author: CORNELIUS, Justice.

text:
    Luna Marie MORRIS v. ALLSTATE INSURANCE COMPANY.
    No. 8283.
    Court of Civil Appeals of Texas, Texarkana.
    April 29, 1975.
    Stacia M. Reed, Kirkpatrick, Grant, Dennis & Reed, Marshall, Richard Grainger, Tyler, for appellant.
    Charles H. Clark, Tyler, for appellee.
   CORNELIUS, Justice.

This was a declaratory judgment action by appellee Allstate Insurance Company against its insured, James David .Copeland, wherein appellee sought a declaration that it was not obligated to defend Copeland in a pending personal injury suit filed against him by Luna Marie Morris. Ap-pellee alleged that it was not obligated to defend Copeland in that suit because the automobile he was driving when the collision occurred was not covered by its insurance policy, and because Copeland failed to comply with the notice provisions of the policy. Luna Marie Morris, the injured plaintiff in the pending damage suit, was allowed to intervene in this declaratory judgment action. In a trial to the court judgment was entered that appel-lee had no duty to defend Copeland in the damage suit because the automobile was not covered by the policy, and that ap-pellee was not obligated to pay any judgment which Luna Marie Morris might recover against Copeland. Copeland did not appeal from that judgment but intervenor Luna Marie Morris has appealed. She contends that the trial court erred (1) in holding that there was no coverage of Copeland’s automobile (2) in holding that appellee had no duty to defend Copeland in her suit against him, and (3) in holding that appellee will not be liable to pay any judgment she might recover against Copeland. Appellee contends that the trial court’s rulings were correct, and that even if they were not correct, the appellant-intervenor has no standing to complain of the judgment.

In order to properly understand this suit, certain background facts must be noticed. The personal injury suit by appellant-intervenor Luna Marie Morris against Copeland has not yet proceeded to trial or judgment. The original petition there was filed on February 24, 1971, nearly two years after the collision. When Copeland forwarded the citation which had been served upon him to the appellee, appellee forwarded him a “reservation of rights letter” advising that it disclaimed liability under the policy and that by investigating or defending the suit in his behalf it would not waive its rights to set up any and all defenses of noncoverage under the policy and specifically the defense of late notice. Copeland did not protest the reservation of rights letter or take any action with respect to it. Five days after the reservation of rights letter was mailed to Copeland, appellee filed a general denial for Copeland in appellant-intervenor’s suit against him. No other action, either by way of investigation, pre-trial work or discovery was shown to have been taken in connection with that suit. Appellee filed this declaratory judgment action against Copeland on May 7, 1971, some two months after answering for him in appellant-intervenor’s damage suit. Another two years of inaction elapsed between the filing of the declaratory judgment suit and the hearing thereof which resulted in the judgment now on appeal.

The insurance policy involved here contains the following provisions:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . ”
“No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company. Any person . . . who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person . . . shall have any right under this policy to join the company as a party to any action against the insured to determine the insured’s liability . . . . ”

Appellant-intervenor contends that even if noncoverage and late notice are valid defenses, the appellee is estopped from claiming them by the rule that even though a standard non-waiver agreement has been executed, the actions of the insurance company through its attorney, in actively working against the insured to develop grounds upon which it can deny liability, while at the same time purporting to represent the insured in the damage suit brought by the injured party, estop it as a matter of law from denying liability. See Employers Casualty Company v. Tilley, 496 S.W.2d 552 (Tex.1973).

In seeking to bring herself within the rule of Tilley, appellant-intervenor is faced with two critical questions: (1) whether the conduct of appellee through its attorney was of such character as to raise an estoppel even though there was a “reservation of rights letter”, and (2) whether appellant-intervenor, who is not the insured hut the injured party, may claim the benefit of an estoppel arising from the acts of the insurance company toward the insured who has not complained. See Utilities Ins. Co. v. Montgomery, 134 Tex. 640, 138 S.W. 2d 1062 (1940, opinion adopted). It is not necessary for us to answer these questions for three reasons: First, the covenant to defend does not inure to appellant-in-tervenor’s benefit. She has no standing to complain of the failure of appellee to defend Copeland in the suit she brought against him. Graves v. Southern Underwriters, 130 S.W.2d 360 (Tex.Civ.App. Austin 1939, writ dism’d judgm. cor.) ; Westchester Fire Insurance Company v. Rhoades, 405 S.W.2d 812 (Tex.Civ.App. Austin 1966, writ ref’d, n. r. e.). Second, according to the specific policy provisions, appellant-intervenor has no right of action against the insurance company on the questions of coverage and ultimate liability for payment of her damages until she has established her claim against Copeland by judgment or by written agreement. Bluth v. Neeson, 127 Tex. 462, 94 S.W.2d 407 (1936); American Indemnity Co. v. Martin, 126 Tex. 73, 84 S.W.2d 697 (Tex. Comm’n App.1935, opinion adopted) ; Moxon v. Ray, 125 Tex. 24, 81 S.W.2d 488 (1935 opin. adpt); Seaton v. Pickens, 126 Tex. 271, 87 S.W.2d 709 (1935, opin. adpt); Kuntz v. Spence, 67 S.W.2d 254 (Tex. Comm’n App.1934, holding approved). Third, a judgment to the effect that ap-pellee will be required to pay any judgment appellant-intervenor might in the future recover against Copeland would be an advisory declaration based upon future speculation and would not have been proper for the trial court to render even under the provisions of the Declaratory Judgment Act. Firemen’s Ins. Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). Indeed, that portion of the trial court’s judgment declaring that appellee was not required to pay any such judgment falls into the same category. As that portion of the judgment was beyond the jurisdiction of the court, the judgment will be reformed to delete it.

The judgment of the trial court is therefore reformed to delete that portion which declares that appellee is not required to pay any judgment recovered by appellant-intervenor against Copeland. That portion of the judgment which declares that ap-pellee is not required to defend Copeland in appellant-intervenor’s pending damage suit against Copeland is affirmed.

The judgment of the trial court as reformed, is affirmed.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    OMNIPLAN, INC., Appellant, v. NEW AMERICA DEVELOPMENT CORPORATION and William R. Jenkins, Appellees.
    No. 5412.
    Court of Civil Appeals of Texas, Waco.
    April 17, 1975.

      Johnson, Bromberg, Leeds & Riggs, Richard L. Jackson, Dallas, for appellant.
    Goldberg & Alexander, H. Robert Powell, Dallas, Hugh E. McGee, Jr., Houston, for appellees.
   OPINION

JAMES, Justice.

This case involves basically the question of whether Defendant-Appellee New America Development Corporation, a foreign corporation, made a special appearance under Rule 120a, Texas Rules of Civil. Procedure, or a general appearance. We hold that New America made a special appearance, did not make a general appearance, and was not amenable to process in the State of Texas, ancj thereby affirm the trial court’s judgment.

Plaintiff-Appellant Omniplan, Inc. brought this suit in Dallas County, Texas, against Defendant-Appellee New America, a foreign corporation headquartered in the State of Virginia, and Defendant-Appellee William R. Jenkins, a resident of Harris County, Texas. The suit was for labor and materials allegedly furnished by Omniplan, Inc., a management and holding company with one subsidiary and two active divisions, all primarily involved in architectural planning and interior design. New America was the owner of a land development project in Fairfax County, Virginia, while Jenkins was the primary contractor for said project. Jenkins in turn employed Omni-plan to perform architectural and designing services. Omniplan, Jenkins and New America were in the relative positions of subcontractor, primary contractor, and owner, respectively. The suit was based upon a sworn account for services performed and materials furnished allegedly at the instance and request of Defendants. Service of citation was effected upon New America by serving the Secretary of State of the State of Texas pursuant to Article 2031b, Vernon’s Ann.Texas Revised Civil Statutes, the Texas “Long Arm” Statute. New America filed a pleading denominated as “Special Appearance and Motion for Dismissal for Lack of Jurisdiction,” under Rule 120a, Texas Rules of Civil Procedure. Jenkins filed a Plea of Privilege seeking to remove the cause to Harris County, Texas, the county of his residence. Omniplan controverted Jenkins’s Plea of Privilege under Subdivision 29a, Article 1995, Texas Revised Civil Statutes, asserting that suit was lawfully maintainable against New America in Dallas County, Texas, and that Jenkins was a necessary party to such suit.

The trial court after hearing sustained New America’s “Special Appearance and Motion for Dismissal” and dismissed the suit against New America for want of jurisdiction; and in addition thereto, sustained Jenkins’s Plea of Privilege and transferred the cause of action as between Omniplan and Jenkins to Harris County, Texas.

Appellant Omniplan asserts error of the trial court, contending: (1) New America’s “Special Appearance and Motion to Dismiss” was not properly verified and was therefore a general appearance; (2) since New America’s attorney sought and obtained an extension of time (from Omni-plan’s attorney) in which to file his “Special Appearance” pleading, that New America thereby made a general appearance; (3) there was no competent evidence to support the trial court’s finding of the necessary fact elements to support the court’s conclusion of lack of jurisdiction over New America; and (4) that Jenkins’s Plea of Privilege should have been overruled. We overrule all of Appellant’s points of error and affirm.

We revert to Appellant’s first point, asserting the trial court erred in sustaining New America’s “Special Appearance and Motion to Dismiss” for the stated reason that such motion was not properly verified and therefore constituted a general appearance on the part of New America. We overrule this point.

The “Special Appearance and Motion to Dismiss” was signed and sworn to by G. Dennis Sullivan, the attorney for New America at the time said pleading was filed. The body of the jurat in question reads:

“BEFORE ME, the undersigned authority, on this day personally appeared G. DENNIS SULLIVAN, known to me to be the person whose name is subscribed to the foregoing Motion, and, after being by me duly sworn, on his oath stated that he is the attorney in this cause for the Defendant, NEW AMERICA DEVELOPMENT CORPORATION, duly authorized to make this affidavit, and that he has read and prepared the foregoing Special Appearance and Motion for Dismissal for Lack of Jurisdiction, designed to be used in said styled and numbered case, and that the allegations of fact contained therein are true and correct.”

Appellant says that nowhere in this affidavit is it stated that it was made upon the personal knowledge of the affiant, and therefore such affidavit is fatally defective. In other words, Appellant says the affidavit must show on its face that it was made from the personal knowledge of affiant; and since the affidavit in question did not so show on its face, that it is fatally defective. The testimony of affiant Sullivan at the hearing on the special appearance showed that the affidavit was based upon hearsay and not upon his personal knowledge and thereby was the affidavit impeached, Appellant contends.

Plaintiff-Appellant Omniplan never did file any special exception to this alleged defect of the affidavit, and raises this point for the first time on appeal.

Rule 120a, T.R.C.P., provides that a special appearance for the purpose of objecting to the jurisdiction of the court may be made by sworn motion by “any party either in person or by attorney.” We do not construe this rule as requiring that the affidavit must affirmatively show upon its face that the affiant had personal knowledge of the facts sworn to, nor that proof of the hearsay character of affiant’s knowledge which is not apparent on the face of the affidavit, will render it legally insufficient. On the contrary, we hold that the requirements of the rule are met by an affidavit which is clear, definite, and unequivocal, and that unless there is something in the affidavit itself to indicate to the contrary, we are bound to accept it for what it appears on its face to be. See Red Star Fertilizer Co. v. Zuck (Galveston, Tex.Civ.App.1954) 267 S.W.2d 894, no writ history, and the cases therein cited. By way of analogy to Rule 120a, which is involved in the case at bar, Rule 86 requires that pleas of privilege and controverting pleas be sworn to. These provisos are met when the affidavit to those instruments show that the affiant intended “to unreservedly swear to the allegations contained therein.” A. H. Belo Corporation v. Blanton (1939) 133 Tex. 391, 129 S.W.2d 619, 623. Unquestionably, the jurat in our case meets this test.

However, be that as it may, in the case at bar, Plaintiff-Appellant Omniplan failed to level a special exception to this alleged defect in New America’s affidavit, and thereby waived such defect, if any there was, and cannot raise this point for the first time on appeal. Rule 90, T.R.C.P.; Youngstown Sheet and Tube Co. v. Penn (Tex.Sup.Ct.1962) 362 S.W.2d 230.

In support of its contention that the affidavit must state that it is made on the personal knowledge of the affiant, Plaintiff-Appellant cites Youngstown Sheet and Tube Co., supra; Nagelson v. Fair Park National Bank (Dallas, Tex.Civ.App.1961) 351 S.W. 2d 925, NRE, and Savage v. Herrin Transfer and Warehouse Co. (Galveston, Tex. Civ.App.1949) 219 S.W.2d 101, no writ history. In our view these cases do not support Appellant’s contention. Youngstown and Nagelson each involve affidavits in connection with Motions for Summary Judgment under Rule 166A, T.R.C.P., which affidavits are required to state that they are made on personal knowledge. Savage deals with an affidavit which affirmatively shows on its face that it was not based on personal knowledge. All of these cases are distinguishable from the case at bar. Moreover, Appellant cites in further support of his contention Stewart v. Walton Enterprises, Inc. (Austin, Tex.Civ.App.1973) 496 S. W.2d 956, NRE, and Austin Rankin Corp. v. Cadillac Pool Corp. (Beaumont, Tex.Civ.App.1967) 421 S.W.2d 733, no writ history. Both Stewart and Austin deal with unsworn affidavits under Rule 120a, and therefore are not applicable to the case at bar. We overrule Appellant’s first point.

By its second point Appellant contends that New America made a general appearance because New America’s attorney “had sought and obtained an extension of time in which to file his response to Plaintiff’s Original Petition and by doing so it (New America) had generally appeared — .” We overrule this point.

In his sworn testimony, Mr. Sullivan, New America’s attorney, testified that he had spoken by telephone with Plaintiff-Appellant Omniplan’s attorney and advised him that he did intend to file some sort of pleading in the suit, but that he might need some additional time after appearance day because he did not have at that time the pleadings in the case. Omniplan’s attorney as a matter of courtesy told Mr. Sullivan that this would be all right, and assured him that no default judgment would be taken. No motion or pleading was filed in the cause concerning this extension of time, and no order was entered by the court in connection therewith. In other words, New America took no affirmative action in recognition or invocation of the court’s power, and therefore neither actually or impliedly made any general appearance. The matter consisted simply of one or perhaps two telephone conversations between the attorneys, the upshot of which was that Omniplan’s attorney allowed New America’s attorney a few days additional time in which to file his pleadings as a courtesy. Appellant contends that this amounted to an “appearance, prior to judgment, not in compliance” with Rule 120a and was therefore a general appearance, citing in support thereof Leaverton v. Leaverton (Dallas, Tex.Civ.App.1967) 417 S.W.2d 82, NRE. We do not agree with Appellant’s contention. Leaverton dealt with a written motion for continuance filed with the court by the nonresident defendant prior to the filing of a special appearance under Rule 120a. This motion for continuance was sustained by the court. There the court held that “by filing the motion for continuance appellant in effect entered a general appearance.” Leaverton does not apply to the facts of the case at bar. This informal effort on the part of New America’s attorney to secure additional time from opposing counsel in which to file his pleadings did not constitute a general appearance. Appellant’s second point is overruled.

By its third point Appellant asserts there is no competent evidence to support the factual elements of the trial court’s conclusion that it had no jurisdiction over New America. We overrule this contention. Let us briefly review the record concerning this point: The Plaintiff’s Original Petition alleges (by virtue of which Plaintiff judicially admits) that New America is a foreign corporation whose principal place of business is in Alexandria, Virginia, and which has not maintained a regular place of business in Texas and has not designated an agent upon whom service may be made. Mr. Sullivan, the former attorney for New America, testified that he. had never visited an office of New America in the State of Texas, knows of nothing which would make him think that New America has an office in Texas, has never met or talked to any employee, agent, officer or director of New America who lives or has an office in the State of Texas.

Mr. E. G. Hamilton, the president and chief operating officer of Omniplan, testified that Jenkins was the primary contractor in connection with the land development project in question located in Fairfax County, Virginia; that Omniplan was hired as a subcontractor by Jenkins to work on said land development project; that no part of this project was located in Texas; that he does not know of nor has he visited any office of New America in the State of Texas, nor has he ever seen an office for New America advertised in the State of Texas; he has never seen a telephone listing for an office of New America in the State of Texas; that he knows of no officers of New America who are residents of Texas; that he knows of no bank accounts maintained by New America in Texas; that he does not recall seeing any advertising for New America within the State of Texas; that he does not recall ever seeing a salesman soliciting for New America in the State of Texas, nor had any representative of New America ever visited Omniplan’s office in Dallas.

From this record we find not only legally sufficient evidence but ample evidence to show that New America is not amenable to process in the courts of the State of Texas, because the “minimum contacts” between New America and the State of Texas do not exist for the satisfaction of due process. International Shoe Co. v. State of Washington (1945) 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; O’Brien v. Lanpar Co. (Tex.Sup.Ct.1966) 399 S.W.2d 340; Murray v. Murray (Waco, Tex.Civ.App.1974) 515 S.W.2d 387, no writ history. The activity relied upon to establish the requisite “minimum contacts” must not be the mere unilateral acts of the Plaintiff in the forum state. See Anderson v. Shiflett (Tenth Cir.1971) 435 F.2d 1036. Appellant’s third point is overruled.

In view of our holding that the trial court correctly concluded that it did not have jurisdiction over New America, we necessarily overrule Appellant’s fourth and final point. That is to say, the trial court properly sustained Jenkins’s Plea of Privilege.

Judgment of the tiral court is affirmed.

Affirmed.


author: EVANS, Justice.

text:
    Irene WALLER, Appellant, v. COCA COLA BOTTLERS ASSOCIATION et al., Appellees.
    No. 16480.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 1, 1975.

      Murray L. Lieberman, Houston, for appellant.
    Robert G. Taylor II, Houston, for appel-lee; Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
   EVANS, Justice.

This is a products liability case. Irene Waller sued Coca-Cola Bottlers Association and Belden’s Food Giant for injuries received when a six-pack carton of Sprite, bottled by Coca-Cola, came apart as she lifted it from the display stack in Belden’s store. Mrs. Waller’s leg was lacerated by fragments of glass from the bottles which fell from the carton and broke upon impact with the floor. At the close of the plaintiffs’ evidence Coca-Cola was granted an instructed verdict. After all the evidence was presented, the trial court granted Bel-den’s motion for instructed verdict and entered a take nothing judgment against Mrs. Waller. This appeal is from that judgment, but an agreed motion to dismiss the appeal as to Coca-Cola has been filed.

Mrs. Waller testified that in August, 1970 she went to Belden’s Food Giant to buy soft drinks. She pushed a shopping basket to a soft drink display against the wall where the cartons were stacked one on top of the other. She lifted one Sprite carton from the stack in front of her and put it into the shopping cart. When she started to put a second carton into the shopping cart basket, the bottom of the carton “fell out” and all the bottles fell to the floor and broke. She still held the handle of the carton in her hand and when she looked at the carton “the bottom was just hanging down.” She testified she did not know what happened to the carton after the accident. Mrs. Waller did not become aware that anything was wrong with the carton until the bottles came out of it. She did not know how long the particular carton had been on display in the store. She looked at the carton as she picked it up but did not examine it.

Concerning her damages, Mrs. Waller testified that the fragments of the broken bottles struck her left leg cutting it and causing it to bleed badly and that immediately following the accident she went to the hospital where her wound was stitched. She testified that she was subsequently treated on five occasions but no evidence was introduced as to the cost of her medical expenses. Mrs. Waller testified she felt nothing when her leg was cut and that she no longer had any effect from the injury, although she said the injury bothered her during the two months after the accident and caused her to be nervous and upset.

In order to sustain her burden, Mrs. Waller was required to prove that she made ordinary and reasonable use of the carton, in a manner anticipated by Bel-den’s, and that she was injured as a result of an identifiable defect in the carton. McKisson v. Sales Affiliates, Inc., 416 S. W.2d 787 (Tex.1967); Coca-Cola Bottling Company of Houston v. Hobart, 423 S.W. 2d 118 (Tex.Civ.App.-Houston [14th] 1967, writ ref’d n. r. e.). Mrs. Waller testified that she was not aware that anything was wrong with the carton until the bottles fell from it and she could not testify as to any specific defect in the carton. However, it might reasonably be inferred from-her testimony that the bottom of the carton was either so weak or torn that when carried as intended, the weight of the bottles caused it to come apart. It was not Mrs. Waller’s burden to establish the specific nature of the deficiency in the bottom of the carton which caused it to come apart. It was sufficient that she prove by the circumstances that the bottom of the carton was so defective that it would not support the weight of the bottles under ordinary use. Hobart, supra; J. Weingarten, Inc. v. Delfina Obiedio, 515 S.W.2d 308 (Tex.Civ.App.-Houston [1st] 1974, writ ref’d n. r. e.).

In our opinion Mrs. Waller’s testimony raised questions of fact for the jury as to whether the carton was dangerously defective when offered for sale and as to whether such condition was the producing cause of her injury. Coca-Cola Bottling Company of Houston v. Hobart, supra; Kroger Co. v. Bowman, 411 S.W.2d 339 (Ky.1967). We are further of the opinion that Mrs. Waller’s testimony as to her physical pain and suffering raised an issue of fact as to her claim for monetary damages even in the absence of expert medical testimony. Coca-Cola Bottling Company of Ft. Worth v. McAlister, 256 S.W.2d 664 (Tex.Civ.App.-Ft. Worth 1953, no writ).

Belden’s argues that the action of the trial court in granting its motion for instructed verdict was proper because of Mrs. Waller’s failure to plead that Belden’s negligence was a proximate cause of her injuries. Belden’s contends that this defect in Mrs. Waller’s pleading was pointed out in its motion for instructed verdict and that it was not waived by failure to present special exceptions to the pleading. In view of the fact that Mrs. Waller’s petition does allege that the defective condition of the carton was the proximate cause of her injuries, we hold that she was entitled, under her pleading, to have the case submitted under her theory of strict liability. Her failure to allege “proximate cause” under her theory of general negligence would not preclude her right to seek recovery under the strict liability theory.

Belden’s further contends that Mrs. Waller’s sole point of error is too general as to entitle her to review in this court. We agree with Belden’s that this point, which merely asserts error on the part of the trial court in withdrawing the case from the jury and granting judgment for Belden’s as well as the argument made thereunder, leaves much to be desired. However, we believe the argument does point out the question of whether there is sufficient evidence of probative force to require submission of issues under the theory of strict liability. Thus, while the point may be defective we considei that a review of the question is required.

We hold that the trial court erred in instructing a verdict in favor of Belden’s Food Giant, and the trial court’s take nothing judgment as to Belden's Food Giant is reversed and remanded. The agreed motion to dismiss the appeal as to Coca-Cola Bottlers Association is granted, and the appeal as to Coca-Cola Bottlers Association is ordered dismissed.


text:
    Ex parte Edward F. BUTLER, Sr., Relator.
    No. 16501.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 17, 1975.
    Motion for Rehearing Granted and Cause Dismissed as Moot Without Opinion May 15, 1975.

      No brief filed for appellant.
    No brief filed for appellee.
   EVANS, Justice.

This is an original proceeding for writ of habeas corpus. Relator, Edward F. Butler, Sr., seeks review of a contempt order entered during the pendency of divorce proceedings.

Relator’s wife, Donna Gay Butler, filed petition for divorce in the Court of Domestic Relations No. 1 of Harris County on April 11, 1974. The temporary order entered in that proceeding on June 27, 1974 provided for temporary custody, visitation, child support and alimony during the pen-dency of the case and also contained provisions respecting the property. The final paragraph of this temporary order provided :

“It is further ORDERED, ADJUDGED and DECREED that neither party shall make any disposition of any community or separate property claimed by the parties hereto, or incur any indebtedness in connection therewith other than in the ordinary course of business

Subsequent to the entry of this temporary order, Donna Gay Butler filed motion for contempt alleging, among other things, that Relator had violated the order by selling 15,700 shares of common stock of Hib-bard, O’Connor & Weeks, Inc., a Delaware corporation, and incurring obligations in the amount of $3,286.00 by borrowing against the cash surrender value of community owned insurance policies. After hearing on the contempt motion, the trial court on February 25, 1975 found Relator to be in contempt of court by reason of his disobedience of such temporary order “in that he sold $47,100.00 of stock and borrowed $3,286.17 on insurance policies.” As punishment for such contempt, the court ordered Relator confined in the county jail of Harris County, Texas for a period of one day and until he purged himself by paying into the registry of court the sum of $25,193.00 (which is one-half of the aggregate value of the stocks sold and money borrowed) together with costs of court. Relator was committed to the custody of the Sheriff of Harris County, but has been released on bond pending final determination of this petition for writ of habeas corpus.

Relator asserts that his confinement is illegal because he sold the stock and borrowed against the insurance policies in order to pay obligations required to be paid by him under the temporary order. He contends that such sale and borrowing were within the ordinary course of business as that term is used in the temporary order. Alternatively, Relator contends that such term is so ambiguous as to render the temporary order void and unenforceable. Relator further asserts that he is now unemployed and unable to purge himself of contempt.

A petition for writ of habeas corpus presents a collateral attack upon the judgment of contempt. Unless it is shown that the judgment is void on its face or is so completely without evidentiary support as to render it void, the petition must be denied. Ex Parte Henderson, 512 S.W.2d 37 (Tex.Civ.App.—El Paso 1974, no writ); Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953).

In order for a person to be held in contempt for disobedience of a court decree, the decree must clearly define the duties imposed upon the party or the acts which he is restrained from doing. The decree should not require the party to call upon inferences or conjecture as to matters about which reasonable men might differ, and should not require further hearing before the court. Ex Parte Slavin, 412 S.W.2d 43 (Tex.1967).

The evidence presented at the hearing on the contempt motion showed that Relator, an attorney, was employed by the brokerage firm, Hibbard, O’Connor & Weeks, at the time the temporary order was entered in June, 1974. On August 28, 1974, effective September 3 of that year, his employment was terminated without severance pay. In October, November and December of 1974 and in January, 1975, Relator sold a total of 15,700 shares of the common stock of that company for a total sum of $47,100.00. He testified he sold the stock because it “was going down hill fast”; that the stock had been selling at $5.00 per share and then at $4.00 and that he was offered $3.00 and was told that if he didn’t take that price “that there wouldn’t be any market.”

In our opinion the temporary order clearly prohibited Relator from disposing of any community or separate property and his sales of the stock were in direct disobedience of the court’s order. The injunc-tive order does not permit the disposition of property, even in the course of ordinary business as contended by Relator, and its provision is a clear and unambiguous injunction against the disposition of any property during the pendency of the divorce proceedings. The evidence showed that Relator made sales of this stock over a period of four months, in four separate transactions, and during such time there was no showing of any decline in the value of the stock. Relator made no application with the court for modification of the temporary order so as to permit the disposition of this property.

It is further our opinion that Relator cannot justify his act of borrowing against the community insurance policies as being done “in the ordinary course of business” as that term is used in the temporary order. Relator testified that he encumbered the insurance policies for the purpose of obtaining funds to pay bills which the court ordered him to pay in the temporary order. This testimony did not establish that Relator’s act in borrowing against the community-owned insurance policies was done in the ordinary course of his business.

Relator’s final point is that he is unemployed and unable to purge himself of contempt. Relator testified that all of his funds had been expended and that he had been unable to find employment. The evidence showed, however, that he had .borrowed money from his brother on several occasions and he did not show that he would not be able to obtain funds from that or other sources. It was Relator’s burden to prove conclusively that he had no source from which he might reasonably be expected to obtain such funds. Ex Parte Helms, supra; Ex Parte Rohleder, 424 S.W.2d 891 (Tex.1967).

Relator made no attempt to seek relief from the court when it became obvious that he was no longer employed and could not meet the obligations imposed upon him under the temporary order. Ex Parte Williams, 469 S.W.2d 449 (Tex.Civ.App.—Beaumont 1971, no writ); Ex Parte Ramzy, 424 S.W.2d 220, 227 (Tex.1968). Neither did he produce evidence showing, as a matter of law, that he was unable to obtain funds to purge himself of the contempt. Ex Parte Ramzy, supra. We are, therefore, of the opinion that Relator’s petition for writ of habeas corpus must be denied.

In view of the fact that evidence as to Relator’s ability to purge himself of the contempt is not shown to have been fully developed upon the record, our ruling is entered without prejudice to Relator’s right to make further application to the trial court for such relief as may be warranted.

Relator’s petition for writ of habeas corpus is denied and it is ordered that Relator be remanded to the custody of the Sheriff of Harris County, Texas.


author: SPURLOCK, Justice.

text:
    CITY OF WICHITA FALLS, Texas, Appellant, v. Maggie THOMAS, Appellee.
    No. 17570.
    Court of Civil Appeals of Texas, Fort Worth.
    April 25, 1975.
    Rehearing Denied May 30, 1975.

      H. P. Hodge, Jr., City Atty., Wichita Falls, for appellant.
    Fillmore, Lambert, Farabee & Purtle and Larry Lambert, Wichita Falls, for appellee.
   OPINION

SPURLOCK, Justice.

The City of Wichita Falls, by ordinance, assessed a paving lien against plaintiff’s property for street improvements on the theory that such property was abutting property to Collard Street which the City sought to improve. Maggie Thomas, through her guardian, appealed this assessment to the District Court.

The plaintiff asserts that the street sought to be improved does not abut upon her property and therefore the paving assessment is void.

The case was tried before the court resulting in a judgment that declared the paving assessment void as being an attempted assessment against non-abutting property.

The City asserts that a triangular strip of land between the improved street and plaintiff’s property is owned by the City, is a part of the street right-of-way, and is therefore abutting property.

We affirm.

The following plat will be of assistance in understanding the situation and contentions of the parties:

Maggie Thomas is the owner of a tract out of Block 5 of the J. A Scott Survey in

Wichita Falls. In 1938 the City purchased certain tracts out of this survey to construct a street. This included property out of Block 6, east of the Thomas tract. A dirt and gravel street (known as Collard Street) was then built which at its closest point was more than 40 feet from the Thomas property. The land between Collard Street and the Thomas property remained vacant and unused.

In 1973 the City proposed to improve Collard Street with a hard surface, curb, and gutter. The assessments here involved grew out of that program.

The improvement was designed to follow generally the existing Collard Street. The right-of-way was 50 feet wide and the width of the improvement from curb to curb was 30 feet. In the northwest corner of Block 6, in the vicinity of the Thomas tract, there is a triangular tract of land about 220 feet long. The Thomas tract abuts on 165 feet of this triangular vacant strip. This strip forms a buffer between the Thomas property and Collard Street. The part of this intervening strip adjacent to the Thomas tract is 52 feet wide at the north end and 25 feet on the south end and the distance from the north to the south end of the side adjacent to the Thomas tract is 165 feet.

There is no testimony that such vacant strip between the Thomas tract and the 50 feet right-of-way of Collard Street has ever been used for street purposes.

The Director of Public Works for the City was the only witness. He testified in effect that said triangular tract would not be used in connection with the Collard Street improvements, it was nothing more than an adjacent right-of-way, it would be highly speculative as to what improvements might be done at a future date, and it would be held for future improvements, if same ever became necessary. At least this was the present plan.

The City’s attempted assessment was brought under the authority of Article 1105b, Section 6, Vernon’s Ann.Civ.St., which provides in part as follows:

“ . . . the governing body of any city shall have power by ordinance to assess all the cost of constructing, reconstructing, repairing, and realigning, curbs, gutters, and sidewalks, and not exceeding nine-tenths of the estimated cost of such improvements, exclusive of curbs, gutters, and sidewalks, against property abutting upon the highway or portion thereof ordered, to be improved, and against the owners of such property, . . . .” (Emphasis ours.) It is significant that the statute uses the term “improved.”

The trial court found that under these facts the Thomas property was not “abutting property” to the Collard Street improvement.

In the case of State v. Fuller, 407 S.W. 2d 215 (Tex.Sup., 1966) the term “abutting owner” was defined as follows:

“The term ‘abutting owner,’ when used in relation to highways, ordinarily refers to one whose land actually adjoins the way, although it is sometimes used loosely without implying more than a close proximity. See Black’s Law Dictionary, 3rd ed. 1944 ; 25 Am.Jur. Highways § 153.”

The cases analyzed below have addressed themselves to the issue of what constitutes “abutting property.”

In the case of Municipal Investment Corporation v. Triplett, 371 S.W.2d 124 (Amarillo, Tex.Civ.App., 1963, ref., n. r. e.) an old state highway adjoined the Trip-lett land. A new highway was constructed using a part of the old highway right-of-way. This left a strip of land varying in width from 30 feet to 80 feet and which was 420 feet long, constituting a part of the old highway, separating the Triplett property from the new highway. There were “lay-down curbs” permitting automobiles to be driven from the Triplett property to the new highway. There was an inference that this strip was public land but had not been maintained since 1958 and was not being used as a roadway. The evidence was clear that the strip of land was not used as a public way even though it was owned by the state, county or city.

That court speaking through Chief Justice Denton held that, “The Triplett land abuts the vacant strip and the vacant strip abuts the paving improvement. This leads to the inevitable conclusion the Triplett land does not abut the paving improvement. We are therefore of the opinion the Triplett property does not constitute abutting property within the meaning of Article 1105b, Section 6, V.A.T.S.” Therefore, the assessment was void.

In the case of State v. Fuller, supra, that court passed upon the question of what constituted abutting property. That court stated as follows: "Here the State has acquired, perhaps unwittingly, a strip of land which, according to the Fullers, it can use only for highway purposes. That did not, however, make the property part of the highway. If the additional land were not needed for highway purposes, it could be sold by the State as authorized by Article 6673a, Vernon’s Ann.Tex.Civ.Stat. The responsible officials evidently expect to widen the highway to include the strip in controversy as well as the adjoining 50 feet owned by the Fullers, but a public way has not yet been established on the State’s half of the former railroad right-of-way. At the present time, therefore, the Fullers do not own land abutting on the highway and have no right of access thereto across the tract awarded to the State in this action.” (Emphasis ours.)

In the case of In Re Resolutions Passed by City Council of Durham, 243 N.C. 494, 91 S.E.2d 171 (1956) the City had condemned an entire lot and a street had been constructed on a portion thereof. There was no evidence that the assessed lot abutted the improvement. In that case the City, through condemnation proceedings, had acquired fee simple title to an entire lot adjacent to the assessed lot but had used only a portion thereof for street purposes. This Court held, “ ‘ * * * Nor do we think that the acquisition of the whole lot for street purposes and the construction of a street and a sidewalk on a part thereof amounts to a dedication of the whole lot by the city for street purposes.

“ . . . We do not think the twenty feet abuts directly on the property Neither do we think the fact that the City of Durham obtained the triangular lot for street purposes by condemnation rather than by deed distinguishes this case from the case of Winston-Salem v. Smith, supra (216 N.C. 1, 3 S.E.2d 328, 1939).”

That court therefore held that the assessment was null and void.

In the case of Davidson v. Salt Lake City, 81 Utah 203, 17 P.2d 234 (1932) a fact situation existed which was very similar to the case here under consideration. Plaintiff’s property line was 5' back from the line of the improvement. The City received a conveyance from the owner of this 5'1 intervening strip “for street purposes.” That court held that the plaintiff did not become an abutting owner as a result of this conveyance because the acquisition by the City did not serve to straighten the line of the street. The court further found that the recital in this conveyance to the City that the same was made for street purposes is not undisputed proof of the fact recited, it is a question for judicial consideration and determination. The court further stated: “ ‘What we do hold is that the municipality cannot take land not needed for street purposes and by this method arbitrarily subject certain properties to special assessments which otherwise could not be levied against them. Such an abuse of power is a fraud in law, and equity will afford relief to the injured party.’ ”

We hold that the evidence was sufficient to support the trial court’s finding that the Thomas property was not “abutting property” in relation to the street improvement.

The following cases are additional authority for our holding: Emmons v. City of Detroit, 255 Mich. 558 238 N.W. 188 (1931, on rehearing see 261 Mich. 455, 246 N.W. 179, 1933); West Texas Const. Co. v. Mundy, 75 S.W.2d 121 (El Paso, Tex.Civ.App., 1934, no writ hist.); City of Winston-Salem v. Smith, 216 N.C. 1, 3 S. E.2d 328 (1939); and Jacob v. Mayor and Board of Trustees of City of New Iberia, 163 La. 416, 112 So. 30 (1927).

This case was tried to the court without a jury. No findings of fact or conclusions of law were filed by the court and none were requested.

The law applicable in this situation is stated as follows:

“Further, in a non jury trial, every disputed issue of fact will, consistently with the record, be presumed to have been resolved by the trial court in support of the judgment rendered.” 4 Tex.Jur.2d (Rev. Part 2, 1974) Appeal and Error — Civil Cases, Sec. 735, “Omitted or incomplete findings,” page 142.

We conclude that the judgment of the trial court is supported by the pleadings and evidence.

The judgment is affirmed.


text:
    Maxeen MITCHELL et vir, Appellants, v. BAKER HOTEL OF DALLAS, INC., Appellee.
    No. 8267.
    Court of Civil Appeals of Texas, Texarkana.
    April 15, 1975.
    Rehearing Denied May 13, 1975.

      John E. Collins, McGuire, Levy & Collins, Irving, Joe H. Tonahill, Jasper, for appellants.
    J. Dan Bohannan, Burford, Ryburn & Ford, Richard B. Ouer, Dallas, for appel-lee.
   CORNELIUS, Justice.

Appellant Maxeen Mitchell filed suit against appellee Baker Hotel of Dallas, Inc. to recover damages for personal injuries suffered when she slipped and fell in the ballroom of appellee’s hotel. The trial court granted appellee’s motion for summary judgment.

Appellant was a sales representative of Stanley Home Products Company. She came to appellee’s hotel in July of 1970 to attend a company meeting. On the second evening of her stay at the hotel, she attended an awards banquet at the hotel’s Crystal Ballroom. She remained seated at her table from about 6:30 until about 11:00 when she was called to the head table to receive an award. She had walked about twelve feet toward the head table when she slipped and fell. Appellant alleged that her fall was caused by the appellee’s negligence in (1) keeping its ballroom floor in an unusually slick condition; (2) placing an excessive amount of wax upon the floor; (3) causing the floor to have a high degree of polish; (4) failing to warn of the floor’s slick condition; and (S) failing to maintain the floor in a safe condition. Appellant contends that summary judgment was improper because she raised genuine issues of fact regarding appellee’s negligence.

The general rules applicable to cases of this kind are well settled. An innkeeper must exercise reasonable care to furnish his guests safe accommodations and to maintain them in proper condition at all times. 31 Tex.Jur.2d Innkeepers, Sec. 4, p. 386. As a corollary of that duty, the innkeeper must warn his guests of any dangerous condition which is not apparent to one exercising ordinary care. Ann. 118, A.L.R. p. 426. In a slip and fall case where the injured guest, as here, relies upon the waxed or polished condition of the floor itself as negligence rather than the presence of some foreign substance on the floor, it is not sufficient to prove merely that the floor was waxed, highly polished, or slippery. There must be proof of specific negligence either in the application of the wax or polish, or in the cleaning and maintenance of the floor. Rogers v. Collier, 223 S.W.2d 560 (Tex.Civ.App. San Antonio 1949, writ ref’d); Russell v. Liggett Drug Co. Inc., et al., 153 S.W.2d 231 (Tex.Civ.App. Dallas 1941, writ ref’d w. o. m.). See also Asmussen v. New Golden Hotel Company, 80 Nev. 260, 392 P.2d 49 (1964); Pierce v. Burlington Transp. Co., 139 Neb. 423, 297 N.W. 656 (1941); Kay v. Audet, 306 Mass. 337, 28 N.E.2d 462 (1940), and Abt v. Leeds & Lippincott Co., 109 N.J.L. 311, 162 A. 525 (1932). However, evidence that the floor was in a different condition from that which would have resulted from proper waxing and cleaning, e. g. that there was excessive wax or oil on the floor or that the floor was unusually slippery, may raise an inference that the wax or polish had been negligently applied or that the floor had been improperly cleaned or maintained. Hohlt Co. v. Routt et al., 48 S.W.2d 386 (Tex.Civ.App. Galveston 1932, writ dism’d). See also Baker v. Manning’s, Inc., 122 Cal.App.2d 390, 265 P.2d 96 (1953), and First Federal Savings & Loan Ass’n of Miami v. Wylie et al., 46 So.2d 396 (S.Ct. Florida 1950).

In a case of this nature the defendant moving for a summary judgment has a heavy burden. To be entitled to summary judgment on the basis of no negligence, he has the negative burden to refute by uncontradicted summary judgment proof every allegation the plaintiff has made of negligence proximately causing the injury. If he refutes every allegation of negligence, but the plaintiff then comes forward with summary judgment evidence tending to contradict the defendant’s negative proof, a fact issue is thereby raised which precludes the rendition of a summary judgment. See Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975); Guidry v. Neches Butane Products Company et al., 476 S.W.2d 666 (Tex.1972) ; Adam Dante Corporation d/b/a Adam and Eve Health Spa v. Sharpe, 483 S.W.2d 452 (Tex.1972); Caton v. Kelley, 424 S.W.2d 698 (Tex.Civ. App. Houston 1st Dist. 1968, writ ref’d n. r. e.); Scott v. T. G. & Y. Stores, 433 S.W.2d 790 (Tex.Civ.App. Houston 14th Dist. 1968, writ ref’d n. r. e.); Rackley v. Model Markets, Inc., 417 S.W.2d 89 (Tex.Civ.App. San Antonio 1967, writ ref’d n. r. e.) ; Vanlandingham et ux. v. First Savings & Loan Ass’n et al., 410 S.W.2d 218 (Tex.Civ.App. El Paso 1966, writ ref’d n. r. e.).

To determine if appellee here met its burden we must analyse the summary judgment proof. Appellee filed no affidavit in support of its motion, but relied wholly upon deposition testimony. The testimony of the witness George Morehead, who was head banquet houseman, and Mrs. Burks, who was the personnel director, among other things showed the following: the waxing procedures and materials used were normal and in accordance with the manufacturer’s instructions; the floor was waxed only under Morehead’s supervision and only twice a year, in the winter and in April; it had not been waxed between April and July when the fall occurred; no oil or additional wax is applied between waxings or when spots are cleaned by mopping and buffing; when the floor is waxed it is followed by ■ two or three moppings or buff-ings which remove all excess wax; More-head supervised the sweeping of the ballroom prior to the awards banquet, and the floor was not overwaxed or unduly slick; Mrs. Burks inspected the floor the morning after the banquet, and it was in a normal condition; Mrs. Burks walked throughout the floor the morning after the banquet and did not notice any slick parts, and the floor did not have much of a luster on it. In addition, there were admissions in the deposition of appellant to the effect that she noticed nothing unusual about the floor, and had no difficulty walking to her table; that she had no difficulty getting back to her feet after she fell, and she continued her trip to the head table and back to her table without difficulty; that she noticed no water or foreign substance on the floor; and that probably half of the four hundred people present that evening walked the same general route which she walked, and had no difficulty. For contradiction of appellee’s summary judgment evidence the appellant relies only upon her deposition testimony and her affidavit to the effect that the floor was slick; that it appeared to be waxed and slippery “ . . . more so than I would ordinarily expect from a hardwood floor;” that when she fell both feet slipped out from under her; that five other people fell on the floor the same night, although in an area other than where she fell; that neither her shoes nor dress impaired her ability to walk; that nothing of an alcoholic nature was served at the banquet; and that “after-wards I found a build-up of material on the bottom of my shoes that I identified as a wax substance.”

Upon careful consideration of the summary judgment proof we have concluded that appellee successfully refuted, by un-contradicted summary judgment evidence, all of the appellant s allegations of negligence. Summary judgment was therefore proper.

The allegation that the floor was “in an unreasonably slick condition” was effectively refuted by proof of the normal waxing and cleaning procedures, the inspections of the floor before and after the banquet which showed the floor to be not over-waxed -or unduly slippery but in a normal condition, by the fact that some two hundred people traveled the same route as appellant without difficulty, and by appellant’s testimony that she noticed nothing unusual about the floor and had no trouble continuing her journey after she fell. On the other hand, appellant produced no evidence that the floor was “unusually slick,” but only her assertion that it was slippery “more so than I would ordinarily expect . ”. As to the allegation that the floor had a “high degree of polish,” ap-pellee’s evidence showed the contrary, and appellant did not counter that with evidence supporting the allegation. Likewise, the allegation that the floor was not in a safe condition was refuted by appellee’s summary judgment proof which is recounted above, and was not contradicted by appellants’ summary judgment evidence. The mere fact that appellant fell does not raise an inference of negligence. Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948); 63 A.L.R.2d Ann. 634-635. Neither does the fact that others fell, constitute evidence of negligence unless it is shown what caused them to fall. The allegation that appellee placed excessive wax on the floor presents more difficulty, but we believe it likewise was refuted. Ap-pellee produced summary judgment evidence that the floor was waxed only twice a year, the last time prior to the accident being in April; that standard procedures for waxing and cleaning were always followed; that the excess wax is removed by mopping and buffing; and that immediately prior to and subsequent to the banquet, inspections revealed that the floor was in a normal condition, not overwaxed or unusually slick. On the other hand, there was no summary judgment evidence that excessive wax was placed or allowed to accumulate on the floor unless the appellants’ assertion that afterwards she identified a wax substance on her shoes can be said to raise an inference that excessive wax was present. The presence of oil or wax on the injured parties’ shoes or clothing, together with other corroborating facts or circumstances, has been held to raise an inference of excessive or improper waxing or polishing. See S. H. Kress & Co. v. Hall, 154 S.W.2d 278 (Tex.Civ.App. Galveston 1941, writ ref’d w. o. m.) ; Hohlt v. Routt et al., supra; Lyon v. Dr. Scholl’s Foot Comfort Shops, Inc., 251 Minn. 285, 87 N.W.2d 651 (1958); Baker v. Manning’s, Inc., supra; First Federal Savings & Loan Ass’n of Miami v. Wylie et al., supra; Henderson et al. v. Progressive Optical System et al., 57 Cal.App.2d 180, 134 P.2d 807 (1943); Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 20 A.2d 722 (1941). But corroborating circumstances are not present in this case. We do not believe that, standing alone, appellant’s assertion that she found wax on her shoes is sufficient to raise an inference of negligent or excessive waxing, especially since appellant did not indicate where she was or how long after her fall it was that she found the wax, but only that she found it “afterwards”. The remaining allegation of failure to warn of the floor’s slick condition was rendered ineffective by the summary judgment proof noted above, since there would be no duty to warn unless the floor constituted a dangerous condition.

Although appellee’s summary judgment proof consisted largely of testimony of its own employees who were interested witnesses, that testimony was clear, direct and positive without contradiction or circumstances tending to discredit it, and was therefore sufficient to support summary judgment. Great American Ins. Reserve Co. v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965) ; Bingham v. Gibson Products Company, Inc., of Odessa, d/b/a Gibson Discount Center, Store No. 1, 464 S.W.2d 713 (Tex.Civ.App. El Paso 1971, writ ref’d n. r. e.) and cases there cited.

Having concluded that appellee successfully met its burden of showing a lack of negligence, it is unnecessary for us to pass upon appellee’s claims of contributory negligence and assumption of risk.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Lee TEEL, Individually and as Administrator of the Estate of James Lee Teel, et al., Appellants, v. Elton Wayne POTTER et al., Appellees.
    No. 813.
    Court of Civil Appeals of Texas, Tyler.
    April 24, 1975.
    Rehearing Denied May 22, 1975.

      Fairchild, Hunt & Price, John L. Price, Center, for appellants.
    Zeleskey, Cornelius, Rogers, Berry & Hallmark, Ralph M. Zeleskey, Lufkin, for appellees.
   McKAY, Justice.

This suit was instituted by appellant, Lee Teel, individually and as administrator of the estate of James Lee Teel, deceased, to recover damages because of the death of James Lee Teel as provided by the, wrongful death statute, Art. 4675, Vernon’s Ann. Tex.Civ.St. and in his capacity as administrator to recover damages under Art. 5525, V.A.T.S., commonly referred to as the survivor statute. The damages for which recovery was sought arose as the result of personal injuries suffered by James Lee Teel in an automobile-truck collision on April 14, 1970, which personal injuries in turn resulted in the death of James Lee Teel on May 11, 1970. The Court, after considering the answers to the special issues, rendered a take-nothing judgment in favor of the appellees. We affirm.

James Lee Teel, hereinafter called Teel, age 22 and Elton W. Potter, hereinafter called Potter, age 16, were casual friends in the town of Tenaha, Texas. On the night of April 13, 1970, after driving around their home town of Tenaha, for awhile, they decided about 10 p. m. to drive over to Nacogdoches, where they went into a cafe, played some pool and drank “some amount of beer.” At all times during the evening of April 13, 1970, and the morning of April 14, 1970, the vehicle in which Teel was riding was driven by Elton W. Potter. At approximtely 12:45 a. m. on the morning of April 14th, Potter and Teel decided to return to Tena-ha. While driving within the city limits of Nacogdoches, a police car began to follow the Potter car. Potter testified he was driving within the speed limit, but that his car made excessive noise, and that the first knowledge he had of the police car was when Teel told him it was there and urged him to run from the officers to avoid arrest. Potter, in an effort to elude the police, began to increase the speed of his vehicle up to 110-120 m. p. h. Approximately i/2 mile north of the Nacogdoches city limits, with the police still in pursuit, the Potter vehicle struck the front of a truck and trailer driven by appellee John Fields and owned by appellee Melton Truck Lines, Inc., as it began to enter the highway after being parked at a service station. Upon impact, Teel was thrown from the automobile in which he was a passenger, and suffered the injuries which form the basis of this controversy. Appellant sought recovery from four defendants: Melton Truck Lines, Inc., John Fields, Elton W. Potter and his father, Homer J. Potter. This appeal is perfected against only Elton W. Potter and Homer J. Potter.

In response to special issues the jury-found that Potter failed to keep a proper lookout (1), that such was gross negligence (2), and a proximate cause of the accident (3). The jury further found Potter grossly negligent in driving his motor vehicle at an excessive rate of speed (4) and such negligence to be a proximate cause of the accident (5). Teel was found not to have been negligent (25), (28), but was found to have engaged in a contest of speed. Further, based upon the testimony of Teel’s fiance at the time of the accident, who testified that Potter told her that “if he had stopped like Jimmy asked him, the accident wouldn’t have happened,” the jury found in special issues 18 and 31 that Teel did not advise Potter to engage in a contest of speed or to drive at a greater rate of speed than an ordinary prudent person in the same situation. The Court, in interpreting the verdict, determined that Teel’s having engaged in a contest of speed violated Art. 795 P.C. (repealed in 1971) and was contributory negligence as a matter of law.

Appellant presents twenty-six points of error, the majority of which concern the submission of special issues 17, 21 and 27. (See footnote 1).

Appellant contends in his first six points that the Court erred in entering judgment based on issues 17, 21 and 27 because each is immaterial, evidentiary and not an ultimate controlling issue and should not have been submitted. No objections were made to the charge as submitted to the jury. Rule 272, Texas Rules of Civil Procedure, requires that objections to the charge not presented to the court in writing “shall be consiaered as waived.” There being no objection to these issues, these points are waived.

Points of error 7 through 15 are somewhat interrelated and in the interest of clarity will be discussed together. Appellant complains in points 7-9 that issues 17, 21 and 27 should not have been submitted, but even though submitted, were rendered immaterial by the findings to the other issues submitted. Appellant waived any objection to the submission of these issues by failing to object in the trial court. Appellant argues, however, that because the jury found Teel did not advise Potter (18) to engage in a contest of speed nor urge him (31) to drive negligently, and because Teel was not found to have failed to keep a proper lookout (25), then issues 17, 21 and 27 are immaterial. We disagree. The issues concerned here go to the heart of the controversy. A response to them was necessary to determine the involvement, if any, of Teel in the actions that caused his death. The only issue that could have rendered these findings immaterial would be a finding that Teel involuntarily engaged in the contest of speed. The only issues regarding the voluntariness of Teel were issues 23 and 24.

Points of error 10-15 involve special issues 23 and 24 in that they complain of the court’s basing its judgment on issues 17 and 21 because (1) there is no finding by the jury that James Lee Teel willfully or voluntarily engaged in a contest of speed; (2) the jury was allowed to return an affirmative answer even if Teel’s engaging in the contest of speed was involuntary and (3) the answers to these issues, when considered in conjunction with the phraseology of the issues, are so ambiguous as to make it impossible to ascertain whether the jury was finding Teel voluntarily engaged in a contest of speed. Appellant states in his brief before this court that the facts sought to be determined by these issues (17, 21 and 27) are uncon-troverted and admitted. Appellant does, however, argue that the relevant question to be determined is whether Teel was voluntarily engaged in the contest of speed. We agree that voluntariness is a necessary element in the determination of Teel’s possible culpability. In Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969) the court held that voluntary participation in a drag race on a public highway was a violation of Art. 795 (V.A.P.C.) and constituted negligence or contributory negligence per se. Therefore, if Teel was at the time of the accident, engaged in the act of racing and was thereby involved in the voluntary and unexcused participation in the violation of Art. 795, such act constitutes negligence per se. Rogers v. Murrell, 467 S.W.2d 642 (Tex.Civ.App.—Amarillo, 1971, dismissed); Shaver v. Manziel, 347 S.W.2d 20 (Tex.Civ.App.—Texarkana, 1961, n.r.e.).

Special issues 23 and 24 inquired as to whether Teel voluntarily exposed himself to injury by engaging in the contest of speed and whether he was so engaged as the result of an intelligent choice on his part. However, a jury response to these issues was conditioned upon an affirmative answer to issue No. 22 which asked whether Teel knew of the danger of injury in engaging in a contest of speed with the Na-cogdoches police officers. The jury was prevented from answering issues 23 & 24 because of a negative answer to issue 22. Therefore, as we interpret appellant’s complaint in these six points, he is contending that answers to special issues 23 and 24 were necessary to determine possible negligence on the part of Teel and that their conditional submission was in error. As previously stated, the appellant made no objections to the court’s charge and he is therefore considered to have waived his objections thereto. Further, under the express provisions of Rule 279, T.R.C.P., these issues are “deemed as found by the court in such manner as to support the judgment.” Appellant has therefore waived not only the manner of submission, but also the benefits, if any, which he might have received from a favorable answer to the issues. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W. 2d 985 (1949) ; Mohler v. Owens, 352 S. W.2d 855 (Tex.Civ.App.—Houston, 1962, no writ); Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963). We therefore conclude that points of error 7 through 15 must be overruled.

In points of error 16 through 21 appellant presents evidentiary points concerning special issues 17, 21 and 27, asserting that each is answered against the great weight and preponderance of the evidence and that there is no evidence of probative force to support their submission. However, as previously mentioned, in his brief before this court, the appellant states, “It is uncontroverted and admitted that (1) James Lee Teel and Elton Wayne Potter were engaged in a contest of speed, (2) James Lee Teel was engaged in a contest of speed, and (3) James Lee Teel should have known of the danger of engaging in a contest of speed.” A thorough search of the record substantiates these admissions and we are therefore of the opinion that points of error 16 through 21 are without merit and are overruled.

In point of error No. 22 appellant argues that the court erred in failing to enter judgment for appellant based on the jury’s answers to special issues 8 and 9. In points 23 through 26 appellant presents evidentia-ry points based on special issue No. 8.

In answer to special issue No. 8, the jury found that Potter was the owner of the 1969 Dodge automobile being operated by him at the time of the accident in question. In answer to special issue No, 9, the jury found that on the occasion in question, Potter was driving the vehicle with the permission of his father, appellee, Homer J. Potter. Appellant sued Homer J. Potter on the theory that the actions of Homer J. Potter amounted to and was a negligent entrustment of a vehicle into the hands of Potter. The crux of appellant’s claim of negligent entrustment is issue No. 8. If Potter was the owner of the vehicle, his father could not have been guilty of negligent entrustment. We therefore must first determine the validity of the “no evidence” contention concerning issue No. 8. In examining the record for evidence that supports the submission of issue No. 8 and ignoring all evidence to the contrary, we-must conclude that special issue No. 8 was correctly submitted. Further, we find that there is evidence of probative force to support the jury’s findings on this issue and the “no evidence” contention must be overruled.

In determining the factual sufficiency contentions surrounding issue No. 8 we must examine the whole record, consider and weigh all of the evidence in the case to determine whether the finding is against the great weight and preponderance of the evidence so as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In so doing, we conclude that the finding made in issue No. 8 is not against the overwhelming weight and preponderance of the evidence so as to be manifestly unjust. Points of error 22 through 26 are overruled.

The judgment of the trial court is affirmed.

      . The jury verdict was substantially as follows:
      1. Potter failed to keep a proper lookout
      2. Such failure was in heedless and reckless disregard of the rights, welfare or safety of others affected by it
      3. Was a proximate cause of collision _
      4. Potter’s driving at excessive rate of speed was heedless and reckless diregard of the rights, welfare or safety of others _
      5. Was proximate cause of the collision
      6. Potter attempting to outrun the police car was heedless and reckless disregard of rights, welfare or safety of others
      7. Was proximate cause of the collision
      8. Potter was owner of the car he was operating at the time
      9. Potter was driving it with permission of his father, Homer J. Potter
      10. Potter was not a reckless and incompetent driver
      13. Fields did not fail to keep a proper lookout
      14,15. Fields driving his vehicle into path of Potter’s vehicle was not negligence
      17. Potter and Teel were engaged in a contest of speed
      18. Teel did not advise Potter to engage in a contest of speed
      21. Teel was engaged in a contest of speed
      22. Teel did not know of the dangers of injury in engaging in a contest of speed
      23. (conditioned on affirmative answer to 22) Did Teel voluntarily expose himself to injury by engaging in such contest of speed? (not answered)
      24. (conditioned on affirmative answer to 23) Did Teel by engaging in such contest of speed do so as a result of an intelligent choice on his part? (not answered)
      25. Teel did not fail to keep a proper lookout
      27. Teel should have known of the dangers of engaging in a contest of speed
      28. Teel’s engaging in a contest of speed was not negligence
      30. Speed of Potter vehicle was not the sole cause of the occurrence in question
      31. Teel did not urge Potter in such manner as to cause him to drive at a greater rate of speed than a person using ordinary care would have driven.

      . Art. 795 states: “No race or contest for speed between motor vehicles of any kind shall be held upon any public highway.”


author: KEITH, Justice.

text:
    Joel E. BARNETT, Appellant, v. Peter W. MAIDA et al., Appellees.
    No. 7694.
    Court of Civil Appeals of Texas, Beaumont.
    April 24, 1975.
    Rehearing Denied May 15,1975.

      Larry P. Peyton, Houston, for appellant.
    James D. McNicholas, Beaumont, for appellees.
   KEITH, Justice.

Plaintiff below appeals from an order of dismissal of his suit after the trial court had sustained a plea in abatement (which was in actuality a plea to the jurisdiction) which urged the plea of res judicata and estoppel by judgment. No evidence was offered on the hearing but the trial court took notice of certain prior proceedings in the same court in entering the order of dismissal.

Cause No. E-92301 upon the docket of the 172nd District Court of Jefferson County, Texas, was a suit brought by our present plaintiff, Barnett, against Maida and Moor, our present defendants, involving certain transactions relating to stock which plaintiff at one time owned in a corporation known as Stadium Center in Beaumont. In that case the trial court entered summary judgment for the defendant Maida on April 30, 1973, and for the defendant Moor on May 22, 1973.

The cause was duly appealed to this court where it bore No. 7533 and was, by this court, affirmed with an opinion bearing date of December 13, 1973. Barnett v. Maida, 503 S.W.2d 610 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.). Barnett’s motion for rehearing was overruled, without written opinion, on January 10, 1974. Barnett duly filed his application for writ of error on February 11, 1974, and it was docketed in the Supreme Court of Texas under No. B-4485. Thereafter, on May 22, 1974, the Supreme Court entered its order refusing the application with the notation, no reversible error, and said judgment became final on June 10, 1974.

The present suit, No. E-100186 upon the docket of the 172nd District Court of Jefferson County, Texas, was filed on May 2, 1974. It involved the same parties, both plaintiff and defendant, and the identical subject matter that had been involved in the prior litigation. In the present suit, the gravamen of the complaint is that on May 3, 1972, “Maida and Moor wrongfully conspired to have the corporation convert Barnett’s stock by cancelling same and unlawfully appropriating same as treasury stock of the corporation, all to the benefit of Maida and Moor.” Further allegations were to the effect that by reason “of said wrongful conversion, Maida and Moor directly increased their equity ownership of Stadium Center, thereafter jointly owning one hundred per cent of the outstanding shares of Stadium Center.” Plaintiff sought recovery of $250,000 for the alleged wrongful conversion of his stock and a like amount as exemplary damages.

At the outset of our discussion, we invoke the rule stated in Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763 (1942):

“It is the established law of this state that courts may take notice of their own records and a former judgment may be held to be conclusive in a subsequent action when the record shows a judgment rendered in a cause involving the same subject matter between the same or practically the same parties, even though no plea of res judicata was interposed in the subsequent suit.”

Accord: Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961); McKenzie v. Frost, 448 S.W.2d 520, 523 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.) ; Allright, Inc. v. Galbreath, 469 S.W.2d 810, 811 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

The trial court took notice of its own records and there was no necessity for the tender of formal proof of the facts disclosed by the trial court’s own files. Similarly, under the authorities noted above, we have taken notice of our own records involving the same case and parties. Point one is overruled.

The early case of Foster v. Wells, 4 Tex. 101, 104 (1849), recognized the rule that a judgment or decree of a court of competent jurisdiction was final as to the matters determined but extended it further by saying: “‘[I]t is not only final as to the matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided.’ ” This rule was quoted in the leading case on the subject, Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 99, 47 Am.St.Rep. 79 (1894), and is still valid. Freeman, supra, was cited by our Supreme Court recently in Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex.1963), and Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971).

Plaintiff seeks to avoid this rule by contending:

“It must be remembered that the cause of action asserted by Barnett in the current litigation is separate and distinct from that asserted in the prior litigation, notwithstanding that the parties are the same and that some of the ancillary events giving rise to the cause of action are the same.”

Further, plaintiff argues: “The primary thrust of this appeal is that this action arose from events that transpired on May 3, 1972. The operative facts which give rise to this cause of action were at no time plead nor considered in the prior litigation.”

We pause to note that the date mentioned above (May 3, 1972) lacked only three days being one year before Maida’s summary judgment was entered, while that for Moor was entered eleven months thereafter. If the present allegation amounts to the assertion of a cause of action, it is readily apparent that plaintiff should have asserted it in the prior proceeding. Abbott Laboratories v. Gravis, supra.

Plaintiff also seeks to avoid the bar of res judicata by arguing, in substance, that the “only cause of action available to Barnett under the record of the prior litigation was one for return of his stock,” while the present cause of action is for conversion thereof. Again, we disagree. An examination of the pleadings in the prior suit discloses that conversion was pleaded; but, as reflected in our prior opinion, was not discussed since we placed our decision upon another ground.

In the prior suit, the trial court entered identical judgments for the two defendants: that the plaintiff, Barnett, “take nothing . . . and that the said defendant ... go hence with his costs without day.” Upon appeal, this Court, finding no error in the proceedings below, entered our judgment that “the judgment of the court below be in all things affirmed.” After the refusal of the application for the writ of error, our judgment became final and was certified below for observance.

Plaintiff’s contention that this court decided a different case from that now presented is without merit. The late Justice Norvell, while upon the San Antonio Court of Civil Appeals, in Chandler v. City of Corpus Christi, 272 S.W.2d 646, 648 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.), addressed the question directly, saying:

“While it appears that the only specific point of law discussed by this Court in its opinion was one dealing with the question of the delivery of the deed, the scope of operation of the judgment is not necessarily reflected by the opinion but rather by the judgment itself and the judgment roll.” (emphasis supplied)

So it is here. While our opinion spoke to only one ground of recovery, our judgment affirmed a take nothing judgment entered by the trial court wherein the issue was presented by the pleadings.

In the present case the parties are identical, the subject matter of the litigation is the same. Our prior record, as well as the present record, demonstrates that the suit of Barnett to recover the stock, or its value, has been sought in each case. Points three and four are overruled. Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971); Ogletree v. Crates, supra (363 S.W.2d 431, 435). We do not find it necessary to discuss plaintiff’s second point relating to the plea of limitations.

Finding no error, the judgment of the trial court is

Affirmed.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Albert MORRIS, etc., Appellant.
    No. 36281.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 13, 1975.

      John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, James C. Jones, John E. Bell, Asst. Public Defenders, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Albert Morris was tried and convicted of exhibiting a deadly weapon in a rude, angry and threatening manner. Section 564.610, RSMo 1969, V.A.M.S. The court imposed a five-year sentence under the Second Offender Act.

There is no contention the evidence was insufficient, and the facts are undisputed. Two passengers on a crowded rush-hour bus testified defendant repeatedly displayed an open knife several inches from their bodies in a threatening, abusive manner. The same witness also testified to defendant’s other acts about the same time, which included harassing other passengers by displaying his knife, using profanity, and ordering people about.

On appeal, defendant contends the court erred in three respects: (1) in refusing defense counsel’s request for a longer recess and in refusing counsel’s request to make a record of his desire for a longer recess; (2) in permitting testimony of other crimes; and (3) in refusing to instruct the jury on the assertedly “lesser included offense” of common assault. We find no merit in these contentions.

Pertinent to defendant’s first contention of error is the following colloquy, which occurred at the close of the State’s case: “MR. BELL (defense counsel): At this time, your Honor, the defense would waive the right to make an opening statement, and I would request at this time a moment to confer with my client. THE COURT: We will be in recess in our places. Proceed.”

Counsel did not object to the court’s ruling, and the record discloses that a short time later, court recessed for lunch. After the lunch recess, defense counsel informed the court he and his client had discussed the advisability of defendant’s testifying and had determined defendant would not take the stand.

Counsel alleges by a post-trial affidavit that when the court granted the recess in place, he sought to make a record of his request for a recess outside the jury’s presence. He asserts the court’s denial of his request forced him to discuss in the jury’s presence whether his client would testify and denied him the right to make a record of his desire for an out-of-court recess and of his reasons therefor.

Appellate courts must accept the record as certified. McCandless v. Manzella, 369 S.W.2d 188[6] (Mo.1963). We do not consider evidence by affidavit which attempts to alter the transcript, which counsel has approved. Although we may direct a trial court to supply a material omission or correct a prejudicial misstatement in the record, we decline to do so in the absence of a showing of harmful error. Hendershot v. Minich, 297 S.W.2d 403[11-15] (Mo.1956). In this case there is no such showing.

We first note that counsel did make a record of his request for time to talk with his client. The court granted the moment’s time counsel requested. Counsel stated later that he and his client had discussed the matter of testifying and had elected to waive that right. There is no indication of prejudice to defendant. See State v. Bobbitt, 465 S.W.2d 579[1, 2] (Mo. banc 1971).

Defendant next contends the court erred in permittiing a witness to testify defendant flourished his knife at an unnamed third person since that constituted proof of a crime with which defendant was not charged.

The general rule is that evidence of separate and distinct crimes is not admissible unless it tends to directly establish the guilt of the charge for which the defendant is on trial. State v. Cox, 508 S.W.2d 716[6, 7] (Mo.App.1974). Exceptions to the rule are well recognized. Evidence of other crimes is admissible to establish identity, intent or motive, absence of mistake, or a common scheme or plan embracing crimes so related that proof of one tends either to establish the other or to establish the identity of the person charged. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304[1] (Mo. banc 1954). If evidence is logically pertinent by tending to prove a material fact in issue, courts will not reject it merely because it incidentally proves defendant guilty of another crime. “Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors.” State v. Reese, supra, at 307, 1.c. See also State v. McElroy, 518 S.W.2d 459 [6] (Mo.App.1975).

As said, where proof of other offenses tends to establish a common plan or design, such proof is admissible. In State v. Gray, 478 S.W.2d 654[7] (Mo.1972), defendant was charged with murdering a deputy sheriff during the course of an arrest. The court permitted testimony to the effect that a second officer was also shot and wounded by defendant during the fray. The court held the second shooting “was admissible as a part ‘of a continuous occurrence intimately connected with the crime for which defendant was being tried.’ ” See also State v. Lunsford, 338 S.W.2d 868 [4] (Mo. 1960), State v. Cox, supra at [9], and State v. Scown, 312 S.W.2d 782[8] (Mo.1958). And in State v. Griffin, 497 S.W.2d 133[1] (Mo.1973), the court admitted evidence that a defendant charged with committing sodomy against one person had also committed sodomy against another at about the same time. The court reasoned that “the improper conduct of defendant with another ‘was but a part of a continuous occurrence intimately connected with the act specifically averred.’ ”

In this case defendant was charged with flourishing a knife at a particular person. But the record discloses that this act was but part of a continuing escapade of harassing and intimidating the bus passengers generally. Defendant cursed at passengers, ordered some off the bus, asked one man for money, and displayed his knife at various times in a rude and threatening manner. Under these circumstances, the court was not required to nicely sift the evidence in order to delete any possible mention of other crimes occurring during this connected series of events. We find no error in the admitting of testimony about the unnamed passenger.

Defendant’s final contention is that the court erred in refusing to give an instruction on common assault, because the evidence showed a lesser included offense of the charge of exhibiting a deadly weapon.

When the evidence shows a defendant may not be guilty of the offense charged, but rather of a lesser included offense, the court must so instruct the jury. State v. Walker, 505 S.W.2d 119 [6] (Mo. App.1973). But even when the offense charged necessarily includes a lesser offense, an instruction as to the latter may not be required. “The test of whether an instruction on common assault is demanded is whether ‘the evidence shows that a defendant may not be guilty of the offense charged, but may be guilty of an offense necessarily embraced in the charge . . . State v. Leigh, 466 S.W.2d 685[2] (Mo.1971). In Leigh, defendant was charged with sodomy. The Missouri Supreme Court held the trial court did not err in refusing a common assault instruction, even though the act of sodomy necessarily included simple assault. Similarly, in State v. Chandler, 314 S.W.2d 897[7] (Mo.1958), the court held it was not error to refuse a common assault instruction when the evidence disclosed defendant was guilty of forcible rape.

In State v. Berry, 361 Mo. 904, 237 S. W.2d 91 [6, 7] (1951), the court held that no common assault instruction was warranted when the charge of attempted rape was proved. In State v. Newman, 391 S. W.2d 207[3] (Mo.1965), the court held it was not error to refuse an instruction on malicious destruction of property when the charge of attempted burglary was proved; and see State v. Kelly, 365 S.W.2d 602 [8] (Mo.1963), holding the court did not err in refusing to instruct on possession of stolen property when evidence supported the charge of stealing.

We need not decide here whether common assault is a necessarily included offense of the charge of exhibiting a dangerous and deadly weapon. Even if we were to find that common assault is necessarily included in the offense charged, this defendant would not be entitled to a common assault instruction. When the evidence shows, as it does here, guilt of the more serious crime charged, and no other interpretation of defendant’s conduct is reasonably possible, and there is nothing to justify a finding of common assault only, defendant is not entitled to an instruction on common assault. State v. Watson, 364 S.W.2d 519[6] (Mo.1963).

We find no error in the trial court’s refusal of a common assault submission. The evidence clearly showed defendant had committed the offense charged rather than simple assault.

The judgment is affirmed.

KELLY and STEWART, JJ., concur.

      . No Missouri cases hold that common assault is a lesser included offense of the charge of exhibiting a deadly weapon. Cases do hold that common assault is not a lesser included offense of a charge of committing indecent liberties (State v. Charlton, 465 S.W.2d 502 [3] (Mo.1971), or of a charge of incest (State v. Akers, 328 S.W.2d 31 [9] (Mo.1959), or of a charge of molesting a minor (State v. Kornegger, 255 S.W.2d 765 [12] (Mo.1953).


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. John D. HAWTHORNE, Appellant.
    No. KCD 27034.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      Lloyd F. Dieckman, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Appellant, John D. Hawthorne, was charged by information with the crime of feloniously molesting his minor child in violation of Section 563.160 RSMo 1969, V.A.M.S. Upon trial the jury found him guilty and fixed his punishment at five years in the Missouri Department of Corrections. Judgment and sentence were entered accordingly, and he appeals.

Defendant raises issues concerning alleged error in permitting his wife to testify and a claim of error in permitting the prosecutor to ask leading questions of a very young sister of the victim. The judgment and conviction are affirmed.

The evidence presented at trial in the light of the jury verdict establishes factually that around noon on Saturday, December 30, 1972, defendant went to the home of his estranged wife and picked up his three minor daughters who were to spend Saturday afternoon and night with him. The four of them spent the afternoon and part of the evening visiting relatives but eventually went to defendant’s apartment and spent the night. The three minor girls all slept in the same bed. One of the girls, K — , who was nine years old, testified that after all of the girls had gone to bed, the defendant came into the room, got in bed • with her and disrobed her. She testified that defendant then laid down on top of her and touched her between her legs with his hands. Although simple and childish, her further testimony indicates clearly that defendant proceeded to have sexual intercourse with her.

Defendant returned the three girls to his wife’s house the next morning. The wife, Helen Hawthorne, testified that she noted nothing unusual about the children at that time. She further testified that all day Sunday the children were under the strict supervision of their grandmother while she was at work. That evening she took her daughters to a New Year’s Eve church service where they were never out of sight of the adults. When they returned home, K— came to her and told her that she was discharging. K— explained to her mother what had happened and was taken to Children’s Mercy Hospital. A physical examination of K— at Children’s Mercy Hospital revealed abrasions on the floor of the vaginal vault, hyperemia of the cervix, and the presence of a greyish exudate.

Defendant’s first point on appeal contends that the trial court erred when it permitted the wife, Helen Hawthorne, to testify against her husband. He claims that the common law prohibition of one spouse testifying against the other is still law in Missouri and that the trial court erred when it overruled defendant’s objection to her testifying. The point is without merit, for the Missouri Supreme Court long ago announced that “the wife, testifying voluntarily, is a competent witness against her husband in a prosecution for acts constituting a crime of personal violence against her child.” State v. Kollenborn, 304 S.W. 2d 855, 864 (Mo. banc 1957). That a charge of molestation is a crime of personal violence against the child is apparent.

Defendant attempts to distinguish the Kollenborn case, claiming that, in Kollen-born, the wife was present when the crime was committed, could offer direct testimony thereto and was the only one who could testify concerning it. A reading of Kollen-born does not admit of such a limitation. The opinion does not recite that the wife directly witnessed the child’s mistreatment, nor is it clear she was even in the same room. Rather, it appears that the wife’s testimony was used to establish the fact that only she and her husband had access to the child when it was probably injured. The fact that defendant had opportunity to commit the crime was one of the facts sought to be established by the testimony of Helen Hawthorne in the instant case.

Any doubt concerning the Kollenborn case is laid to rest by the later case of State v. Greer, 313 S.W.2d 711 (Mo.1958). In Greer, the defendant was charged with the statutory rape of his minor daughter. The wife testified that on the day in question she had gone to a show, leaving the defendant with the children and that upon her return she found one of her daughters bleeding and took her to a hospital. The circumstances established by the wife’s testimony in Greer were virtually the same circumstances sought to be established by the wife’s testimony in the instant case, namely, the opportunity of the defendant to commit the crime and the fact of the child’s bleeding. The Missouri Supreme Court, citing Kollenborn, held that the lower court did not err in permitting the wife to testify on behalf of the State.

There was no error in the instant case in permitting Helen Hawthorne to voluntarily testify against her husband standing trial for a crime of personal violence committed against her child. State v. Kollenborn, supra; State v. Greer, supra.

Defendant’s second and final claim is that he was denied the right of confrontation because of the failure of witness M— to respond to the leading questions of the prosecutor. M— was K — ’s eight-year-'old sister and was present when the crime was committed. The State called her to the witness stand immediately after K— had testified. She began by saying that although she did not remember the last time she was at her father’s house, she did remember being there with her sisters around the first of the year. They h.ad left home in the afternoon and had first gone to her aunt’s house. However, they did not spend the night there, but spent the night at her father’s house. She put on her pajamas and went to bed with her sisters. They all slept in the same bed. She testified that after going to bed that night, someone else got in bed with her. Later, she denied that anyone else had gotten into bed with her after she had retired. After this contradiction, there follow several pages of strained testimony which form the basis of defendant’s complaint.

This portion of the child’s testimony may be characterized in part. After the contradiction, the prosecutor did ask a leading question about the defendant getting into the sister’s bed. On objection and request, the court struck the question and directed the jury to disregard. Then, under proper questioning, but after some repetition, the witness said that someone came into the room. Thereupon, the defendant in colloquy with the court and counsel out of the presence of the jury, objected to further questioning on the grounds that the witness either lacked the “ability” or the “willingness” to testify. The court pointed out the fact of the witness’ obvious reluctance, but indicated he would permit the State to “pursue this just a little bit longer.” The witness then responded to nonleading questions to indicate the defendant came into the bedroom that night but did not respond when queried concerning what then occurred. Those questions and answers were as follows:

Q (By McMcNearney) M — , what happened after your daddy came into the room that night?
A (No response.)
Q Did he come over to your bed?
A Yes.
Q What did he do ?
A (No response.)
Q Can you remember what he did ?
A (No response.)
Q Did he get into bed with you, M-?
MR. DIECKMAN: I will object to his leading the witness.
THE COURT: Sustained.

There followed a colloquy between court and counsel in which the court indicated he would not permit the prosecutor to go on leading the witness. The prosecutor thereupon dispensed with her testimony and defense counsel declined the proffered opportunity to cross-examine her.

Before trial, the court had examined this child witness to determine her competency to testify. At that pre-trial examination, she answered all but two questions of counsel and court, and apparently did so in a prompt manner. At that examination, she said she remembered what happened at her father’s house around the first of the year and said she could truthfully testify to what occurred. The testimony of K— also placed M— at the scene of the crime. This pre-trial examination of M— and the trial testimony of K— fully warranted the prosecutor’s belief that M— could testify about what had occurred.

In this posture, neither the prosecutor nor the court could anticipate that M— would not respond to the questions asked. When this youthful witness proved timid and hesitating, it was discretionary with the court as to whether or not to permit the asking of leading questions, and this exercise of discretion does not constitute error unless the discretion is abused. State v. Coffman, 360 Mo. 782, 230 S.W.2d 761 (1950).

This record reveals no such abuse of discretion. Examination of the record shows that some of the questions asked were objected to as leading and that some of the objections were sustained. Further, some of the unobjected to questions received answers, and some did not. Defendant complains only of what he claims were leading questions, which were not answered. In this light, there were only two unobject-ed to questions which did not at one point or another receive answers. They were propounded immediately after M— had acknowledged that her father had come into her room that night and had come over to the bed and are set forth verbatim above.

The next question received a sustained objection, and there were no more questions asked. The defense counsel declined the opportunity to cross-examine. These questions were not in fact leading, for they do not suggest the answers, and there was no abuse of discretion in permitting them to be asked.

Defendant cites the cases of Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and State v. Gordon, 391 S.W.2d 346 (Mo.1965), in support of his claim that the failure of the witness to respond to these questions violated his right of confrontation. In both Douglas and Gordon, in the face of repeated invocations of the Fifth Amendment, the prosecutor continued to read a prior statement to the jury under the guise of interrogation. The United States Supreme Court in Douglas, and the Missouri Supreme Court in Gordon, held that the witness was unavailable for cross-examination by his invocation of the Fifth Amendment, and that the continued recitation of the prior statement to the jury could have been taken by the jury to be the equivalent of testimony. Since it was seen to be the equivalent of testimony, and since the witness was not available for cross-examination, the defendant’s right of confrontation was violated. In the instant case, the mere failure to respond to two non-leading questions does not rise to the level of testimony by the prosecutor, as was the case in Douglas and Gordon, and did not violate appellant’s right to cross-examination.

The judgment is affirmed.

All concur.