text:
    MEMBERS MUTUAL INSURANCE COMPANY, Appellant, v. Anexial MUCKELROY et al., Appellees.
    No. 16439.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 27, 1975.
    Rehearing Denied April 3, 1975.
    Second Rehearing Denied May 1, 1975.

      Gordon A. Holloway, John Palmer Hutcheson, Houston (Sewell, Junell & Riggs, Houston, of counsel), for appellant.
    Miller, Gann & Perdue, Gerald H. But-trill, Houston, for appellees.
   EVANS, Justice.

We are here concerned with the construction of revised Rule 277, Texas Rules of Civil Procedure, which became effective September 1, 1973.

This suit resulted from an intersection collision between the vehicle of Jasper and Anexial Muckelroy and a vehicle operated by Verdie Webber, an uninsured motorist. The Muckelroys were in a funeral procession proceeding north on Lockwood Street in the righthand lane. Verdie Webber was proceeding south on Lockwood in the inside lane, intending to make a left turn onto Cavalcade Street. As she proceeded to make the lefthand turn, her vehicle was struck by the Muckelroy vehicle. After a jury trial, judgment was entered for the Muckelroys against Verdie Webber and Members Mutual Insurance Company for the aggregate amount of $4,962.50 plus interest. The issues and explanatory instructions submitted to the jury, and its responses, were as follows:

“By the term ‘negligence,’ as used in this charge is meant a failure to do that which a person of ordinary prudence, in the exercise of ordinary care, would do under the same or similar circumstances, or the doing of that which a person of ordinary prudence, in the exercise of ordinary care, would not do under the same or similar circumstances.
“By the term ‘ordinary care’ is meant that degree of care which would be exercised by a person of ordinary care and prudence under the same or similar circumstances.
“By the term ‘proximate cause’, as used in this charge, is meant a cause which in a natural and continuous sequence, produces an event and without which the event would not have occurred; and to be a proximate cause of an event, it should have been reasonably anticipated and foreseen by a person of ordinary care, and prudence, in the exercise of ordinary care, that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.
“By the term ‘preponderance of the evidence’ as used in this Charge is meant the greater weight and degree of credi-> ble evidence before you.

SPECIAL ISSUE NO. 1.

“Whose negligence, if any, do you find from a preponderance of the evidence proximately caused the collision made the basis of this suit ?
“ANSWER: (a) The defendant, Ver-die Webber.
(b) The plaintiff, Jasper Muckelroy.
(c) Both.
“(a)”

SPECIAL ISSUE NO. 2.

“Do you find from a preponderance of the evidence that on the occasion in question Verdie Webber failed to yield the right-of-way to the automobile driven by Jasper Muckelroy?
“You are instructed that the driver of a vehicle within an intersection intending' to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.
“ANSWER: ‘We do’ or ‘We do not.’
“We do.”
If you have answered Special Issue No. 2 ‘We do,’ and only in that event, then answer:

SPECIAL ISSUE NO. 3.

“Do you find from a preponderance of the evidence that such failure was a proximate cause of the occurrence in question ?
“ANSWER: ‘We do’ or ‘We do not.’
“We do.”

SPECIAL ISSUE NO. 4.

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate ANEXIAL MUCKELROY and her husband, JASPER J. MUCKELROY, for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question ?
“You will consider the following elements of damages, if any, and none other :
“a. Physical pain and mental anguish which she has suffered in the past.
“b. Physical pain and mental anguish which, in reasonable probability, she will suffer in the future.
“c. Loss of her earnings in the past.
“d. Loss of earning capacity which, in reasonable probability, she will sustain in the future.
“e. Loss of her household services in the past.
“f. Loss of her capacity to perform household services which, in reasonable probability, will be sustained in the future.
“g. The reasonable expenses, if any, for necessary medical care received by ANEXIAL MUCKELROY in the past for treatment of her injuries resulting from the occurrence in question.
“ 5000,00 for A thru G_”

In its first three points of error Members Mutual complains that the trial court erred in submitting Special Issue No. 1 over objection that there were no pleadings sufficient to warrant its submission; that such issue failed to limit the jury to a consideration of the specific acts of negligence alleged (i. e., failure to keep proper lookout and make timely application of brakes) and that the form of the issue constituted a general charge.

Under Rule 277, the trial court is authorized to submit a case on special issues without request of either party or if a party requests, the court is required to submit on special issues. An exception to this requirement, not applicable here, is that “for good cause subject to review or on agreement of the parties, the court may submit the same on a general charge.”

The rule provides that special issue submission shall be of those “issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case.” The question of negligence is a “controlling issue” in this case.

The rule further provides that it “shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly.” In the case before us the trial court elected to make a broad form of submission and we are of the opinion this was authorized by the rule.

The fourth paragraph of Rule 277 provides :

“The court may submit special issues in a negligence case in a manner that allows a listing of the claimed acts or omissions of any party to an accident, event, or occurrence that are raised by the pleadings and the evidence with appropriate spaces for answers as to each act or omission which is listed. The court may submit a single question, which may be conditioned upon an answer that an act or omission occurred, inquiring whether a party was negligent, with a listing of the several acts or omissions corresponding to those listed in the preceding question and with appropriate spaces for each answer. Conditioned upon an affirmative finding of negligence as to one or more acts or omissions, a further question may inquire whether the corresponding specific acts or omissions (listing them) inquired about in the preceding questions were proximate causes of the accident, event, or occurrence that is the basis of the suit. Similar forms of questions may be used in other cases.”

As we understand this provision, considered in the light of other language in the rule, the trial court “may submit” issues in a negligence case in a manner which allows a listing of the claimed acts or omissions so that the issue itself tends to limit the jury’s consideration to those particular “claimed acts or omissions”, but the trial court is not required to adopt this form of submission. The argument of Members Mutual is that unless the form of submission limits the jury in its consideration to those specific acts or omissions of negligence alleged, the jury is without guidance as to the elements which it may properly consider in its deliberations and its verdict may be founded upon varying convictions of individual jurors as to different acts or omissions. This argument has logic and prior to the revision of Rule 277, formed the basis for the requirement that separate inquiries be submitted 'regarding each specific act of negligence alleged. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); Barclay v. C. C. Pitts Land & Gravel Co., 387 S.W.2d 644 (Tex.1965). However, we believe the intent manifested by the revision of Rule 277 is that the trial court shall have greater discretion in the form of submission in negligence cases, and that the rule abolishes the requirement of Fox v. Dallas Hotel Company, 111 Tex. 461, 240 S.W. 517, that issues be submitted “distinctly and separately.” Shasteen v. Mid Continent Refrigerator Co., 517 S.W. 2d 437 (Tex.Civ.App.—Dallas 1974, no writ hist.).

In a recent decision, Mobil Chemical Company v. Bell, 517 S.W.2d 245, 255 (Tex.1974), the rule was explained by Justice McGee as follows:

“The rule means that in an ordinary negligence case, where several specific acts of negligence are alleged and evidence as to each is introduced, the submission of a broad issue inquiring generally whether the defendant was negligent is not error and is not subject to the objection that the single issue inquires about several elements or issues.

The revision of Rule 277 brings the submission of issues in personal injury law under the same principles that have been recognized in other areas of the law. Pope, “A New Start on The Special Verdict,” 37 Tex. Bar Journal 335, April 1974; Pope and Lowerre, “Revised Rule 277 — A Better Special Issue System for Texas,” 37 Southwestern Law Journal 577 (1973). For example, in actions for title to land, the controlling issue of “peaceable and adverse possession” has long been submitted “broadly” with appropriate explanatory instructions. Under such method of submission, a jury has been at liberty to respond to the broad question of “peaceable and adverse possession” even though the individual jurors may not have had unanimity of belief as to the various evidentiary sub-issues which formed the basis for their decision. Green v. Blanks, 342 S.W.2d 141 (Tex.Civ.App.—Austin 1960, writ ref’d n. r. e.).

We note that the suggested form of the Pattern Jury Instruction Committee to revised Rule 277, is that which is based upon the fourth paragraph of the rule authorizing the listing of the claimed acts or omissions. This is apparently the favored form of submission in Wisconsin, where a similar method of submission is permitted. Heft & Heft, Comparative Negligence Manual, Section 8.20, 1971; Pope, 37 Tex. Bar Journal 335. While this method may constitute the preferable method of submission in many instances we believe the rule leaves this determination to the discretion of the trial court.

Members Mutual further argues that notwithstanding the revision of Rule 277, the issues must be limited by the form of submission to those specific acts of negligence which are specially alleged in the pleadings. It argues that since the Muck-elroys pleaded specific acts of negligence (failure to keep proper lookout and to make timely application of brakes) the trial court was limited under Rule 279 to a-form of submission which restricted the jury’s consideration to those specific elements. It also argues that Special Issue No. 1 permitted the jury to consider evidence of other possible negligent acts not raised by the pleadings, as for example, testimony from which the jury might have inferred that Verdie Webber had been drinking prior to the accident and that she had failed to give a turn signal indicating her intended left turn.

We cannot agree with these arguments. The purpose of the pleadings is to apprise the opposing parties of the nature of the issues which they will be expected to meet. By appropriate special exceptions, the plaintiff may be required to specify the particular acts or omissions of negligence upon which he relies. If during the trial evidence is offered regarding any claimed acts or omissions not raised by the pleadings, the receipt of such evidence may be properly controlled by ruling of the court. Under the revised rule, where the broad form of submission is adopted, the extent of the jury’s consideration of the elements comprising the controlling issue becomes a matter of evidence and argument, subject to appropriate instruction of the court. In our opinion the trial court is not precluded from submitting issues broadly under Rule 277 even though specific acts or omissions comprising the elements of such issue have been specifically plead. Mobil Chemical Company v. Bell, supra. We overrule Members Mutual’s points one through three.

Members Mutual’s points of error 4 and 5 complain that the trial court erred in failing to submit its requested instructions (pertaining to Special Issue No. 1) as follows :

REQUESTED INSTRUCTION NO. I
“You are instructed that Verdie Web-ber is negligent if you find from a preponderance of the evidence that on the occasion in question she failed to make such application of the brakes as a person using ordinary care would have made.”
REQUESTED INSTRUCTION NO. 2.
“You are instructed that Verdie Web-ber is negligent if you find from a preponderance of the evidence that she failed to keep such a lookout as a person using ordinary care would have kept.”

The instructions requested by Members Mutual in connection with Special Issue No. 1 did not clarify or define words or phrases used in the court’s charge which required legal definition but merely restated and applied to specifically pleaded sub-issues, the definition of negligence previously given in the court’s charge.

The trial court has considerable discretion in determining which issues are “proper” in submission of its charge. Mobil Chemical Company v. Bell, supra. We cannot say that it abused this discretion in refusing to give these requested instructions and if error was committed, we are of the opinion that it did not amount to a denial of the rights of Members Mutual as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure. We overrule Members Mutual’s points of error numbers 4 and 5.

In its sixth and seventh points of error, Members Mutual complains that the trial court erred in submitting Special Issue No. 2 over its objection that the court had failed to define the words “immediate hazard” contained in the related instruction and in failing to submit its requested instruction as follows:

“An approaching vehicle is an immediate hazard if it is so close that a person using ordinary care would reasonably conclude that he could not complete the turn without danger of collision.”

Since the trial court’s judgment may be affirmed solely on the basis of Special Issue No. 1, we deem it unnecessary to consider Members Mutual’s remaining two points (6 and 7) complaining of error in the manner of submission of Special Issue No. 2.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

On motion for rehearing we have concluded that our opinion requires some clarification. In our opinion, an instruction limiting the jury’s consideration to only those acts of negligence pleaded might properly be given by the trial court in an appropriate situation. We hold only that the trial court, in the case before us, did not abuse its discretion in refusing to give the instructions in the form requested.

Motion for rehearing overruled.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    ENNIS BUSINESS FORMS, INC., Appellant, v. Sam TODD, Appellee.
    No. 5427.
    Court of Civil Appeals of Texas, Waco.
    May 1, 1975.

      Jackson, Walker, Winstead, Cantwell & Miller, Ralph E. Hartman and Jack Pew, Jr., Dallas, for appellant.
    Frank R. Jewell, Dallas, for appellee.
   HALL, Justice.

The plaintiff, Sam Todd, pleaded that in 1969 he was an employee of the defendant, Ennis Business Forms, Inc.; that he determined to retire effective December 31, 1969; that, to induce him to not retire, the president of defendant company, Leonard Gehrig, acting on behalf of the company, orally contracted with the plaintiff that for every month he worked for the defendant after September 1, 1969, the defendant would pay him the sum of $200 per month, payable after the termination of his employment with defendant; that, relying upon this contract, the plaintiff continued working for the defendant for a term oi 28 months after September 1, 1969, until December 31, 1971; and that the defendant has refused to honor the agreement to pay the plaintiff’s “deferred salary of $200.00 per month.” The plaintiff prayed for a recovery of $5,600 because of this asserted default by the defendant, plus reasonable attorney’s fees. The defendant answered with a general denial, and a special plea that its president was without the power to make the contract sued upon because it was “of an unusual and extraordinary nature” and was not authorized by the defendant’s corporate by-laws or board of directors.

Trial was to a jury which found that “Leonard Gehrig, as President of Ennis Business Forms, Inc., in September, 1969, entered into an agreement with Sam Todd to provide for a deferred monthly salary increase of $200.00 a month”; and that a reasonable attorney’s fee for prosecuting the plaintiff’s claim is $1,500. The parties stipulated that the plaintiff continued in the defendant’s employment after September 1, 1969, for a term of 28 months. Upon the verdict and the stipulation, judgment was rendered that the plaintiff recover the sum of $7,100.

In Texas, by statute, the board of directors of a corporation, not its president, is charged with the duty of managing the company business and affairs. Accordingly, it is the settled rule in this state that the president of a corporation is not invested with actual or apparent authority to bind his company by contract merely because of his position. Generally speaking, to so bind the company the president must be authorized “by the statutes of this state, the terms of the by-laws, or by appropriate action taken by the directors, trustees, or other governing body” to make the contract. Manufacturers’ Equipment Co. v.

Cisco Clay & Coal Co. (Tex.Com.App., adopted, 1929), 118 Tex. 370, 15 S.W.2d 609, 613. It was the plaintiff’s burden, therefore, to establish that the contract upon which he sues was within the scope of Gehrig’s authority as the defendant’s president. 14 Tex.Jur.2d 458-459, Corporations, Sec. 354.

The contract in question was not expressly authorized by the defendant’s board of directors, and the plaintiff does not contend that it was. However, the defendant’s by-laws provide, in part, that its president “shall be the chief administrative officer of the corporation” and that he “shall have the power and authority to execute bonds, mortgages, and other contracts of the corporation in the ordinary course of the business of the company.” It is our view that Gehrig was clothed by the by-laws with authority to grant the plaintiff the raise in question. Moreover, there is an abundance of evidence which shows that a part of Gehrig’s duties involved the hiring of non-officer employees of the company, setting their salaries, and granting them pay raises. There is proof that the plaintiff was not an officer of the corporation at the time in question.

In its brief, the defendant tacitly admits that Gehrig was authorized by the by-laws to grant the plaintiff the pay raise, but it argues under its first point of error that the contract in question is not one “in the ordinary course of the business of the company,” permitted by the by-laws, and is in fact unusual and extraordinary, and therefore was outside Gehrig’s authority, because of the deferred payment provision in it; and it asserts that there is no evidence to support the finding to the contrary implied in the judgment. A proper testing of this complaint requires that the evidence in the case, and every reasonable deduction that may be based thereon, be viewed and considered by us in a light most favorable to the questioned finding. Douglass v. Panama, Inc. (Tex.Sup.1974), 504 S.W.2d 776, 777.

The fact that the president of a corporation might be generally empowered to hire and fire employees, and set their salaries, would not authorize him to make a contract of an unusual and extraordinary nature, not directly authorized by the directors, for an employee’s services. Leak v. Halaby Galleries, Inc. (Tex.Civ.App.—Dallas, 1932, writ ref.), 49 S.W.2d 858, 860; Nelms v. A & A Liquor Stores, Inc. (Tex.Civ.App.—Eastland, 1969, writ ref., n. r. e.), 445 S.W.2d 256, 259. However, such contract is not extraordinary or unusual if the circumstances surrounding its making “would have justified an ordinary competent person, familiar with the situation and with the ordinary methods of business, considering the matter in the light of every day experience, to say without serious hesitation that the making of [the] contract formed a natural and ordinary part” of the company’s business at the time in question. Babicora Development Co., Inc., v. Edelman (Tex.Civ.App.—El Paso, 1932, writ dism.), 54 S.W.2d 552, 555.

At all pertinent times, Gehrig was the defendant’s president. He is now retired. As a part of his duties, Gehrig was authorized to, and did, set the salaries of non-officer employees of the company denominated in the testimony as “management employees”, meaning non-officer employees who were “concerned with the supervison and handling of the financial aspects of the company as opposed to the production aspects.” There were six or eight employees who filled this classification. The plaintiff was one of them. They were located closely together physically upon the defendant’s premises, and near Gehrig’s office. They worked closely with each other and with Gehrig in making decisions which affected the welfare of the company. They saw each other daily, unless one was absent from the premises for some reason. It was not their custom to operate on a formal basis, and there were many discussions and decisions on a day-by-day basis among them involving company management that were not formally reduced to writing. These included matters pertaining to salary, many of which, including the salary increase in question, were communicated orally to the assistant treasurer in charge of payrolls.

The plaintiff is an accountant. He left self-employment in 1965 to go to work for the defendant. It was Gehrig who hired him on behalf of the company and set his beginning salary, and who later set his annual raises. At the time the plaintiff was hired, the defendant had a pension plan for its employees which was 100% company-funded, but the plaintiff was too old to participate in it. By the summer of 1969, the plaintiff was 69 years of age. His salary with the defendant was $10,000 per year. He was then eligible to receive $3,600 annual federal social security benefits if he should retire; and he had given some thought to the idea. Around September 1st of that year, a young accountant was hired into the company in a minor capacity, but at a salary of about $4,000 per year more than the plaintiff was making. This was very upsetting to the plaintiff. He told Gehrig that because of it he was quitting. Gehrig testified that he was convinced the plaintiff intended to leave the company “if nothing happened in his favor,” and that the company “could ill afford to lose him,” for reasons assigned in his testimony. He concluded the plaintiff’s salary should be raised about $2,000 per year, and so instructed the treasurer of the company. And although he doesn’t specifically remember telling the plaintiff that the' salary increase would be paid to plaintiff “as a retirement monthly salary,” he testified, “I could have said that. It didn’t make any difference. I mean, he could of had his option to do it, we will say. I mean, that wasn't a case in point. That wasn’t material in other words. There could have been some conversation about [this].” Officers of the company have been awarded compensation payable after retirement on a number of occasions. Because these involved officers, they were handled by the board of directors. Gehrig testified that when the plaintiff stated he was quitting, “I didn’t get really upset. We had folks there that would come in to me and say ‘I’m going to quit,’ and T don’t like so and so and unless something’ — they give me ultimatums all the time, and I didn’t get too upset about it, because we just needed to compromise something or other and that was all. I was kind of referee there a little bit.” He said, “It was rather difficult for us to get people to come to Ennis to live, and we tried to find what folks wanted and to do our best to provide it for them, to get them. Sometimes it was deferred compensation, sometimes it was adding to their years of service credit for the pension plan, and we worked various arrangements with different people according to their needs.” He said that it was “basically” this company policy which led to the contract in question with the plaintiff.

The evidence we have recited shows that the contract in question was made within an established, functioning policy of the defendant company for the company’s benefit. It is legally sufficient to support the questioned finding.

The cases cited and relied upon by the defendant for a different holding are distinguishable on their facts and are not controlling. In Sacks v. Helene Curtis, 340 Ill.App. 76, 91 N.E.2d 127 (1950), a contract made without the knowledge of the company’s board of directors, which guaranteed a company salesman a percentage of gross sales as opposed to net profits, was required to have approval of the company directors because it could conceivably bankrupt the corporation. In Leak v. Halaby Galleries (Tex.Civ.App.—Dallas, 1932, writ ref.), 49 S.W.2d 858; Babicora Development Co. v. Edleman (Tex.Civ.App.—El Paso, 1932, writ dism.), 54 S.W.2d 552; Brown v. Grayson Enterprises, Inc. (Tex.Civ.App.—Dallas, 1966, writ ref., n. r. e.), 401 S.W.2d 653, and Nelms v. A & A Liquor Stores, Inc. (Tex.Civ.App.—East-land, 1969, writ ref., n. r. e.), 445 S.W.2d 256; the courts refused to approve contracts not authorized by company directors which purported to employ key personnel of the company-employers for terms of four years and life. In our case, the plaintiff’s employment, upon which the amount of deferred compensation would be computed, was terminable at the will of the defendant.

The defendant’s first point of error is overruled.

The award of attorney’s fees to the plaintiff is based upon the part of Article 2226, Vernon’s Ann.Tex.Civ.St., which permits an allowance of attorney’s fees to one who obtains a judgment upon a claim for services rendered. In its second and final complaint the defendant assigns error to the award contending that the provision in the plaintiff’s contract for deferred payment makes the agreement a “special contract” which is outside the scope of Article 2226. The defendant argues, also, that this suit is not to recover for services rendered, but is based upon an asserted breach of an express contract.

The plaintiff directly pleaded that his claim against the defendant is for personal services rendered. The proof supports this pleading. The fact that an action to recover for services rendered is based upon an express contract of employment between the parties will not prevent the recovery of attorney’s fees. Huff v. Fidelity Union Life Ins. Company, 158 Tex. 433, 312 S.W.2d 493, 498 (1958); Wisznia v. Wilcox (Tex.Civ.App.—Corpus Christi, 1969, writ ref., n. r. e.), 438 S.W.2d 874, 878.

A contract containing provisions and stipulations not found in the ordinary contract relating to the same subject matter, which, if omitted from the ordinary contract would not be supplied as a matter of law, is a “special contract.” 17 C.J.S. 584, Contracts § 10; Pines California, Inc., v. Miller (Tex.Civ.App.—Eastland, 1969, no writ hist.), 446 S.W.2d 91, 95; Eisenbeck v. Buttgen (Tex.Civ.App.—Dallas, 1970, no writ hist.), 450 S.W.2d 696, 702; Success Motivation Institute, Inc. v. Jamieson Film Co. (Tex.Civ.App.—Waco, 1971, no writ hist), 473 S.W.2d 275, 281. Article 2226 has no application to a suit founded upon special contract. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78 (1958) ; Eisenbeck v. Buttgen, supra.

The record shows that our parties agreed upon the deferred payment of the plaintiff’s salary increase for the mutual convenience of both parties. However, this is not a provision which, if omitted, the law would not have supplied. If the parties had not agreed upon a time certain for the payment of the plaintiff’s wages, then the law would have required payment to be made within a reasonable time. Wisznia v. Wilcox, supra, 438 S.W.2d 874, 876.

The defendant’s points and contentions are overruled. The judgment is affirmed.


author: CORNELIUS, Justice.

text:
    Davye CARTER, Appellant, v. W. J. DeJARNATT, Appellee.
    No. 8284.
    Court of Civil Appeals of Texas, Texarkana.
    May 6, 1975.

      James B. Martin, Andress, Woodgate & Lodewick, Dallas, for appellant.
    Wells & Wells, Paris, for appellee.
   CORNELIUS, Justice.

Appellant Davye Carter filed this action against appellee W. J. Dejarnatt to recover on a promissory note. A trial to the court resulted in a judgment denying recovery.

The note sued upon was executed by W. J. Dejarnatt to evidence a loan of $1,400-00 which was made to him by David Hae-fele. The parties used a printed form of promissory note which named the First National Bank of Paris, Texas as payee, and they neglected to change the designation of the payee to David Haefele at-the time the loan was consummated. The bank thereafter, without consideration, endorsed the note to Dixie Harlan without recourse. Dixie Harlan thereafter, without consideration, endorsed the note to Davye Carter without recourse. Dixie Harlan was David Haefele’s former wife. Davye Carter is David Haefele’s daughter. Haefele was not a party to the suit.

Appellant’s original petition alleged that she was the owner of the note by endorsement from the bank and Dixie Harlan. Her petition was later amended to allege that David Haefele was the real owner of the note and that appellant held the legal title thereto as constructive trustee for Hae-fele. She also alleged that she was the trustee of all of David Haefele’s property under the terms of an express trust which had been created on May 12, 1970. It was undisputed that the note had not been paid.

In the trial court appellee contended that David Haefele was a necessary party; that appellant was required, but failed, to bring the suit in a representative capacity; and that as the four year limitation period on the note had expired before the filing of appellant’s amended petition which alleged the trust relationship, the suit was barred by the four year statute of limitations. The trial court sustained these contentions and entered judgment that appellant take nothing on her cause of action. The judgment will be reversed.

David Haefele was not a necessary party to this action. The note was made payable to the First National Bank of Paris, Texas, or its order. When the named payee endorsed the note to Dixie Harlan and she in turn endorsed it to Dav-ye Carter, Davye Carter became a “holder” of the note, whether or not the endorsements were supported by consideration. Tex.Bus. & Comm.Code Ann.Sec. 1.201, Sec. 3.201 and Comment 2 to Sec. 3.201, V.T.C.A.; Hughes v. Dopson, 135 S.W.2d 148 (Tex.Civ.App. Amarillo 1939, no writ). The payee or holder of a promissory note may maintain suit in his own name to enforce payment of the note even though he is not the real or beneficial owner. Tex. Bus. & Comm.Code Ann.Sec. 3.301 and Sec. 3.603. That was the settled law of Texas long before the adoption of the Uniform Commercial Code. Thompson v. Cartwright, 1 Tex. 87; Russell v. People’s Nat. Bank of Belton, 2 S.W.2d 961 (Tex.Civ.App. Austin 1928, writ ref’d); Houston Finance Corporation v. Stewart, 7 S. W.2d 644 (Tex.Civ.App. Austin 1928, writ ref’d) ; City of San Antonio v. Reed, 192 S.W. 549 (Tex.Civ.App. San Antonio 1917, writ ref’d). The same rule applies when the payee or holder holds the note as fiduciary for the real owner. See Tex.Bus. & Comm.Code Ann.Sec. 3.603 and Sec. 3.-. 304; Anderson v. Hirsch, 112 S.W.2d 535 (Tex.Civ.App. Amarillo 1937, writ ref’d). Under general trust law a trustee may maintain a suit in his own name to recover the trust property or to enforce the obligations of third parties to the trust. Unless the duties and obligations of the trustee are in question or there is a conflict between the trustee and the beneficiary, the beneficiary is not a necessary party. Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945). Nor was appellant required to bring her suit in a representative capacity. The cases cited by appellee to support his contention in this respect are not applicable because they are cases where the plaintiff did not have legal title. See American Ins. Union v. Allen, 192 S.W. 1087 (Tex.Civ.App.Texarkana 1917, no writ) and Vivier v. Barreda, 110 S.W.2d 1233 (Tex.Civ.App. San Antonio 1937, writ dism’d). In addition, the express trust pleaded by appellant in her first amended petition specified that the trustee would have all of the rights and powers set forth for trustees in the Texas Trust Act, which act expressly provides that the trustee shall have the power to “ . . . compromise, contest, arbitrate or settle any and all claims of . . . ” the trust estate. Article 7425b-25 Vernon’s Tex.Rev.Civ.Stat.Ann. The trust indenture conveyed to the trustee the legal title to all of David Haefele’s property of every kind and description. A promissory note constitutes “personal property” in the sense that it may be owned as a trust asset. Hall v. Miller, 102 Tex. 289, 115 S.W. 1168 (1909); State v. Lowman, 115 S.W.2d 794 (Tex.Civ.App. Eastland 1938), rev’d on other grounds, 134 Tex. 475, 133 S.W.2d 962 (1939).

Appellant’s suit was not barred by limitations. Her original petition was filed on January 25, 1972, which was prior to the expiration of the four year limitation period. The amended petition, which was filed after the expiration of the limitation period, did not change the cause of action. The only change was that it alleged that David Haefele was the beneficial owner of the note and that appellant was his trustee. The same transaction — the execution of the note by Dejarnatt for $1,400.00 payable to the First National Bank of Paris — was the basis of the cause of action in both pleadings. At the most the amended petition merely changed the capacity in which appellant sued. That did not constitute, a new cause of action which was barred by limitations. See Trammell v. San Antonio Life Ins. Co., 209 S.W. 786 (Tex.Civ.App. San Antonio 1919, writ ref’d); McCreight v. Sumner, 208 S.W. 545 (Tex.Civ.App. Dallas 1919, no writ) ; 37 Tex.Jur.2d Limitation of Actions, Sec. 120, page 280.

As appellant produced the note and established its genuineness as well as her position as holder, she was entitled to judgment on the note unless appellee established a defense. Section 3.307, Tex.Bus. & Comm.Code Ann. He failed to do so. The judgment of the trial court will therefore be reversed and judgment rendered for appellant. Tex.R.Civ.P. 434. Since appellant pleaded in her amended petition that she held the note for the benefit of David Haefele, the judgment for the amount of the note, plus interest and attorney’s fees as provided therein, will be rendered for appellant as trustee for the use and benefit of David Haefele. See Rabb v. Seidel, 218 S.W. 607 (Tex.Civ.App. San Antonio 1920), rev’d on other grounds.

It is so ordered.


author: PEDEN, Justice.

text:
    FIRST SOUTHERN PROPERTIES, INC., Appellant, v. Vince VALLONE, Receiver, Appellee.
    No. 16374.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 3, 1975.
    Tita, Lackshin & Nathan, Herbert N. Lackshin, B. K. Watson, III, Houston, for appellant.
    Strickland & Gordon, Gerald S. Gordon, Houston, for appellee.
   PEDEN, Justice.

Appeal from a judgment in favor of a receiver on his application to set aside a trustee’s deed.

The trial court had, on April 11, 1973, appointed a receiver to manage and sell the community assets and property of Mr. and Mrs. Darnell while their divorce case was pending. The receiver filed his oath on May 17, 1973. No bond was required of him. The Darnells had bought the real property made the subject of this suit from the Oxfords, who held the Darnells’ deed of trust as security for their promissory note for the purchase price. All monthly payments on the $21,000.00 note had been made through April 1, 1973, when the balance was $7,074.43. On May 1, 1973, the monthly payment then due was not paid. Within 11 days after this default in payment one asserting he was a substitute trustee posted notices of sale; on June 5, 1973 he conducted a substitute trustee’s sale and appellant purchased the property for $22,000.00. The. receiver brought this suit to have the trustee’s deed set aside, and after a non-jury trial the court found for the receiver and ordered return of $22,000.00 paid for the property by the appellant.

Appellant’s first two points of error complain that the trial court erred in entering judgment for the appellee, because appellant was a bona fide purchaser for value without notice and was entitled to prevail on the principle of estoppel.

The parties stipulated that the date when the plaintiff-receiver filed a lis pendens was June 14,1973.

The appellee’s first counterpoint is that the trial court did not err in holding that real property held in custodia legis by a court-appointed receiver cannot be sold by a lienholder under a power of sale, that such a sale is a nullity and a trustee’s deed is void.

The trial court’s first five conclusions of law were:

1. “THAT by the appointment of a Receiver therefor, the subject property was in custodia legis at the time of the Substitute Trustee’s Sale on June 5, 1973.
2. “THAT property in possession of a receiver may not be sold by a trustee to satisfy a mortgage or trust deed unless the sale is authorized by the court in which the receivership is pending.
3. “THAT the purported sale of property in receivership under a power contained in a deed of trust is void.
4. “THAT the purported sale under a power contained in the deed of trust passed no title.
5. “THAT the Substitute Trustee’s deed is void.”

The appellant argues that since the receiver did not file a lis pendens notice as provided by Article 6640, Vernon’s Ann. Texas Civil Statutes, the appellant had no notice that the property in question was involved in a divorce proceeding and was an innocent purchaser for value.

We overrule the appellant’s first two points. This could held in Cline v. Cline, 323 S.W.2d 276 (Tex.Civ.App.1959, writ ref, n. r. e.), that when in a divorce decree, a commissioner was appointed by the court to take possession of property in which there was a community interest and to divide it or sell it if no voluntary partition was made, the property was placed in cus-todia legis, even though the commissioner had not yet made bond or otherwise qualified as commissioner and had taken no possession of the property.

In Texas Trunk R. Co. v. Lewis, 81 Tex. 1, 16 S.W. 647 at 649, our Supreme Court stated:

“In the case before us it appears not only that the suit in Kaufman county was instituted before the attachment sued out by Thompson was levied, but that the court had appointed a receiver before that was done, who, however, did not qualify until after the levy was made. We understand the courts to hold, almost without dissent, that, after the appointment of a receiver, the property to which the receivership relates is to be deemed in the custody of the law, and this seems to us the correct rule.”

It is stated at 49 Tex.Jur.2d 155, Receivers § 123 as follows:

“Property in the possession of the receiver may not be sold by a trustee to satisfy a mortgage or trust deed unless the sale is authorized by the court in which the receivership is pending. A purported sale under a power contained in the instrument is therefore void and passes no title.”

We hold that the trial court was correct in holding that the sale under the deed of trust was void because under the terms of the court’s order the property in question was in custodia legis. The appel-lee was not estopped by his failure to timely file lis pendens.

We do not reach the appellant’s third, fourth and seventh points of error because they attack another and independent basis for the appellee’s recovery, alleged irregularities in the substitute trustee’s sale.

Nor would it change the result if we sustained appellant’s fifth and sixth points of error.

Affirmed.


author: COLEMAN, Justice.

text:
    Harry M. FLAVIN, Temporary Administrator of the Estate of John H. Flavin, Deceased, Appellant, v. Flora Moon FLAVIN, Appellee.
    No. 16462.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 17, 1975.
    Rehearing Denied May 15, 1975.
    Robert A. Jircik, Houston, for appellant.
    Houchins & Tasker, Kenyon Houchins, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a probate court order granting the applicant, Flora Moon Flavin, a widow’s allowance of $3,000.00 in lieu of homestead. The only issue on appeal is whether or not appellee contracted a valid common law marriage with John H. Flavin, Deceased.

The case was submitted to a jury who found that (1) the deceased, John H. Flav-in, and appellee mutually agreed and consented on or about December 6, 1971 to become husband and wife; (2) that they cohabited as man and wife; (3) and that they represented to others that they were married. These findings are attacked on both legal and factual insufficiency grounds.

The elements of a common law marriage are: present agreement to be husband and wife; living together as husband and wife; and a holding out to the public of being married. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963).

The no evidence, or legal sufficiency points require the court to examine the record to see if there is any probative evidence, or reasonable inferences that may be drawn therefrom, in support of the jury’s answers. Garza v. Alviar, 395 S. W.2d 821 (Tex.1965). There is evidence that Mr. Flavin and Mrs. Moon had been intimate over a long period of years. About eight months before he died Mr. Flavin moved from a duplex which he rented to the home of Flora Moon. Shortly after moving in he inquired of an attorney about the requirements of a common law marriage. Appellee testified that on the date Mr. Flavin moved to her house, they agreed to be husband and wife. Mr. Flavin executed a will and a power of attorney naming Flora Moon Flavin as his wife.

About three months after moving into Mrs. Moon’s house Mr. Flavin subsequently left the house and moved into the house of Ruby Lee Skinner. He then cancelled the power of attorney and wrote a new will disinheriting appellee and leaving his estate to Mrs. Skinner. Mrs. Skinner later moved him to a rest home. A nephew subsequently visited him there and at his request moved him again to another rest home. Mr. Flavin then executed his final will leaving his estate to his three nephews, and this will was admitted to probate.

There is evidence that appellee stated before witnesses that she was not married to Mr. Flavin. Appellee testified that she did not remember making the statement. She stated that she did not tell her employer, her landlord, her insurance agent, the federal tax officials or the voter registration officials of any change in her name by reason of marriage. During the three months that she lived with Mr. Flavin ap-pellee signed an affidavit as owner of a car with her previous name.

In addition to the evidence previously mentioned, there is testimony by appellee’s attorney, who drew the will in which Mr. Flavin named appellee as his wife, and his daughter who was a witness on the will, that Mr. Flavin introduced Mrs. Moon as his wife at the time the will was executed. There is testimony that appellee presented the power of attorney to a bank official and was allowed to withdraw funds from the account of the deceased. Appellee testified that while she did not go around telling people that she was married, there was a number of people who were aware of that fact including her son, her attorney, her sister, three people who worked with her, and Arthur Flavin, one of the nephews of the deceased. The fact that the ap-pellee did not change the manner in which she was listed with her employer, her landlord, her insurance agent, the federal tax officials, or the voter registration officials, while evidence on the issue of holding out, is weakened by the fact that they lived together for a period of only three months. The testimony of appellee is strongly supported by the acknowledgment of marriage by Mr. Flavin 'in his will and in the power of attorney, which was recorded, both instruments having been executed in front of witnesses and in the presence of appellee.

It is unquestioned that they lived together under the same roof, which fact was known to some of their relatives and friends. There was no testimony that the marriage was kept secret. The facts are significantly different in this case from those found in Ex Parte Threet, 160 Tex. 482, 333 S.W.2d 361 (1960).

We cannot say that the answers made by the jury to the issues submitted to them are so against the great weight and preponderance of the evidence as to be manifestly unjust.

Special Issue No. 3 reads:

“Do you find from a preponderance of the evidence that after such agreement, between the parties, if you have so found, John H. Flavin, Deceased, and the applicant represented to others that they were married ?”

In connection with this issue appellant requested the following instruction:

“You are further instructed that isolated references to a person being his or her husband or wife do not in and of themselves constitute evidence of the common law marriage and the same maybe rebutted by a preponderance of the evidence.”

This instruction was refused by the court. In so doing the court did not err. In Ex Parte Threet, supra, the court stated:

“It was held in Drummond v. Benson, Tex.Civ.App. 1939, 133 S.W.2d 154, writ refused, that isolated references to a person as being his or her husband or wife constituted no evidence of a common law marriage. Similarly, the introduction of defendant as her husband to two close friends, and telling two or three others that she was married to defendant, constituted no evidence that plaintiff and Threet were living together as husband and wife and holding themselves out to the public as man and wife. Under the Texas decisions there can be no secret common law marriage as such. The secrecy is inconsistent and irreconcilable with the requirement of a public holding out that the couple are living together as husband and wife.”

In neither of these cases did the parties live together in the same house, under the same name, nor was there direct evidence of a contract to be married. In this case there is no evidence that the fact of marriage was deliberately concealed from anyone. We do not understand these decisions to turn on the number of people who are informed of the fact of marriage. The rule announced is for the guidance of the trial court in determining the propriety of an instructed verdict, and for the guidance of the appellate court in passing on the sufficiency of the evidence. The jury was not asked to find whether or not there was a common law marriage in Special Issue No. 3 and the special requested instruction would not have been helpful in enabling the jury to answer the issue submitted.

The judgment is affirmed.


author: SOMERVILLE, Presiding Judge.

text:
    COMMERCE TRUST COMPANY and Roy P. Swanson, Co-Trustees, Respondents, v. Robert W. DUDEN et al., Respondents, Dennis Vandever Hughes, Appellant, Unborn and unknown children of Robert W. Duden and Daniel F. Duden, Repondents.
    No. KCD 26714.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Donald G. Stubbs, Steven J. Borel, Stubbs, Epstein & Mann, Kansas City, for appellant Dennis Vandever Hughes.
    Norman M. Arnell, Kansas City, for respondents Robert W. Duden, Beverly Duden Stacey, Michael R. Duden and Dana R. Duden; Margolin & Kirwan, Kansas City, of counsel.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   SOMERVILLE, Presiding Judge.

The co-trustees of an inter vivos trust, insofar as pertinent to this appeal, brought a declaratory judgment action seeking judicial determination of the intent of the settlor with respect to certain language employed in the trust agreement. The case is one of first impression in this state since the junctional issue is whether a child of one of settlor’s sons who was lawfully adopted by another person was intended by the settlor to be included in a class described as “natural and adopted children”.

The trust instrument in question was executed on April 29, 1963, by Nancy Mae Duden as settlor and Commerce Trust Company and Roy P. Swanson as co-trustees. Under the terms of the trust instrument the co-trustees were to pay the income of the trust estate to the settlor during her life and, upon her death, the balance of the trust estate (after payment of estate and inheritance taxes and certain minimal cash gifts) was to be divided into two separate and equal trusts designated Trust A and Trust B.

The principal beneficiary of Trust A was settlor’s son Robert W. Duden. The principal beneficiary of Trust B was settlor’s son Daniel F. Duden. The provisions of both trusts were the same except as they respectively applied to Robert W. Duden and Daniel F. Duden.

Paragraph 2 of the “THIRD” article of the trust instrument, which relates to Trust B, contains the language which is the subject matter of this litigation on appeal. The salient part reads as follows:

“2. TRUST B. The Trustees shall pay to Settlor’s son, DANIEL D. DU-DEN, if he survives Settlor, three-fourths (}iths) of the net income from Trust B, in monthly installments, until said Daniel D. Duden shall attain his fiftieth (50th) birthday, at which time the Trustees shall pay to said Daniel D. Duden three-fourths (%ths) of the principal and accrued net income of Trust B. If the said Daniel D. Duden survives the Settlor but does not survive to attain his fiftieth (50th) birthday or if the said Daniel D. Duden does not survive the Settlor, then upon the death of said Daniel D. Duden or upon Settlor’s death, whichever is later, three-fourths (fáths) of the principal and accrued net income of Trust B shall be held, handled, used, divided and distributed as provided below for the benefit of the children, both natural and adopted, of said Daniel D. Duden.
The Trustees shall pay to or for the benefit of the natural and adopted children of said Daniel D. Duden, quarter-annually, one-fourth (¼⅛) of the net income from Trust B, in equal portions, share and share alike. If the said Daniel D. Duden does not survive the Settlor or survives the Settlor but does not survive to attain his fiftieth (50th) birthday, then in either of those events the Trustees shall pay to or for the benefit of said children of Daniel D. Duden all of the net income from Trust B, in equal portions, share and share alike until the youngest said child of Daniel D. Duden shall attain his twenty-first (21st) birthday. Upon the youngest said child of said Daniel D. Duden attaining his twenty-first (21st) birthday the principal and accrued net income then remaining shall then be paid to said children surviving to the time when the youngest of them shall attain his twenty-first (21st) birthday, in equal portions, share and share alike.
If neither the said Daniel D. Duden nor any of his children survive to the time or times for distribution provided herein, then in that event the principal and accrued net income of Trust B shall be paid into and become a part of Trust A, hereinabove provided.”

Robert W. Duden and Daniel F. Duden were the only children born of settlor’s marriage to Robert D. Duden. The settlor died on February 10, 1968, during which year Robert W. Duden became fifty-three years of age and Daniel F. Duden became fifty years of age. The trial court found and held that the class designated in Trust B closed in 1968 and the correctness of such is not questioned on appeal.

There is no dispute that on every possible pertinent date settlor’s son Robert W. Du-den had three living children, namely, Beverly Duden Stacey, Michael R. Duden and Dana R. Duden (all of whom had attained the age of twenty-one prior to trial of this case). No other children were born to or adopted by Robert W. Duden.

Daniel F. Duden (settlor’s other son) was at one time married to Betty Lou Du-den (maiden name undisclosed by the record). This marriage produced one child, a son, Daniel F. Duden, III, whose date of birth was November 15, 1941. Shortly after their son’s birth, Daniel F. Duden and Betty Lou Duden, who were living in Tulsa, Oklahoma at the time, separated. On May 2, 1942, the District Court of Tulsa County, Oklahoma, entered a decree of divorce in favor of Betty Lou Duden and awarded her sole and exclusive custody of Daniel F. Duden, III. Betty Lou Duden thereafter married Huber C. Hughes, Jr., and on February 21, 1944, they petitioned the appropriate court in Tulsa County, Oklahoma, for the adoption of Daniel F. Duden, III, and Daniel F. Duden therein entered his written consent to the adoption. The final decree of adoption was entered in Oklahoma on March 19, 1946, at which time Daniel F. Duden, III, was by the court “ordered, adjudged and decreed” to he the “lawfully adopted child” of Huber C. Hughes, Jr., and the child’s name was changed to Dennis Vandever Hughes. Therefore, prior and subsequent to all of the following dates, April 29, 1963, the date the trust instrument was executed, February 10, 1968, the date of settlor’s death, and during 1968, the date the class closed, the son born of Daniel F. Duden’s marriage to Betty Lou Duden was at all times the lawfully adopted son of Huber C. Hughes, Jr. No person other than Dennis Vandever Hughes, with reference to any of the mentioned dates, claimed to fall within the class designated “children natural or adopted” of Daniel F. Duden in paragraph 2 of the “THIRD” article of the trust instrument.

The trial court, apposite to the issues on appeal, found that Dennis Vandever Hughes, who had been adopted out of Daniel F. Duden’s blood stream, was not intended by settlor to be included in the class described as “children natural or adopted” of Daniel F. Duden, and ordered the co-trustees to pay the remaining one-fourth balance of the principal of Trust B as follows: three-fourths to Robert W. Duden, one-twelfth to Beverly Duden Stacey, one-twelfth to Michael R. Duden, and one-twelfth to Dana R. Duden.

Dennis Vandever Hughes, alone, appealed from the judgment entered by the trial court. Of the respondents, only Robert W. Duden, Beverly Duden Stacey, Michael R. Duden and Dana R. Duden filed a brief on appeal. All the remaining respondents have taken a passive attitude regarding the appeal.

Dennis Vandever Hughes maintains that “he has always been and always will be the natural child of his father, Daniel F. Du-den” and his adoption by Huber C. Hughes, Jr., “is of absolutely no significance whatsoever in this case”. The non-passive respondents on appeal maintain that the language employed by the settlor in the controversial article of the trust instrument, coupled with certain extrinsic evidence, discloses that the settlor did not intend to include Dennis Vandever Hughes in the class designated therein. By way of anticipatory rebuttal, Dennis Vandever Hughes also maintains in his brief, as a separate point, that extrinsic evidence was not admissible to aid in ascertaining the settlor’s intent since the language used was unambiguous. The overall thrust of Dennis Vandever Hughes’ position on appeal being that biologically he was the natural child of Daniel F. Duden, and, therefore, was intended by settlor to be included in, and did in fact fall within, the class set forth in the trust instrument.

The controversial language does not lend itself to being characterized as ambiguous, in either a patent or latent sense, in view of the words employed by settlor and the time and context in which she is presumed to have used them (infra). The paramount rule, that absent ambiguity the intent of the maker of a legal instrument is to be ascertained from the four corners of the instrument without resort to extrinsic evidence, is here deemed applicable. First National Bank of Kansas City v. Hyde, 363 S.W.2d 647, 653 (Mo.1962); and Crist v. Nesbit, 352 S.W.2d 53, 56 (Mo.App.1961). In many instances extrinsic evidence as to intent is the “handmaiden” of confusion. Therefore extrinsic evidence, although introduced at the trial level, will not be considered, and the subject of this court’s de-cisional focus will be the trust instrument itself.

Inclusion of the word “adopted” in the language under consideration evinces an awareness by settlor of the laws of this state concerning the adoption of children. The courts of this state have frequently held that the maker of a legal instrument is presumed to know the law and, accordingly, presumed to employ language in the context of such law. Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440, 441 (Banc 1924); Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, 139 (Banc 1932); St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685, 688 (Banc 1934); and Thomas v. Higginbotham, 318 S.W.2d 234, 237 (Mo.1958).

The statutory law of this state concerning adoption, and certain “landmark” cases hereinafter referred to construing its import, were constant when the settlor executed the trust instrument and, as well, on the date the class closed. Time of intent, therefore, sometimes encountered in earlier cases due to changes in the adoption law, presents no problem.

The legal metamorphosis undergone by the statutory law of this state pertaining to adoption, particularly in regard to the consequences of adoption, unfortunately produced an amorphous conglomerate of case law. However, this result appears to have been inevitable since the courts were obliged to apply the statutory law in the time framework of the instruments involved even though the statutory law, in many instances, had undergone profound changes both prior and subsequent to the time particular decisions were handed down. Be that as it may, starting in 1917 and culminating in 1947 (the latter being the date Section 453.090, RSMo 1969, V.A.M.S., captioned “Consequences of adoption”, was last amended) a clearly discernible statutory evolution occurred in this state appertaining to the consequence of adoption, and certain “landmark” cases during and subsequent to said dates were handed down reflecting an evolution of public policy concerning the consequences of adoption in view of the statutory changes. The statutory changes and “landmark” cases referred to firmed up the consequences of adoption and the underlying public policy presently embodied in this state’s adoption laws. In St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685, 689 (Banc 1934), the court, in holding that an adopted child fell within the class description of “heirs-at-law” as contained in a testamentary trust, held: “The Legislature had a right to and did in strong and emphatic language change the blood stream of an adopted child. Under our present statutes an adopted child’s relations with its natural parents cease; and by law it becomes the child of its adopting parents for every purpose as fully as though born to the adopting parents in lawful wedlock. In other words, the adopted child is taken out of the blood stream of its natural parents and placed, by the operation of law, in the blood stream of its adopting parents, if adopted under the provisions of our present statutes.”

Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645, 647 (Mo. banc 1953) is also deemed to be of “landmark” significance. The court in Wailes held that children who had been adopted out of a biological parent’s blood stream were not pretermitted heirs (Section 526, RSMo 1939) of their grandparents. Thus, Wailes completed the circle — the consequences of adoption as between adopted children and their biological blood stream. Wailes cited with approval the statement quoted above from St. Louis Union Trust Co., and additionally held, l.c. 647: “It seems to us that the legislature by the above section [present Section 453.090, RSMo 1969] has provided that when a person is legally adopted under the provisions of the adoption law, all ties of such adopted person with the natural parents and kin are completely severed. Note the statute reads, aU rights and duties between such child and his natural parents * * * shall cease and determine.’ The section further reads, ‘Said child shall thereafter be deemed and held to he for every purpose the child of his parent or parents by adoption, as fully as though born to him or them in lawful wedlock.’ (Emphasis ours.) Can or should a court say that the legislature did not mean to say all rights shall cease and determine ? We think not. We as a court have no right to read any exception into the law.”

Section 453.170, RSMo 1969, V.A.M.S., makes the prevailing adoption statutes of Missouri applicable to this case even though Dennis Vandever Hughes was adopted pursuant to the laws of Oklahoma.

On the premise that settlor was presumed to have known the existing statutory law relative to adoption and to have utilized language that comported with such law, this court concludes that it was set-tlor’s intent to use “natural and adopted children” of her son Daniel F. Duden in the context of children legally considered as being in the “blood stream” of her son Daniel F. Duden, videlicet, those biologically in his “blood stream” who had not been adopted out and biological strangers who had been adopted by him. Any other conclusion would do violence to the adoption laws of this state and the public policy embodied therein. The conclusion reached by this court that the settlor did not intend to include Dennis Vandever Hughes in the described class in no way impairs the fundamental right of a settlor of a trust, by a properly drafted instrument disclosing such to be his intent, to designate and include any one he pleases as the object of his bounty.

The principal cases cited by Dennis Vandever Hughes in support of his position, Amoskeag Trust Co. v. Haskell, 96 N.H. 89, 70 A.2d 210 (1950); In re Wolf, 98 N.J. Super. 89, 236 A.2d 166 (1967); and In re Myres Estate, 205 Mise. 880, 129 N.Y.S.2d 531 (1954), all involving children adopted out of the blood stream, are distinguishable since variations between the statutory laws of this state pertaining to adoption and those of the states from which the cases arose are, suffice it to say, numerous. Moreover, this court is quick to point out that none of said cases cited by Dennis Vandever Hughes reveal the consequences of adoption in the respective states to be as far reaching as in Missouri. With like celerity this court emphasizes that Amoskeag, Wolf, and Myres did not approach ascertainment of the respective makers’ intent on the premise that they were presumed to know the law and to have utilized language in conformity with such law.

Statutory changes beginning in 1917, and St. Louis Union Trust Co. v. Hill, supra, and Wailes v. Curators of Central College, supra, constituted a major “break through” in this state regarding the consequences of adoption and the obtaining public policy as to the status of adopted children. This “break through” brought direction and stability that was badly needed. The overly simplistic approach urged by Dennis Vand-ever Hughes for resolution of this appeal is inconsistent with the statutory changes and “landmark” cases referred to, and re-cidivous. From a practical standpoint, the “break through” mentioned would be nullified.

Judgment affirmed.

All concur.

      . None of the parties have questioned “Daniel D. Duden” and “Daniel F. Duden” as not being one and the same person.

      . Ch. 119 § 3, RSMo 1865 (Laws of Mo. 1857 § 3 p. 59) ; § 1101 RSMo 1919 (Laws of Mo.1917 p. 194) ; § 453.090, RSMo 1949 (as amended by Laws of Mo.1947 V. II p. 213).

      . “453.090. Consequences of adoption.
      1. When a child is adopted in accordance with the provisions of this chapter, all legal relationships and all rights and duties between such child and his natural parents (other than a natural parent who joins in the petition for adoption as provided in section 453.010) shall cease and determine. Said child shall thereafter be deemed and held to be for every purpose the child of his parent or parents by adoption, as fully as though born to him or them in lawful wedlock.
      2. Said child shall be capable of inheriting from, and as the child of, said parent or parents by adoption as fully as though born to him or them in lawful wedlock and, if a minor, shall be entitled to proper support, nurture and care from said parent or parents by adoption.
      3. Said parent or parents by adoption shall be capable of inheriting from and as the parent or parents of, said adopted child as fully as though said child had been born to him or them in lawful wedlock, and, if said child is a minor, shall be entitled to the services, wages, control and custody of said adopted child.
      4. Said adopted child shall be capable of inheriting from and taking through his parent or parents by adoption property limited expressly to heirs of the body of such parent or parents by adoption.
      5. The word ‘child’ as used in this section, shall, unless the context hereof otherwise requires, be construed to mean either a person under or over the age of twenty-one years. (R.S.1939, § 9614, A.L.1947 V. II p. 213).”


author: PER CURIAM:

text:
    James E. ROWDEN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 26812.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.
    Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Cenobio Lozano, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
    Before WASSERSTROM, P. J„ and SHANGLER and DIXON, JJ.
   PER CURIAM:

An appeal from a trial court order denying relief on a motion under Rule 27.26, V.A.M.R. The trial court order is affirmed.

Movant went to trial on a charge of armed robbery. After two days of trial and at the point of the submission of the case to the jury, his counsel announced to the court he wished to enter a plea of guilty. The trial court conducted a hearing at that time to determine the voluntary nature of the plea, accepted it as voluntary and sentenced movant to five years imprisonment, the minimum punishment for that offense. No appeal was taken from that judgment.

Thereafter, movant, proceeding in forma pauperis, commenced a proceeding pursuant to Rule 27.26, seeking post conviction relief and, specifically, correction of judgment and sentence. The motion was summarily overruled, the court denying movant an evidentiary hearing. On July 23, 1973, this court granted movant leave to file this appeal out of time in accordance with Rule 81.07(a). .

Movant’s sole assignment of error alleges that the court erred in summarily overruling his motion because said motion presented material issues of fact and law in regards the voluntariness and understanding of his plea. Movant went to trial on an information charging robbery by means of a dangerous and deadly weapon, proscribed by Section 560.135, RSMo 1969, V.A.M.S. Movant claims his actual crime was stealing from the person, due to the fact he was not armed. Movant unequivocally pleaded guilty to the lesser included offense of robbery in the first degree, proscribed by Section 560.120 RSMo 1969, V.A.M.S.,'and received the minimum sentence of five years for that offense. Proof of the use of a dangerous and deadly weapon is not required to support that charge. State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75, 77 (1938). At the plea proceeding, movant admitted to each and every factual element which together constitute robbery in the first degree: (a) a felonious taking of the property of, in the care of, one Loretha Butler; (b) against her will; and (c) by putting her in fear of some immediate injury to her person. Section 560.120 RSMo 1969, V.A.M.S.; State v. James, 347 S.W.2d 211, 213 (Mo.1961). Movant has not pleaded facts, which if true, would entitle him to relief, even if his conclusory allegations as to “involuntary” nature of his plea were accepted as factual. They are refuted by the facts elicited at the guilty plea hearing; he is, therefore, not entitled to an evidentiary hearing on his motion. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

Therefore, no error of law appears, and an opinion would have no precedential value. The judgment is affirmed. Rule 84.-16.

All concur.


author: PRITCHARD, Chief Judge.

text:
    W_ J_ I_, Respondent, v. D_ E_ I_, Appellant.
    No. KCD 26875.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      James J. Wheeler, Keytesville, for appellant.
    David Thomas, Carrollton, for respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

On May 10, 1972, the court entered a decree of divorce to respondent wife, but granted the temporary care, custody and control of a minor son born of the marriage to her “pending investigation of both plaintiff and defendant by the welfare department.” On July 13, 1973, after further evidence was presented pertaining to the custody of the minor child, “together with written reports prepared by the welfare offices of both Carroll County and Greene County, Missouri, regarding the suitability of the homes of both plaintiff and defendant for said minor child,” the court entered its final decree awarding its general care, custody and control to the wife, except for certain times on weekends when the husband was to have him. Notice of appeal was filed July 20, 1973. The judgment became final after July 13, 1973, for purposes of appeal as all issues were then disposed of, which under the cases prevents piecemeal appeals. See the factually analogous case of Green v. Green, 240 S.W.2d 741 (Mo.App.1951), where under the then rule an appeal was dismissed as premature because the judgment, although granting a divorce, did not dispose of matter of child custody which had been, as here, taken under advisement by the court. See also Allcorn v. Allcorn, 241 S.W.2d 806, 810[1,2] (Mo.App.1951).

The husband claims (1) that his conduct upon which the wife based her cause of action for divorce had been condoned by her, and that the evidence of general indignities offered by him showed him to be the innocent and injured party; and (2) that the competent and credible evidence in the case showed that the welfare and best interests of the minor child would be better promoted by awarding his custody to the husband.

The wife’s petition for divorce was filed September 13, 1971, and alleged that the husband on “numerous occasions last past” had physically assaulted her; that he was possessed of a vile and ungovernable temper and constantly argued with her; and that he consumed intoxicants to an excessive degree. In his cross-bill for divorce, the husband alleged that the wife was quarrelsome and abusive toward him; she told him she no longer loved him; and that the wife did not properly care for their home or prepare him meals regularly; and that she did not properly care for the child born of the marriage.

According to the wife, the parties lived together until November 21, 1970, at which time the husband beat her up pretty badly with his feet and hands causing bruises on her back and head. At that time he was drinking “pretty bad.” The beating was precipitated by an argument about their unmodern house. The following Monday, the wife went back to husband and continued “to cohabit and live with him” until September 10, 1971. In the latter month the husband struck her, was drinking “and he wasn’t at home at nights like he should be.” The wife lived with her parents for a time after the separation in 1971. In this posture, the husband claims that there was a condonation by the wife of his conduct occurring, as he says in November, 1970, after which the wife went back to him. The claim overlooks the testimony of the wife as to the husband striking her in September, 1971, after which the parties parted company. These facts have the effect of reviving the original November, 1970, grievance. Schuler v. Schuler, 290 S.W.2d 192, 197[7] (Mo.App.1956). The whole of the evidence in this respect is conflicting, and deference must be therefore accorded the trial court in the resolution of the issue. Cox v. Cox, 488 S.W.2d 275, 276[1-4] (Mo.App.1972). The trial court did not err in granting a decree of divorce to the wife upon her evidence, and of course the court was not required to believe the evidence of the husband as to his exemplary-conduct during the marriage.

On the original hearing, the testimony concerning the fitness of the parties to have custody of the minor child was this: The parties lived in a trailer home, which was not modern, near the husband’s parents. The wife had to carry the water from outside to it, and the husband did not help her. According to the husband, the wife took care of the baby very poorly, letting him go for hours with dirty and wet diapers. She did not keep the house clean. If he were awarded custody of the child, the two would have lived with his parents who had a five room modern home on 5 acres. The husband had a younger brother, age 21, who also lived with his parents.

The husband’s uncle testified that he visited the home of the parties on two occasions. On the first occasion he saw clothes piled on the divan and the living room was more or less a shambles. In the kitchen there were dishes piled on the table and stove. The baby was dirty and wet, and was not changed for three hours that he was there. Later he visited the trailer home which was on the 20 acres owned by the husband’s parents specifically to see the baby. The house was dirty and there were dishes sitting around on the cabinets. The baby was dirty and had not been changed for some time — it was soured and had a bad odor. The aunt testified also to the effect that the house was a mess.

The husband’s father testified that the house was always dirty and filthy; that the wife took no care of the house, did not cook meals, and left dishes and food out. He had seen the child wear the same diaper for 24 hours. The husband’s mother’s testimony was also that the home was filthy, with dead mice on the floor, and the child was not cared for.

The wife’s school records were produced showing that her I.Q. tests given her on two occasions showed 79 to 62. The State Department of Education standard is that an I.Q. of 59 to 78 is the classification for “educable mental retarded.” She dropped out of school at the age of 16 after 6 years in a specialized class. Her father testified that the type of education was for sewing, cooking and care of a home.

Deputy Sheriff Edson was called to the wife’s parents’ home in Carroll County concerning the husband’s visitation privileges. He saw the baby and it appeared to him to be well and cared for.

The wife denied that she ever let the baby go dirty. It was not easy keeping the unmodern house because she had to carry water, and the husband did not assist her in any way. She denied that there was a dead mouse on the floor of the home as testified to by the husband’s mother.

On the husband’s motion, the court ordered the wife to submit to a physical and mental examination pursuant to § 510.040, RSMo 1969, V.A.M.S. (and Rule 60.01 V. A.M.R.). The wife did so, and although there was a request, no report of the examining physicians was supplied to her.

The hearing was resumed on May 29, 1973, and the testimony, more relevant in point of time to the court’s final order of custody and thus to the fitness of the parties to have the custody of the child, showed these facts: The husband’s parents were steadfast in their desire to care for the child in their home where the husband still resided. During the weeks after December, 1972, when the child was visiting the husband in their home, the child used “just terrible language. It is just sickening. It makes you sick to listen to the language that the child uses.” On visits, the child did not have more than one change of clothing sent with him for a weekend. The clothes were ripped and many times they were “damp and moldy smelling,” and never ironed, but the child was ordinarily clean. The parent’s other son no longer lived in their home in May, he having married. During the time that the child had been visiting the husband in his parent’s home, he had grown to really enjoy his father, and the child was cheerful in the home and having a good time. He was never mistreated and there were no disciplinary problems.

For a time before she remarried, according to her father, the wife lived with her parents. She did not work because it took all of her time to take care of the child. The wife then went to church every Sunday.

The husband testified that when he picked up the child for weekend visits, his clothing was very dilapidated, the material was roughed up as a dryer would do if left in it too long. The clothes were often damp and had a foul odor about them, “a smell of a doggy smell.” The child’s hair was never combed, and there was dirt behind his ears and in his ears on one occasion. When it was time to return the child to the wife, the child never wanted to go. The child would live with the husband, if he got custody, in his parents’ home which he described as immaculate, and his mother was an extraordinarily good cook. On cross-examination, the husband testified that he was interviewed by a Greene County welfare caseworker, and a home study was made; that if she gave a good report of him and his parents and the home, he would agree with it. Conversely, by the same token, if the Carroll County welfare caseworker made two home studies and gave the wife and her present husband a good report and recommendation, “You would say that they are honest in their situation, is that correct ? A. I certainly couldn’t call the Welfare crooked. I wouldn’t do that.” The husband would expect his mother to take the place of the wife as far as seeing after the child, cooking, washing and mending his clothes. If he no longer lived with his parents, and was remarried, whoever he married would care for the child while he was at work.

On behalf of the wife, her mother testified that she saw and visited with the child in the wife’s home about once a week. The wife kept a good house, prepared adequate meals for the child, and kept him clean. She had never seen the child when his clothing needed repairing, nor did she see anything to indicate that he was neglected.

The wife’s present husband testified that he married her on December 2, 1972. He was buying a home, was employed as a school maintenance man at about $322.00 per month. The child had been living with them since the marriage in the four room and a bath home which he has remodelled. He has got along well with the child who goes to church with them and out to play. The wife fixed the meals, did the cleaning and laundry in the home for all of them, including the child. The present husband did not drink and no profanity was used in the home. The wife disciplined the child when he deserved it, but did not abuse him. She did not allow him to run filthy, but cleaned him up right quick. The wife read intelligently, including newspapers a lot, and the recipes for food she made.

The wife testified that the child and her present husband got along well. She used the child support payments for the child. She kept the house clean and the child clean, bathing him every day.

Elliott Carr, a special investigator employed by the husband, visited the wife’s home prior to her remarraige. He described the house as “just a normal farm home.”

The facts set out above are rather detailed because the husband makes an attack on the court’s use of Division of Welfare reports, which he says offends Flickinger v. Flickinger, 494 S.W.2d 388 (Mo.App.1973). That case is distinguishable because here the trial court’s adjudication of the matter of custody does not depend solely upon the investigative reports. The trial court did not delegate its power and duty to resolve the matter to the Division of Welfare caseworkers. There is sufficient evidence in the record, above set forth, to support the court’s award of general custody of the child to the wife. It shows her present situation to be quite stable (there is no evidence to the contrary), and that the child is being well cared for. Any conflicts in the testimony in that respect were for the trial court to resolve. E- (S-) v. E-, 507 S.W.2d 681, 683[2] (Mo.App.1974), and cases cited. The welfare reports are merely corroborative of the evidence in the case as to the respective conditions ,of the parties. Note also that the husband conceded that the welfare reports would not be inaccurate. The question before the court under Cascio v. Cascio, 485 S.W.2d 857, 859 (Mo.App.1972), was what order of custody of the child, in its best interest and welfare, should be made. In that determination, the trial court has broad discretion. Chilcutt v. Baker, 384 S.W.2d 854, 860[6-8] (Mo.App.1964); Paxton v. Paxton, 319 S.W.2d 280 (Mo.App.1958). Clearly, under the evidence, the trial court did not abuse its discretion in awarding general custody of the child to the wife.

The judgment is affirmed.

All concur.


text:
    William L. HUFFMAN, Respondent, v. DEPARTMENT OF REVENUE, State of Missouri, Appellant.
    No. KCD 27214.
    Missouri Court of Appeals, Kansas City District.
    May 5, 1975.

      John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for appellant.
    James J. Wheeler, Keytesville, for respondent.
    Before WASSERSTROM, P. J, and SHANGLER and DIXON, JJ.
   PER CURIAM:

The Director of Revenue, acting- pursuant to Section 302.304, sub. 3, RSMo Supp.1972, V.A.M.S., revoked respondent’s motor vehicle operator’s license for a period of one year beginning August 16, 1973, because respondent had accumulated 12 points in twelve months. Respondent appealed by filing a petition for review of this revocation in the circuit court of the county of his residence, as provided for by Section 302.311, RSMo 1969, V.A.M.S., joining as defendant the “Department of Revenue, State of Missouri.”

The circuit court heard the cause on January 14, 1974, found that the order of revocation was erroneously made and ordered that the proper order would have been suspension of the operator’s license for a period of 90 days from September 16, 1973. The defendant appeals.

On the appeal, we are immediately confronted by the question of the trial court’s jurisdiction and, even though not raised by appellant, must consider it ex gratia. See Howell v. Reynolds, 249 S.W. 2d 381 (Mo.1952) ; March v. Gerstenschlager, 322 S.W.2d 743 (Mo.1959). In Shepherd v. Department of Revenue, 377 S.W.2d 525 (Mo.App.1964), the court noted that the statutory responsibility for the revocation of motor vehicle operator licenses under chapter 302 was that of the Director of Revenue in his official capacity as a state officer and that the Director of Revenue was a necessary party to any appeal authorized by Section 302.311. Further, the court pointed out that Section 302.311 provides for a trial de novo and that any judgment sought by the appealing party would have to operate on the Director of Revenue and directly affect him in his official capacity. Shepherd thus held that it was absolutely vital that the Director of Revenue in his official capacity, be named a party defendant and that the failure to do so was fundamental and jurisdictional and called for dismissal of the appeal.

It follows that in this case respondent’s failure to join the Director of Revenue in his official capacity as a party defendant in the circuit court was a jurisdictional defect. Since the circuit court had no jurisdiction, its judgment was absolutely void. Randles v. Schaffner, 485 S.W.2d 1 (Mo.1972).

Accordingly, the judgment is reversed, and the cause is remanded with directions that it be dismissed for want of jurisdiction. It is so ordered.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Steven TIBBS, Defendant-Appellant.
    No. 36346.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 13, 1975.

      Charles D. Kitchin, Public Defender, Thomas J. Prebil, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Clarence Thomas, Asst. At-tys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Steven Tibbs, convicted of operating a motor vehicle without the owner’s consent, § 560.175, RSMo 1969, V.A.M.S., and committed to the department of corrections for a period of 5 years, has appealed.

At 2 a. m. on the second day after a 1965 Buick was reported stolen Officer Williams saw a 1965 Buick “slide past” a stop sign and “die right there.” The officer had seen the vehicle travel approximately one quarter of a block; observed one person in the vehicle; saw this appellant get out of the vehicle, walk in front of it and raise the hood; observed that the ignition had been punched, and found a screwdriver on the seat of the Buick. The license number was listed on the officer’s “hot sheet” as that of a stolen car. The officer arrested appellant on a charge of operating a motor vehicle without the owner’s consent.

Appellant claims error in admitting testimony of Officer Williams concerning the starting of the Buick. After the screwdriver had been admitted in evidence the assistant circuit attorney, Mr. Brown, asked this question: “When an ignition of an automobile has been punched, how can the automobile be operated?” Appellant’s attorney objected on the ground that the officer was not an expert on auto mechanics and was not qualified to testify to that. The question was withdrawn, after which the following appears of record:

“Q. (By Mr. Brown) Officer, State’s Exhibit 4 which you’re holding in your hand: What, if anything, did you do with that that night?
“A. I attempted to start the auto.
“Q. And how did you attempt to do that?
“A. By inserting it into the punched ignition and turned the ignition on.
"Q. What happened when you turned the ignition on?
“A. The ignition engaged, and the engine turned.
“Q. Does that mean the starter motor itself ?
“A. Starter engaged.
“Q. Did the engine of the car itself start ?
“A. No, the engine didn’t catch.
“Q. So with the punched ignition, you can insert a screwdriver in it and start a car?
“A. Yes.
“MR. PREBIL: I object to the form of the question, your Honor — leading and suggestive.
“THE COURT: Well, on the objection, Officer, have you ever started a car in that manner before, that you’ve just described ?
“THE WITNESS: Yes, I have.
“THE COURT: Objection overruled. You may answer the question. Would you answer the question?
“A. I inserted it, and the engine didn’t catch, but the ignition engaged and the car attempted to start.
“Q. (By Mr. Brown) So a screwdriver can be used to start a car with a punched ignition ?
“A. Yes, sir.”

We find no prejudicial error in the ruling of the court, for three reasons. First, the objection was not timely made, because not made until after the answer was given. State v. Phillips, 480 S.W.2d 836, 837[2] (Mo.1972). Second, the objection overruled was interposed on the sole ground that the form of the question was leading and suggestive, but no motion to strike was offered, and both before and after the allegedly offensive question was asked the witness was permitted without objection to detail his activities in attempting to start the Buick. State v. Thomas, 82 S.W.2d 885, 887-888[2] (Mo.1935). Third, if the objection originally made (to the qualification of the witness to testify as an expert on auto mechanics) be considered to have been made to the question above italicized, there was no abuse of discretion in overruling it on this ground for the reason that in passing upon the witness’ qualifications the court had the benefit of the witness’ previous successful experience in starting a car in this manner, and the fact that this device actually turned over the engine on this occasion, notwithstanding the engine did not “catch.” There was a sufficient basis upon which to rule that the witness could answer the question. The extent of a witness’ training or experience “goes to the weight, not the admissibility, of his testimony.” Swope v. Printz, 468 S.W.2d 34, 40 (Mo.1971).

Appellant further claims that he was denied a fair and impartial trial as guaranteed by federal and state constitutions “in that the trial court assumed a prosecutorial role” by interrogating Officer Williams.

The interrogation to which appellant objects follows:

“THE COURT: Did you notice the person behind the wheel of the car when you observed it?
“MR. PREBIL: Your Honor, I’m going to object to any further inquiries of the Court at this time.
“THE COURT: Be overruled.
Would you answer the question, Officer?
“THE WITNESS: I didn’t see him that well, no, sir.
“THE COURT: Did you see a person —a driver — a person behind that wheel?
“THE WITNESS: Yes, sir; yes, sir.
“THE COURT: And what was the charge that you placed against the subject, as you called him, when you arrested him?
“THE WITNESS: Operating a Motor Vehicle Without the Owner’s Consent.”

Prior to the court’s interrogation the assistant circuit attorney had elicited from the witness the facts recited in the second paragraph of this opinion. In addition the officer, asked whether the man he arrested for driving the car was in court, had answered affirmatively and pointed to appellant. Furthermore, the officer had testified that he saw “Mr. Tibbs” get out of the car. Notwithstanding there was sufficient evidence to identify the defendant as the operator of the Buick the trial judge, in the exercise of the broad discretion granted him in asking questions of witnesses, apparently in an effort to clarify Officer Williams’ testimony, asked the questions above quoted, thereby developing the truth more fully. In so doing the court did not err. State v. Cook, 440 S. W.2d 461 (Mo.1969). Appellant cites aggravated cases of judicial interference, such as State v. James, 321 S.W.2d 698 (Mo.1959), and State v. Smith, 422 S.W.2d 50 (Mo. banc 1967), cert. den., 393 U.S. 895, 89 S.Ct. 150, 21 L.Ed.2d 176, but the questions complained of demonstrate no zeal, hostility or departure by the trial judge from the “fine balance of impartiality, neutrality and objectivity” referred to in State v. Smith, supra, and we are constrained to rule that the interrogation was not improper and did not constitute. an abuse of discretion.

Judgment affirmed.

SMITH, C. J., and STOCKARD, Special Judge, concur.


author: GUNN, Judge.

text:
    Irene McMILLIN, Plaintiff-Respondent, v. SEARS, ROEBUCK AND CO., Defendant-Appellant.
    No. 36226.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 13, 1975.

      Anderson, Gilbert, Wolfort, Allen & Bierman, Karl J. Keffler, St. Louis, for defendant-appellant.
    Lloyd E. Eaker, Clayton, for plaintiff-respondent.
   GUNN, Judge.

Plaintiff-respondent sought damages against defendant-appellant Sears Roebuck and Co. on a charge of malicious prosecution. A jury verdict was returned in plaintiff’s favor for actual and punitive damages. Sears has appealed, and we affirm the judgment.

This case had its inception when plaintiff’s husband purchased an air conditioner from Sears and charged the cost of it to his account without plaintiff’s knowledge or participation. When plaintiff’s husband failed to make payment of the charge, Sears sought to collect from plaintiff who disclaimed any knowledge of the account and who, in fact, had no account with Sears. Sears then instituted an action against plaintiff in Jefferson County magistrate court for the amount of the account. At the time of the magistrate action, plaintiff was separated from her husband. The trial in the magistrate court resulted in a judgment finding that plaintiff was not indebted to Sears. But nevertheless, subsequent to the magistrate judgment in plaintiff’s favor, Sears made repeated demands upon plaintiff for the payment of her husband’s account. Plaintiff then instituted civil suit against Sears for malicious prosecution and sought $225 actual damages for attorney’s fees in defending the magistrate action and for miscellaneous expenses, together with a prayer for punitive damages. The jury returned a verdict in favor of plaintiff for $225 actual damages and $12,-000 in punitive damages.

Sears’ appeal is directed to certain questions asked by plaintiff’s counsel during the voir dire examination of the jury panel. During the voir dire examination, plaintiff’s counsel inquired of the veniremen whether any of them worked for or had an interest in Sears or any of Sears’ affiliates or subsidiaries “like Allstate Insurance Co.” Sears’ objection to the question relating to Allstate on relevancy grounds was overruled. On appeal Sears contends that it was error to permit voir dire examination as to Allstate Insurance Co., as it improperly injected the issue of insurance into the proceeding without setting any proper foundation as to whether Allstate was conducting the defense of the case when, in fact, it was not; that the purpose of the questioning was to poison the minds of the jury that a financially strong insurance company would fund any judgment.

We find no error in the plaintiff’s inquiry into Sears’ affiliate, Allstate Insurance Co. In Bower v. Hog Builders, Inc., 461 S.W.2d 784 (Mo.1970), a case particularly apposite to the instant case, the Missouri Supreme Court said 1. c. 802:

“Defendant says this prefatory paragraph is the same as advising the jury that other companies are involved which will pay the judgment; that questions are permitted on voir dire examination as to interest in an insurance company, but no cases go so far as to preface the question with the recitation that such insurance company has a policy of insurance protecting the named defendant. No error is present. Certainly the plaintiffs were entitled to inquire as to any interest of prospective jurors in the parent and affiliated companies which obviously had an interest in the outcome of the case, and certainly the panel was entitled to know, as a basis for disclosing interest, the relationships of the companies. ‘A stockholder in a corporation which owns stock in another company is disqualified to act as juror in an action against the latter company.’ 47 Am.Jur. 2d Jury, § 325, p. 896. Plaintiffs did not suggest in any way that the parent company would itself pay any judgment.” (emphasis added)

The trial judge noted that the purpose of the limited questioning into Allstate was not to inject insurance into the case in the traditional sense where an insurance company would be bearing the financial burden of any judgment—and, indeed, the evidence was clear that Sears’ own financial worth was substantially greater than Allstate’s. Rather, the inquiry into Allstate was to determine whether any of the prospective jurors had an interest in Sears or its affiliates or subsidiaries. Under Bower v. Hog Builders, Inc. supra, the inquiry was proper. The trial court is vested with broad discretion in controlling the voir dire examination. Barnes v. Marshall, 467 S.W.2d 70, 76 (Mo.1971); State v. Hill, 518 S.W.2d 682, 685 (Mo.App.1975). There was no abuse of the trial court’s discretion in permitting plaintiff to probe for bias and prejudice of prospective jurors relating to their employment or business dealings with one of Sears’ affiliates or subsidiaries. Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34, 36-37 (Mo.App.1967).

Inasmuch as plaintiff sought punitive damages, evidence of Sears’ financial worth was relevant and proper. State ex rel. Kubatzky v. Holt, 483 S.W.2d 799, 804 Mo.App.1972); Wisner v. S. S. Kresge Co., 465 S.W.2d 666, 669 (Mo.App.1971). In that regard, we note that Sears’ financial statement, which was part of the evidence before the jury, makes specific reference of Allstate Insurance Co. as a part of the financial structure of Sears. Sears can therefore scarcely complain of any prejudice from the inquiry into Sears’ affiliates when Allstate is before the jury as part of Sears’ comprehensive financial position as prepared by Sears.

Sears has raised one other point on appeal: that the damages awarded were excessive and the result of bias and prejudice of the jury. However, there are no citations of authority in support of this point, and we treat it as abandoned on appeal. J.L.W. v. D.C.W., 519 S.W.2d 724 (Mo.App.1975); Earney v. Clay, 516 S.W. 2d 59, 63 (Mo.App.1974).

Plaintiff has filed a motion for damages against Sears for a frivolous appeal. We find that there was no apparent lack of sincerity in Sears’ appeal; that the appeal was based on a good faith mis-perception of the function of plaintiff’s voir dire examination into Allstate. Plaintiff’s motion for damages for frivolous appeal is therefore denied. See Lafayette Fed. Sav. & Loan Ass’n of Greater St. Louis v. Koontz, 516 S.W.2d 502 (Mo.App.1974); State ex rel. State Highway Comm’n v. Sheets, 483 S.W.2d 783 (Mo.App.1972).

The judgment of the trial court in favor of plaintiff for actual and punitive damages is affirmed.

SIMEONE, P. J., and McMILLIAN, J„ concur.