register to vote and her husband testified he did not register her. There was no way to tell whether the registration addressed to “Mrs. Ronnie Webb” may have resulted from the registration of the divorced wife. Article 5.02a requires that a person comply with the registration requirements of the Election Code to be a qualified voter. Article 5.13a, Subdivision 1, requires that each applicant shall submit a written application to become an eligible voter. The only evidence in the record is that neither this voter nor her husband registered for her. Appellee urges that perhaps Cherry Webb’s father or mother may have registered for her. There is no evidence that they did so, nor that they were qualified electors of the County who could register for her as her agent. The point of error is sustained, and one vote is subtracted from those counted for the Ap-pellee.

Appellant next challenges the vote of D. M. Cordero because he was convicted in 1939 of driving while intoxicated, which at that time was a felony, and there was no proof that his civil rights have been restored. The challenge is sustained. Duda v. State, 109 Tex.Crim. 573, 6 S.W.2d 115 (Tex.Crim.App.1928, no writ); 16 Tex.Jur.2d Criminal Law, Sec. 25, footnote 9. Appellee urges that the voter only received a suspended sentence. The record reflects that Mr. Cordero did receive a suspended sentence on a charge of assault with intent to murder. There is no evidence and the trial Court did not find a suspended sentence on the conviction of DWI. Thus, there is evidence of a final conviction of a felony which makes the challenge good. Article 5.01. Point of Error Number Eight is sustained. One vote is subtracted from those counted for Appellee.

Appellant next attacks the trial Court’s holding that Isabel Yates was a qualified voter. Because of a physical disability and being over 65 years of age, a ballot was taken to her in a car outside the courthouse where she voted during absentee voting. The Court did not find any improper influence, and in fact concluded that no one assisted her in the actual voting. We believe the vote should be counted. Paredes v. Martinez, 264 S.W.2d 958 (Tex.Civ.App. San Antonio 1954, no writ). Point of Error Number Nine is overruled.

A challenge is next made as to three absentee votes where it is contended the application was made more than sixty days prior to the election, and more than one reason was given for voting absentee. Mrs. Blackwell’s application was postmarked February 29, 1976. It apparently was received by the Clerk within a day or two, although no one recalled the exact date. This would have been either the 61st or the 60th day before the election. We believe the vote was properly counted, since the evidence failed to conclusively establish the challenge. The application of Pamela Jean Peiser properly shows absence from the County as grounds for her absentee vote, and it was properly counted. The application of Joel Quick showed an address of Laughlin Air Force Base under the grounds of absence from the County, and the trial Court properly counted the vote, although he did not strike out the other two listed grounds for an absentee vote. Point of Error Number Nine is overruled.

Next, it is urged that C. K. Smith and wife, Mary Smith, were not qualified voters. Their applications for an absentee ballot also listed three grounds and they did not strike any of the grounds and listed a mailing address on the blank provided under each of the three printed grounds for absentee voting. The trial Court found that there was no evidence that the applications were not valid on at least one of the grounds stated. Those findings are sustained. Point of Error Number Eleven is overruled.

Appellant contends that Dolores Guevara, Gaspar Guevara and Mrs. R. S. McCracken were not qualified voters because their applications for absentee ballots were defective. In each case, the application set forth “religious belief” as a grounds for absentee voting and this was not stricken out on the application. On all three applications the Clerk wrote in “over 65” to show a ground permitted by statute which had not been printed on the application. Article 5.05, Subdivision l(c)(i). The trial Court concluded that each application was in substantial compliance with the law and counted the votes. We agree with that determination of the issue. Point of Error Number Twelve is overruled.

It is asserted that Linda Mae DeVolin and Thomas Dan Newsome were not qualified voters. The application of each of these voters contains three grounds for absentee voting, none of which are stricken out. Again, the trial Court concluded that there was a substantial compliance with the law and counted the votes. We agree. It is also asserted that Linda Mae DeVolin was not a legal resident. Her father testified she had lived in Marfa all her life and had no other permanent residence. Point of Error Number Thirteen is overruled.

Appellant next challenges the absentee vote of Mr. and Mrs. Hoyle Cooley and Elizabeth Newton, each of whom voted absentee by personal appearance. The reasons appearing on their applications were “Out of town (State)”, “Being out of the county”, and “vacation”. We conclude, as did the trial Court in its findings, that these reasons constituted a substantial compliance with the provisions of Article 5.05, Subdivision l(c)(iii), which sets forth the ground of “expected absence from the county”. Longoria v. Lozano, 485 S.W.2d 308 (Tex.Civ.App. San Antonio 1972, no writ). Point of Error Number Fourteen is overruled.

The next attack is upon the vote of eight persons whom Appellant asserts failed to comply with Article 5.05, Subdivision 2(b), because there was a failure to attach a copy of their voters registration certificate to the application for an absentee ballot. As to one ballot only, that of Mrs. McCracken, there is affirmative testimony that the registration was not enclosed. There is no evidence in the record that the alternatives to returning the registrations were not complied with and the trial Court’s findings of substantial compliance as to each vote is affirmed. Point of Error Number Fifteen is overruled.

Appellant challenges G. W. Adams as a qualified voter because there is no certificate of physical disability attached to the application for an absentee ballot. The grounds in the application form also state “religious belief”, and the trial Court properly held that there is no evidence that this ground for an absentee ballot was not applicable. Point of Error Number Sixteen is overruled.

Appellant attacks the vote of Efrain Soza and wife, Guadalupe Soza, because they were registered in the wrong precinct. They had both lived in Presidio at one time, but were living with her parents in Redford when they registered to vote. Both of these voters testified that they were told and believed that they had to register in Presidio because they had lived there at one time. They voted there believing that was where they were to vote. There is no evidence they intentionally gave false information to procure a registration in the wrong precinct, although they were mistaken about the matter because of misinformation given to them. Under Article 5.16a, Subdivision 2, their votes were properly counted. Point of Error Number Seventeen is overruled.

The next point asserts that the trial Court erred in disqualifying the vote of Eluterio Valles because he lives with his wife in Mexico. At one time he rented a house in Presidio, but has not done so for the past four or five years. During these past several years, he has stayed with his wife in Ojinaga. We conclude that under Article 5.08(f) the trial Court properly held that he was not a resident qualified to vote. Point of Error Number Eighteen is overruled.

Point of Error Number Nineteen presents the same basic contention as to three other voters as was made in the contention of Mr. Valles. The evidence clearly indicates that all three live with their wives and families in Mexico and are not residents of Presidio County. Point of Error Number Nineteen is overruled. Garza v. Salinas, 434 S.W.2d 153 (Tex.Civ.App. San Antonio 1968, no writ).

The same contention is made in Point of Error Number Twenty with regard to Jose Saenz, who is a single man who resides with his family in Ojinaga. The evidence clearly supports the trial Court finding that he was not a resident qualified to vote in Presidio County. Point of Error Number Twenty is overruled.

Appellant’s last point asserts that the trial Court erred in deducting from his total votes the vote corresponding to the unsigned stub No. 2660, which the Court concluded was the vote cast by Patricia Shurley. In its findings, the Court concluded that this young lady, who was divorced and has lived in Dallas for three years, is not a resident of Presidio County. We conclude that such finding was proper under Article 5.08(e).

The Appellee presents four cross points contending that the trial Court erred in invalidating certain votes which either were or he believes would have been favorable to him, some being absentee ballots which were not opened or counted by the trial Court. Our determination of the Appellant’s points of error make it unnecessary for us to pass upon these cross points and they will not be considered.

Having disallowed two votes counted for the Appellee by the trial Court, we conclude that the Appellee was the duly elected Democratic nominee for Sheriff of Presidio County, having received 997 votes, three more than the total received by the Appellant. In view of the necessity that printed ballots be printed forthwith, no motion for rehearing will be entertained. The Clerk of the Court will issue the mandate forthwith, since the Texas Supreme Court is without jurisdiction to review election contest. Ar-tide 13.30(12); Parr v. Cantu, 161 Tex. 296, 340 S.W.2d 481 (1960).

      . All references herein are to an Article of the Texas Election Code, unless otherwise noted.

      . In 1954, Article 5, Sec. 23 of the Texas Constitution was amended to provide for a four year term of office.


author: YOUNG, Justice.

text:
    Robert D. HOLMES, Appellant, v. Linda TIBBS, Appellee.
    No. 1118.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 21, 1976.
    Walter Groce, James C. Martin and Walter Groce, Corpus Christi, for appellant.
    C. Edwin Prichard, Jr., County Atty., Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment of the trial court ordering the respondent-appellant to make child support payments in a Uniform Reciprocal Enforcement of Support Act proceeding.

The suit was initiated by complaint of Linda Tibbs filed in the Superior Court of Whitfield County, Georgia, against appellant, Robert D. Holmes, under the Uniform Reciprocal Enforcement of Support Act of Georgia. There she requested that an order of that court be directed to the appellant, a resident of Nueces County, Texas, for support on behalf of their minor daughter.

Based upon appropriate action in the Superior Court of Whitfield County, Georgia, the initiating state, this action was forwarded to the District Clerk of Nueces County, Texas, the responding state. Subsequently, the cause came on to be heard in the Domestic Relations Court of Nueces County, Texas. The appellee appeared through the Nueces County Attorney only; the appellant appeared individually as well as through counsel. After a non-jury trial, the trial court in its order found a duty of support and set the amount at $160.00 per month to begin March 1, 1976. Holmes appeals from that order.

As we interpret appellant’s contentions from his four points of error and supporting arguments, he complains that there is no evidence about either the need for child support or the necessary amount thereof. The appellee has not favored us with a brief.

The only witness who testified was the appellant. From him we learn that he and the appellee were divorced and that they had one child of their marriage. He has now remarried and has two other children.

In his testimony, the appellant itemized his current income and expenses. According to him, his expenses exceeded his income. Also, he admitted that by reason of his divorce from appellee, he was ordered (being the last order) to pay $20.00 per week as support for their minor daughter.

The correct rule about the amount of-money that a father is required to pay for the support of his minor children, both before and after divorce, is that the amount should be based upon: 1) the needs of the children; and 2) his ability to pay, having due regard for all his lawful obligations, including those assumed to another wife and to his other children. Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921); Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1973, no writ). Further, the trial court’s child support order will not be disturbed on appeal unless there is a clear abuse of discretion. Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App.—El Paso 1961, writ ref’d n. r. e.). Even though a trial court has wide discretion regarding the amount of child support payments, and each case must stand on its own facts, the determination of that amount must be supported by evidence that the children’s needs are as much as the amount specified in the order. Angel v. Todd, 368 S.W.2d 224 (Tex.Civ.App.—Houston 1963, no writ).

All of which brings us to a consideration of whether there is evidence in our record about the needs of the appellant’s daughter that will support the trial court’s order of $160.00 per month. We think not.

The only evidence in that regard is the appellant’s admission that the Georgia Court granting the divorce ordered him to pay $20.00 per week. A fact or condition once proven or known to exist will be presumed, in the absence of evidence to the contrary, to have continued in effect. Angel v. Todd, supra; 23 Tex.Jur.2d Evidence § 76 (1961). Although the trial court’s order is supported by evidence to the extent of $20.00 per week, the evidence does not support an order for any amount greater than $20.00 per week. We hold, therefore, that the trial court abused its discretion when it ordered the appellant to pay $160.00 per month for the support of his minor daughter.

It could be suggested that the trial court considered as evidence the statements made in the certificate and the other material received from the initiating court in Whitfield County, Georgia. The trial court as the court in the responding state could not consider these as evidence of the facts alleged. Schlang v. Schlang, 415 S.W.2d 28 (Tex.Civ.App.—Houston 1967, writ ref’d n. r. e.). All of the appellant’s points are sustained.

The judgment of the trial court is REVERSED and the cause is REMANDED.

      . Tex. Family Code Ann. § 21.01, et seq. (1975).


author: STERNBERG, Justice.

text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. Gladys CHAPMAN, etc., et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 15, 1976.
    Earl M. Cornett, Gen. Counsel, Dept, of Labor, Frankfort, Kenneth E. Hollis, Asst. Counsel, Dept, of Labor, Louisville, for appellant.
    C. Kilmer Combs, Kelsey E. Friend Law Firm, Baird & Baird, Pikeville, for appel-lees.
   STERNBERG, Justice.

This is a workmen’s compensation case. The sole and only issue, as taken from appellant’s brief, is:

“Is a dependent widow of a miner, who had contracted pneumoconiosis and had filed a timely workmen’s compensation claim therefor, prior to his death, entitled to widow’s benefits where the decedent died of a cause or causes unrelated to his pneumoconiosis?”

Flemón L. Chapman was regularly employed as an underground coal miner for over thirty years. His last injurious exposure was January 10, 1973, and at all times thereafter he was unable to work in the mines. On January 24,1974, Chapman filed a claim for permanent total disability by reason of pneumoconiosis. On March 10, 1974, claimant, died from a cause unrelated to his disability (post-operative shock following surgery for carcinoma of the colon.) In due time his widow, Gladys Chapman, who was his only dependent, was made a party to the proceeding. Proof was duly taken on the proffered claim, and on August 4, 1975, the Board found that Chapman “ * * * filed a valid claim during his lifetime and that he died on March 10, 1974, leaving surviving his widow, Gladys Chapman, who was wholly dependent upon him at his death.” Further, the Board found that Chapman “ * * * became permanently totally disabled on or about January 10, 1973, as a result of the occupational disease of coal workers’ pneumoconio-sis and/or silicosis. * * * ” Gladys Chapman, as the dependent widow of claimant, was awarded $47.25 per week for a period of 425 weeks against the Special Fund and $15.75 per week for a period of 425 weeks against Chapman’s employer or its insurance carrier.

A petition for review was taken to the Pike Circuit Court by the Special Fund, where the award of the Board was affirmed. Hence, this appeal.

Appellant contends that, (1) KRS 342.316 provides the exclusive remedy for disability or death arising out of mining operations, and (2) there is no provision therein for benefits to be paid to the widow where death is from a cause wholly unrelated to the disability complained of. As a result thereof, appellant concludes that the subject claim should be dismissed.

We must bear in mind that this is not a claim for benefits as a result of death. It is purely and simply a claim by an employee for permanent total disability which he suffered as a result of the occupational disease of pneumoconiosis. The only relationship of the widow to these proceedings has to do with the person to whom the award of the Board, if any, is to be paid.

KRS 342.316 was extensively amended at the regular 1972 session of the General Assembly for the purpose of meeting the pressure of the Federal Black Lung Act. For a historical discussion of the evolution of KRS 342.316, as now in force, see Maggard v. International Harvester Company, Ky., 508 S.W.2d 777 (1974).

KRS 342.316(4) provides:

“The amount of compensation payable for disability due to occupational disease * * *, and the time and manner of its payment, shall be the same as provided for accidental injury * * * under the general provisions of the workmen’s compensation act, * * *.”

The applicable provisions of the Workmen’s Compensation Act are found in KRS 342.730. Chapman’s injury, which the Board found to be permanent total, was compensable pursuant to the provisions of subsection (l)(a) thereof. It provides:

“For total disability, 55 per cent of his average weekly wage during such disability, and two and one-half per cent of his average weekly wage for each dependent up to a maximum of three.”

KRS 342.730(4) and (4)(a) provide as follows:

“(4) When an employe, who has sustained disability compensable under KRS 342.730, and who has filed a valid claim in his lifetime, dies from causes other than the injury before the expiration of the compensable period specified, the income benefits specified and unpaid at the individual’s death, whether or not accrued or due at his death, shall be paid, under an award made before or after such death, for the period specified in this section, to and for the benefit of the persons within the classes at the time of death and in the proportions and upon the conditions specified in this section and in the order named:
(a) To the widow or widower, if there is not child under the age of 18 or incapable of self-support; or”

Chapman having filed a valid claim and having died from causes other than the injury before the expiration of the compen-sable period, the award should be paid to the widow.

The judgment is affirmed.

All concur.


author: BARDGETT, Judge.

text:
    CITY OF ST. LOUIS, Respondent, v. Lorena Jeanne TINKER, Appellant.
    No. 59088.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1976.

      Dianne Taylor and Toby Hollander, Taylor, Eichner, Hollander & Platke, St. Louis, for appellant.
    Judith Anne Ronzio, Asst. City Counselor, St. Louis, for respondent.
   BARDGETT, Judge.

The defendant-appellant Lorena Jeanne Tinker was charged in St. Louis City Court with peace disturbance under section 762.-030, Rev.Code of St. Louis 1960, and resisting arrest. She was acquitted of the resisting arrest charge and convicted of peace disturbance. Appellant appealed the conviction to the St. Louis Court of Criminal Corrections and, on a trial de novo without a jury, was convicted of peace disturbance and sentenced to fifteen days in the city workhouse. Execution of sentence was suspended and appellant was placed on probation for two years.

After appellant’s motion for new trial was overruled, she filed her notice of appeal to this court. The principal issue on appeal is the constitutionality of the peace disturbance ordinance of St. Louis as appellant contends it is violative of the Fifth and Fourteenth Amendments of the United States Constitution. The resolution of this appeal requires a construction of certain provisions of the United States Constitution; therefore, this court has jurisdiction pursuant to Art. V, sec. 3, Mo.Const., as amended 1970.

There is some dispute as to the facts but there is general agreement as to the overall situation which gave rise to the arrest of appellant. On July 12, 1973, a group of people gathered at St. Louis city hall to protest the alleged lax enforcement of the city’s lead paint ordinance. A number of the protestors decided to remain in the rotunda of city hall through the night to continue their protest. The mayor permitted this to be done. Mrs. Tinker had been one of the protestors who arrived about 2:30 p. m. She testified she left city hall about 4:30 p. m. to go get sleeping bags and sweaters for the protestors to use during the night and returned about 7:30 p. m. whereupon she sought entrance at the east door of city hall. She knocked on the door and it was opened by one of the security guards.

The city’s evidence consisted of the testimony of three police officers. Officer Miller stated that he was on duty at city hall that evening and about 7:30 p. m., his attention was drawn to the east door where he observed Mrs. Tinker yelling at a security guard. Although he could hear Mrs. Tinker from his position approximately 30 feet away, he could not understand what she was saying. After walking the distance to the door, he tpld Mrs. Tinker that no one was permitted to enter the building although anyone inside was free to leave. Mrs. Tinker screamed that she was coming inside and no one was going to keep her out. Officer Miller said the screaming attracted the attention of the approximately 35 protestors in the rotunda who then began congregating in the area of the door. She said she had some bedding for the protestors and was coming into the building. She called the police “pigs”, “stupid”, and “cops”. Officer Crook and Lt. Beech were also present and came over to the eastdoor area. There were other people on 12th street (the east side of city hall) and they began coming up the steps of the building. Miller didn’t know if they were demonstrators or just passersby. After the screaming went on for a minute or so, Miller told her she was under arrest for peace disturbance, to which she responded she was not going to jail. In addition to screaming, she waved her arms and attempted to kick the officer. Officer Crook and Lt. Beech assisted Miller in handcuffing her hands behind her back. As Mrs. Tinker was being arrested, some of the demonstrators said, “You are not going to arrest Mrs. Tinker.” The police took Mrs. Tinker out to a parking lot and then drove her to the fourth district station. In describing the volume of appellant’s noise, the officer said it was loud enough to attract 10 or 12 people on 12th street and those inside city hall to come to the door.

Officer Crook testified there were about 50 to 75 people demonstrating against lead paint and of these about 40-50 were inside city hall. He saw some people inside going toward the door and heard a commotion. He went to the door and saw Mrs. Tinker arguing with his partner claiming she had a right to come into the building to take clothing and bedding to the other protestors. He could hear this arguing from about 10 to 15 feet away. The only thing he could recall Mrs. Tinker screaming was, “I am going to take this bedding to these people inside city hall. Nobody can stop me, not even you stupid pigs.” Lt. Beech ordered her arrest for causing a disturbance and “riotous situation”. As Mrs. Tinker was being arrested she called out, “Help me.” According to the officer about 15 to 20 people outside and 30 to 35 people inside moved toward the door, but he did not hear them say anything. Apparently in response to a directive by another officer, these people came no closer than 25 to 30 feet.

Lt. Beech testified he was stationed inside city hall. The demonstrators were allowed to spend the night in the rotunda but if they left they could not return that night. He heard loud talking near the east door and went over there. He told appellant that no one was permitted to enter the building. She tried to push and shove her way into city hall. She did not curse but did call the police “pigs” and said they were the cause of a lot of death and destruction in the world. He told her she would be arrested if she did not leave the place and then ordered her arrest because she would not leave. The yelling went on and she tried to kick the officers when they were handcuffing her. About 15-20 people inside and the same number outside came to the door of the building. After the arrest took place, the other protestors just went back and sat down. The lieutenant testified appellant said nothing vulgar but her calling police “pigs” and saying they were responsible for many peoples’ death was offensive to him and uncomplimentary.

Ordinance No. 762.030 of the city of St. Louis provides:

“762.030. Public disturbance of the peace. — No person shall disturb the peace of others by noisy, riotous or disorderly conduct, nor by violent, tumultuous, offensive or obstreperous conduct or carriage, nor by loud or unusual noises, nor by unseemly, profane, obscene, indecent, lewd or offensive language, calculated to provoke a breach of the peace, nor by assaulting, striking or fighting any other person in any park, street, alley, highway, thoroughfare, public place or public resort. (1948, C.46, s.20.)”

The information charging appellant with violating the above-noted ordinance is as follows:

“On information, the undersigned City Counselor within and for St. Louis, Missouri, complains and informs the Court that on or about the 12th day of June, 1973, within the corporate limits of St. Louis, Missouri, at or near 1200 Market above-named defendant did then and there unlawfully disturb the peace by noisy, riotous, and disorderly conduct, in a public place, and did then and there use indecent, lewd, and profane language in violation of Section 762.030 and 1.100; Revised Code of the City of St. Louis, Ordinance No. 50549, approved May 2, 1961. On information undersigned prosecutor, on his oath of office, informs the Court that the above facts are true as he verily believes.”

Appellant contends in point I that ordinance 762.030 “is unconstitutionally vague on its face, and thereby violates the Fifth and Fourteenth Amendments to the United States Constitution” and in point II that the ordinance is “unconstitutionally over-broad, sweeping within its prohibitions activities which are constitutionally protected and therefore violates the Fifth and Fourteenth Amendments to the United States Constitution.”

At the conclusion of the case the trial judge held that thére was no evidence that appellant “did then and there use indecent, lewd, and profane language”, struck that phrase from the information, and then found appellant guilty of peace disturbance under the ordinance. Appellant was therefore convicted of disturbing the peace by “noisy, riotous, and disorderly conduct, in a public place.”

As noted supra, appellant’s main contention is that the ordinance is, on its face, unconstitutionally vague and overbroad under the Fifth and Fourteenth Amendments of the United States Constitution. Numerous cases are cited in support of this contention.

Similar contentions have been considered by the Supreme Court of the United States with reference to various peace disturbance ordinances and laws. The problem arises principally when a person has been convicted of peace disturbance where the factual setting involved loud, insulting, obscene, offensive, or opprobrious language, rather than assaulting, striking, fighting, or physical contact with another person.

In this case the conduct which was the basis for the arrest and conviction of appellant consisted of the uttering of words, i. e., speech. The noun “conduct” includes within its meaning the act of speaking and is not restricted to physically interfering with another. There was no evidence that appellant physically abused anyone prior to the time the police undertook to arrest her for “peace disturbance”. Whatever she did while the police were arresting her was, presumably, part of the resisting-arrest charge of which she was acquitted and occurred after being told she was under arrest for peace disturbance. This case therefore comes.within that category of cases involving language only and not physical contact.

The appellant does not contend the words she is alleged to have spoken are protected speech under the First Amendment of the United States Constitution. Furthermore, there is no First Amendment claim being made at all. The question to be resolved as to facial unconstitutionality requires the court to determine whether the ordinance in question has been authoritatively construed so as to limit the application of the ordinance to readily definable conduct which is not constitutionally protected.

In 1913 this court construed the ordinance under consideration in City of St. Louis v. Slupsky, 254 Mo. 309, 162 S.W. 155, and reversed and remanded the conviction holding that where one is charged under this ordinance with breach of the peace by “violent, tumultuous, offensive and obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language” it is necessary such conduct be found to have been “calculated to provoke a breach of the peace”. 162 S.W. at 157.

In City of Kansas City v. Thorpe, 499 S.W.2d 454 (Mo.1973), the court construed a Kansas City peace disturbance ordinance and, citing most of the cases relied upon by appellant in the instant case, clearly recognized that such an ordinance could be upheld only if it did not infringe upon constitutionally protected expression and was limited to punishment of acts or conduct inciting violence or intended to provoke others to violence. In Thorpe the court, referring to Slupsky, said at 458:

“This court in 1913, in a case arising under an ordinance of the City of St. Louis, which concluded with the phrase ‘calculated to provoke a breach of the peace,’ in defining the term breach of the peace held it to be ‘a generic term, and includes all violations of public peace or order, and acts tending to a disturbance thereof. . It may consist of such acts as to tend to excite violent resentment. Bat unless they tend to excite immediate violence (emphasis supplied), abusive and insulting language will not constitute a breach of the peace unless so provided by statute.’ City of St. Louis v. Slupsky, 254 Mo. 309, 152 S.W. 155, 157 (1913).

“This is the only case we are able to find in which the term ‘breach of the peace,’ unlimited by the ordinance or statute using the term, was defined in Missouri. We find no cases of either this court or of a Court of Appeals holding to the contrary. Nor did we find any case where a conviction for breach of the peace was upheld when it involved expression of a constitutionally protected right. See City of Louisiana v. Bottoms, 300 S.W. 316 (Mo.App.1927). We note that our statute’ on disturbing the peace, sec. 562.240, RSMo 1969, V.A.M.S., which has been in effect in substantially the same form for more than one hundred years, has been limited to the prevention of violence. The annotations of the statute show that this statute, being penal in nature, has always been strictly construed; e. g., see State v. Maggard, 80 Mo.App. 286 (1899). Further, it has been since 1889 the law of Missouri that local ordinances on any subject must be in harmony with general law. City of Glasgow v. Bazan, 96 Mo.App. 412, 70 S.W. 257 (1902). It therefore appears and we hold that in Missouri it now is and always has been the law that ‘breach of the peace,’ unless otherwise defined in the ordinance or statute using the term, refers only to acts or conduct inciting violence or intended to provoke others to violence.”

In Thorpe the defendant contended the ordinance was unconstitutional under the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, sec. 10, of the Missouri Constitution, because it was (a) vague and (b) overbroad. The issues in Thorpe and the instant case as to constitutionality are very similar. They pose the question: Is a “peace disturbance” ordinance which is limited in its application to expression which is not constitutionally protected and proscribes only conduct which is intended and calculated by the actor to provoke others to violence or incites violence sufficiently specific so as to inform the citizenry of the conduct that is proscribed? Calculated is defined as that which is “likely to produce a certain effect”. Kansas City v. Graham, 502 S.W.2d 411 (Mo.App.1973).

In Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the appellant contended a New Hampshire statute under which he was convicted was unconstitutional in that it did not sufficiently define the conduct it proscribed (vagueness) and therefore violated the due process clause of the United States Constitution, Amendment XIV. The New Hampshire statute provided (315 U.S. at 569, 62 S.Ct. at 768): “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.” (Emphasis added.) The italicized portion was the part under attack. Chaplinsky was a member of Jehovah’s Witnesses and was distributing literature of his sect on the streets of Rochester, New Hampshire. Some citizens complained that Chaplinsky was denouncing all religions as a racket and the city marshal told them that Chaplinsky was conducting himself lawfully. The marshal then warned Chaplinsky that the crowd was getting restless. Sometime later a disturbance occurred and the traffic officer on duty proceeded to take Chaplinsky to the police station without arresting or informing him he was to be arrested. On the way they encountered the marshal who had been told there was a riot under way and was going to the scene. The marshal repeated his earlier warning to Chaplinsky to which Chaplinsky replied, “ ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists’.” The complaint charged Chaplinsky with addressing the foregoing words to the complainant marshal alleging them to be “offensive, derisive and annoying words and names” in violation of the statute set forth supra. 315 U.S. at 569, 62 S.Ct. at 768.

Ghaplinsky attacked the statute on First and Fourteenth Amendment grounds— freedom of speech, press, and worship — and not Fifth Amendment grounds, but the Supreme Court’s opinion is instructive with respect to specifying the conduct proscribed.

The New Hampshire Supreme Court in earlier decisions had construed the law to restrict its application to words such as have “ ‘a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed’ ”. 315 U.S. at 573, 62 S.Ct. at 770. The United States Supreme Court quoted the New Hampshire court, in part, as follows: “The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker — including ‘classical fighting words’, words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” 315 U.S. at 573, 62 S.Ct. at 770.

The Supreme Court of the United States then held: “We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213; Thornhill v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093. This conclusion necessarily disposes of appellant’s contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573.” 315 U.S. at 573-574, 62 S.Ct. at 770.

The cases reflect that First Amendment free-speech claims and Fifth Amendment claims of vagueness and overbreadth tend to overlap. This is because the question of vagueness and overbreadth necessarily involves a claim that by reason of the vagueness and overbreadth protected free speech may be punished. This was recognized in Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).

In Gooding the United States Supreme Court had before it a Georgia statute which provided: “ ‘Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.’ ” 405 U.S. at 519, 92 S.Ct. at 1104. Wilson was convicted in a Georgia court on two counts of using opprobrious words and abusive language. The Georgia Supreme Court affirmed the conviction holding that the statute was not violative of the First and Fourteenth Amendments as vague and overbroad. Wilson then sought federal habeas corpus relief on the ground that the statute was facially unconstitutional as vague and overbroad. The United States District Court held the statute to be unconstitutionally vague and broad. The Fifth Circuit Court of Appeals affirmed as did the United States Supreme Court. The facts of Gooding as stated at 405 U.S. 519—520, 92 S.Ct. 1104, n. 1, are:

“The defendant was one of a group of persons who, on August 18, 1966, picketed the building in which the 12th Corps Headquarters of the United States Army was located, carrying signs opposing the war in Viet Nam. When the inductees arrived at the building, these persons began to block the door so that the inductees could not enter. They were requested by police officers to move from the door, but refused to do so. The officers attempted to remove them from the door, and a scuffle ensued. There was ample evidence to show that the defendant committed assault and battery on the two police officers named in the indictment. There was also sufficient evidence of the use of the opprobrious and abusive words charged, and the jury was authorized to find from the circumstances shown by the evidence that the words were spoken without sufficient provocation, and tended to cause a breach of the peace. [Wilson v. State] 223 Ga. 531, 535, 156 S.E.2d 446, 449-450.

“Count 3 of the indictment alleged that the accused ‘did without provocation use to and of M. G. Redding and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: “White son of a bitch, I’ll kill you.” “You son of a bitch, I’ll choke you to death.” ’ Count 4 alleged that the defendant ‘did without provocation use to and of T. L. Raborn, and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” ’ Id., at 534, 156 S.E.2d, at 449.”

The U.S. Supreme Court’s holding that the statute was unconstitutionally vague and overbroad was based upon that court’s determination that the Georgia Supreme Court had not construed the statute so as to limit its application to “fighting” words as defined in Chaplinsky, supra. That definition is words “ ‘which by their very utterance . . . tend to incite an immediate breach of the peace.’ ” 405 U.S. at 525, 92 S.Ct. at 1107. Although Gooding relies upon Chaplinsky for the definition of so-called “fighting” words, it seems quite obvious that there is very little difference, if any, between the New Hampshire statute which was upheld in Chaplinsky and the Georgia statute that was struck down in Gooding. The only perceivable difference is that the U.S. Supreme Court found the New Hampshire Supreme Court had previously restricted the application of its statute to “fighting” words and the Georgia Supreme Court had not so restricted the application of its statute.

Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), was remanded at 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972), by the U.S. Supreme Court to the Louisiana Supreme Court for reconsideration in light of Gooding. Upon remand, the Louisiana Supreme Court again affirmed the conviction of peace disturbance and Lewis again appealed to the U.S. Supreme Court which held the New Orleans peace disturbance ordinance unconstitutional as being susceptible of application to speech protected by the First and Fourteenth Amendments. Specifically, the U.S. Supreme Court held that the Louisiana Supreme Court had not narrowed the scope of the ordinance to “fighting words” as defined in Chaplinsky. The New Orleans ordinance provided: “It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.” 415 U.S. at 132, 94 S.Ct. at 972.

The facts in Lewis are: “On January 3, 1970, appellant and her husband were in their pickup truck following a police patrol car that was taking their young son to a police station after his arrest. An Officer Berner in another patrol car intercepted and stopped the truck. Berner left his car and according to his testimony, asked the husband for his driver’s license. Words were exchanged between Berner and appellant and Berner arrested appellant on a charge of violating section 49-7. The parties’ respective versions of the words exchanged were in sharp contradiction. Ber-ner testified that appellant left the truck and ‘started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. . She said, “you god damn m. f. police-I am going to (Superintendent of Police) about this” ’ App. 8. Appellant’s husband testified that Berner’s first words were ‘ “let me see your god damned license. I’ll show you that you can’t follow the police all over the streets.” . . . After (appellant) got out and said “Officer I want to find out about my son.” He said “you get in the car woman. Get your black ass in the god damned car or I will show you something.” ’ App. 27. Appellant denied that she had used ‘any profanity toward the officer.’ App. 37. The Municipal Judge credited Berner’s testimony and disbelieved appellant and her husband.” 415 U.S. at 131, n. 1, 94 S.Ct. at 971.

In Lewis it appears the court seized on the ordinance’s proscription against “opprobrious language” and said that “opprobrious” embraces words that do not by their very utterance inflict injury or tend to incite an immediate breach of the peace. The court noted in Lewis that it had reached the same conclusion as to the word “opprobrious” in Gooding and on that basis struck down the Georgia statute. But, again in Lewis, the court directed its attention to the failure of the Louisiana Supreme Court to refine or narrow the type of speech which could be punished under the ordinance to the constitutional definition of “fighting words” announced in Ghaplinsky. In short, the Louisiana court simply held that traditionally obscene or opprobrious words are per se “fighting words” without regard to their likelihood in a particular factual setting to provoke or cause violence and upheld the ordinance on that basis. The U.S. Supreme Court, in effect, held that just because a court says an obscene word is a fighting word does not necessarily make it so in fact or law. As applied to the instant case, the substance of Lewis appears to be that, insofar as “breach of the peace” or “peace disturbance” laws or ordinances are concerned, it is essential to their constitutional validity that they operate so as to punish the speaker only when his verbal conduct (speech) is such that, in the given factual setting, it is reasonably likely to incite others to violence (breach of the peace).

The St. Louis ordinance proscribes verbal conduct (noisy, riotous or disorderly) which is calculated to provoke a breach of the peace. This provision has been construed since at least 1913, insofar as verbal conduct is concerned, to only proscribe verbal conduct which tends to excite immediate violence. Abusive and insulting language does not per se constitute a breach of the peace under this ordinance. City of St. Louis v. Slupsky, supra, at p. 157. The construction placed upon this ordinance in Slupsky was reaffirmed in City of Kansas City v. Thorpe, supra, in 1973.

The conduct or language used by the speaker and its probable effect with respect to immediate violence must be viewed in the setting in which it occurs. The police officer who hears and sees the event take place must, of course, make some judgment as to whether the acts and conduct of the speaker, in the particular circumstances, is inciting violence or is intended to and reasonably probable that such acts and conduct will provoke others to violence. The obvious purpose of the ordinance is to prevent violence by imposing a sanction on conduct reasonably calculated to cause immediate violence. When the projected violence does not occur and the person responsible for the situation is arrested for peace disturbance and removed from the scene, one of the questions which arises during the trial for peace disturbance is the same as the question the officer has to resolve immediately at the scene, to wit: Is the actor’s conduct intended to and reasonably probable to incite the other people present to immediate violence in the circumstances then and there prevailing?

This is what the St. Louis ordinance is limited to by its terms and by the decisions of this court. St. Louis v. Slupsky, supra, Kansas City v. Thorpe, supra. As such, it is neither vague nor overbroad, Chaplinsky v. New Hampshire, supra, and does not punish mere insults or opprobrious words per se as did the ordinance in Lewis v. City of New Orleans, supra, and the statute in Gooding v. Wilson, supra.

Ordinance No. 762.030, Rev.Code of the City of St. Louis 1960, is not facially unconstitutional as being vague or overbroad under the Fifth and Fourteenth Amendments of the United States Constitution.

Nevertheless, the conviction of appellant must be reversed. She was not charged with having said or done anything “calculated to provoke a breach of the peace”. It was merely charged that she did “disturb the peace by noisy, riotous and disorderly conduct in a public place . .” Nor is there any finding that her verbal conduct was “calculated to provoke a breach of the peace” nor any finding that her verbal conduct was intended to and was reasonably probable to incite others to violence. This is in accord with Slupsky, supra, where this court reversed and remanded the peace disturbance conviction because the court’s instructions to the jury ignored the requirement that the conduct of the defendant be “calculated to provoke a breach of the peace.” The instant case was court-tried and therefore instructions were not utilized. When the charge of peace disturbance is based upon verbal conduct, there is always the risk that free speech will be suppressed. The risk in this sensitive area is minimized when it can be reliably determined that the fact finder actually found the verbal conduct of the defendant was intended and calculated to provoke immediate violence. In Kansas City v. Graham, 502 S.W.2d 411 (Mo.App.1973), a conviction of peace disturbance was reversed for failure of the information to charge that the language allegedly used by the defendant was “calculated to provoke a breach of the peace” because that is essential to peace disturbance by verbal act in Missouri. City of St. Louis v. Slupsky, supra, City of Kansas City v. Thorpe, supra.

The judgment is reversed.

All of the Judges concur.