source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    GANDA, INC., and John A. Glover, Appellants, v. ALL PLASTICS MOLDING, INC., Appellee.
    Nos. 5424, 5425.
    Court of Civil Appeals of Texas, Waco.
    March 27, 1975.
    Rehearing Denied May 1, 1975.

      Geary, Brice, Barron & Stahl, G. Leroy Street, Dallas, for appellants.
    Locke, Purnell, Boren, Laney & Neely, John Guittard, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment awarding plaintiff All Plastics, judgment against defendants Ganda, Inc., and John A. Glover, for $27,738.59; denying plaintiff attorneys’ fees; and denying defendant Ganda, Inc., recovery against plaintiff.

All Plastics sued Ganda for $27,738.59 for fabricated plastic parts furnished Gan-da (for use in constructing fire extinguishers), and sued Glover, (president and 80% owner of Ganda) on his written guaranty of the indebtedness of Ganda. The suit was plead on verified account and alternatively upon breach of contract.

Ganda filed cross action against All Plastics for “actual, indidental and consequential damages” in the amount of $439,781.87, for breach of express and implied warranties; and Glover plead no consideration and alternatively partial failure of consideration for the execution of his guaranty.

Prior to trial All Plastics filed motion for partial summary judgment alleging the plaintiff and defendant Ganda expressly contracted that plaintiff “shall in no event be liable for special or consequential coverages” ; and the trial court entered summary judgment that Ganda take nothing as to any item of special or consequential damage alleged in its cross action.

Trial thereafter was to a jury which found:

1) Plaintiff All Plastics substantially performed the contract entered into by plaintiff and Ganda, Inc., on December 30, 1971. (Substantial performance was defined as full performance insofar as the right to recover on the contract is concerned).
2) The reasonable market value and/or agreed price for the goods and/or specially fabricated material furnished by plaintiff All Plastics to Ganda in accordance with the contract was $27,738.59.
3) The guaranty executed by defendant John A. Glover on January 24, 1972 was for a valuable consideration.
4) Defendant Ganda exercised ownership over the parts delivered to it by All Plastics after any complaints were made to All Plastics.
5) Ganda sold Model 100-A Kitchen Fire Ranger using plaintiff All Plastics’ parts after October 2,1972.
6) Ganda advertised the Model 100-A Kitchen Fire Ranger using plaintiff All Plastics’ parts as safe and fit for its intended purposes after October 2, 1972.
7) Prior to accepting Ganda’s order, plaintiff All Plastics knew the particular purpose for which the plastic parts were intended to be used.
8) At the time All Plastics delivered the plastic parts to Ganda some of said plastic parts were not reasonably fit for the purposes for which they were intended to be used.
9) All Plastics did not make the express warranty that the plastic parts were of uniform size and quality.
11) Defendant Ganda, should not be given chedit for any sum of money for plastic parts not reasonably fitted for the purposes for which they were intended.

The trial court rendered judgment: 1)finding plaintiffs reasonable attorneys’ fees were $7500; $1500. additional if the case went to the Court of Civil Appeals; $1000. additional if the case went to the Supreme Court; and that plaintiff is not entitled to recover attorneys’ fees under Article 2226 Vernon’s Ann.Civ.St. of Texas.

2)Decreeing plaintiff All Plastics recover $27,738.59 with 6% interest from January 1, 1973 jointly and severally from defendant Ganda, and defendant Glover; that plaintiff recover nothing for attorneys’ fees; and that defendant Ganda take nothing against plaintiff All Plastics.

Defendants appeal on four points contending the trial court erred:

1) In granting plaintiff’s motion for partial summary judgment.
2) In rendering judgment for plaintiff in any amount as the $27,738.59 found by the jury to be due plaintiff is less than $40,331.14 which the evidence reflects had been paid to plaintiff by defendant Ganda.
3) In awarding judgment against John A. Glover because the written guaranty executed by Glover was not supported by consideration.

Plaintiff, All Plastics by cross point contends the trial court erred in denying it its reasonable attorneys’ fees under Article 2226 because plaintiff’s claim for custom molded plastic parts is plainly a claim for special fabricated materials furnished to the buyer defendant Ganda, for assembly with other non plastic parts into a finished product.

Defendants’ contention 1 is the trial court erred in granting the partial summary judgment.

Defendant Ganda’s cross action sought recovery against plaintiff All Plastics for $439,781.87 “actual, incidental, and consequential damages”.

The record on summary judgment reflects that the contract of the parties provided “23. [All Plastics] shall in no event be liable for special or consequential damages.” Section 2.719 of the Texas Business and Commerce Code, V.T.C.A., provides “(c) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.”

All Plastics affirmatively demonstrated it was entitled to summary judgment when it properly proved up the limitation provision in paragraph 23 of the contract. Ganda, was then under a duty to come forward with some evidence raising a fact issue on its unconscionability defense to the enforcement of the provision. When a plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to his summary judgment if he demonstrates by evidence that there is no material fact issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense. Gulf C & S F Ry. Co. v. McBride, S.Ct., 159 Tex. 442, 322 S.W.2d 492, 500; Kuper v. Schmidt, S.Ct., 161 Tex. 189, 338 S.W.2d 948, 951; Watkins Motor Lines, Inc., v. Plantation Foods, Inc., CCA, NWH, Tex.Civ.App., 485 S.W.2d 951, 952.

Moreover the partial summary judgment excluded only “Special or consequential damages”, but did not exclude items of incidental or actual damages. During trial Ganda, Inc., introduced no evidence of incidental or actual damage, and at no time did the trial court exclude evidence of incidental or actual damage because of the partial summary judgment. Ganda brings forward no points to the effect that the trial court excluded evidence of incidental or actual damage at the time of trial, and Ganda did not secure any finding that All Plastics was liable to Ganda for any incidental or actual damages.

Finally Ganda’s allegations of special or consequential damages consisted of a speculative claim for commercial loss in profits and general operating expenses for a new and unestablished business that never showed a profit.

The rule denying a recovery where the facts show that such profits claimed are too uncertain or speculation, or where the enterprise is new or unestablished, is enforced on the ground that the profits which might have been made from such business are not susceptible of being established by proof to that degree of certainty which the law demands. Southwest Battery Corp. v. Owen, S.Ct., 131 Tex. 423, 115 S.W.2d 1097, 1099.

Defendants’ contention 2 complains of the judgment for plaintiff for $27,738.59 when the evidence reflects that $40,331.14 was paid to plaintiff by defendant, Ganda, Inc.

The jury found the reasonable market value of the materials furnished by All Plastics to Ganda in accordance with the contract was $27,738.59. Defendant Ganda did not plead, prove or request issues on payment. The record reflects that $40,331.14 was paid to All Plastics by Gan-da in partial payment on accounts owed, and that credit was given by All Plastics for such payments, but that there was still a balance due over and above the $40,331.14 of $27,738.59; and Ganda introduced no evidence that any part of the $27,738.59 had been paid, and defendant Glover, President of Ganda, specifically testified that no part of the $27,738.59 had been paid.

The evidence supports the finding of the jury. East Texas Theatres, Inc., v. Rutledge, S.Ct., Tex., 453 S.W.2d 466, and the finding supports the judgment. First Federal Savings & Loan Assn. v. Sharp, S.Ct., Tex., 359 S.W.2d 902.

Defendants’ contention 3 is that the trial court erred in rendering judgment against Glover on his written guaranty because it was not supported by consideration.

All Plastics and Ganda contracted on December 30, 1971. Glover delivered his written guaranty to All Plastics on January 26, 1972. Ganda was a new business with no established credit. Glover was its president and owned 80% of its stock. Glover was a man of considerable assets. All Plastics had the right to insist on cash payment in advance for parts shipped to Ganda, and there is evidence it would not have shipped parts to Ganda without the guaranty from Glover. After receiving the guaranty from Glover All Plastics shipped parts to Ganda on credit. Glover’s guaranty was supported by consideration. Waller v. Missouri City State Bank, CCA, NRE, 482 S.W.2d 40; Womack v. Ballard Sales Co., CCA, NWH, Tex.Civ.App., 411 S.W.2d 956; Gulf Liquid Fertilizer Co. v. Titus, S.Ct., 163 Tex. 260, 354 S.W.2d 378.

All of defendants’ points and contentions are overruled.

Plaintiff’s cross point contends the trial court erred in denying its reasonable attorneys’ fees under Article 2226 RCS.

All Plastics specially fabricated plastic component parts under a contract with Ganda. Ganda assembled the plastic pieces together with other items into a home fire extinguisher called the Kitchen Fire Ranger Model 100-A.

Pacific Coast Engineering Co. v. Trinity Construction Co., S.Ct., Tex., 481 S.W.2d 406 holds that a plaintiff can recover the balance due on the contract price plus reasonable attorneys’ fees on a claim for gates furnished to a defendant who was building a dam. The court restated the broad definition of materials furnished under Article 2226 as “the substance or substances, or the part, goods, stock or the like of which anything is composed or may be made.”

Here All Plastics especially fabricated plastic component parts clearly serve no useful purpose standing alone and become useful only when, as intended, are assembled by Ganda with other components to become part of a finished product, a fire extinguisher. We think they constitute specially fabricated materials furnished, and that All Plastics is entitled to the reasonable attorneys’ fees found by the trial court’s judgment as against defendant Ganda.

Defendant Glover’s liability is as a guarantor of Ganda. The guaranty agree-merit does not provide any contractual obligation to pay All Plastics attorneys’ fees. Signers of guaranty agreements are not liable for attorney’s fees incurred in suits to enforce such guaranty agreements in the absence of express provision for such liability. Blume v. National Homes Corp., S.Ct., Tex., 441 S.W.2d 176.

All defendants’ points are overruled. Plaintiff’s cross point is sustained as to Ganda.

The judgment is modified to award plaintiff All Plastics judgment against defendant Ganda for its reasonable attorneys’ fees as found by the trial court, $7500. plus $1500. in the Court of Civil Appeals and an additional $1000. if application for writ or error is made to the Supreme Court. As modified the judgment is affirmed.

Costs of appeal taxed ½ against Ganda and Glover, jointly and severally; and ½ against Ganda.

Modified and affirmed.


author: WALTER, Justice.

text:
    The UNIVERSITY OF TEXAS SYSTEM, Appellant, v. ROBERT E. McKEE, INC., et al., Appellees.
    No. 4772.
    Court of Civil Appeals of Texas, Eastland.
    April 11, 1975.
    Rehearing Denied May 2, 1975.

      Bill Campbell, Asst. Atty. Gen., Austin, for appellant.
    Joe F. Canterbury, Jr., and Robert W. Smith, Smith, Smith, Dunlap & Canterbury, Dallas, for appellees.
   WALTER, Justice.

Robert E. McKee, Inc. and The McCally Company recovered a judgment against The University of Texas System for $174,300.00 and the University has appealed.

The University’s statement of the facts is substantially correct and is as follows:

“Appellant advertised for construction of public buildings known as Phase I Expansion Program at the University of Texas Southwestern Medical School at Dallas, located at 5323 Harry Hines Boulevard, Dallas, Texas. The bids were opened on April 20, 1971, with Ap-pellee-McKee as General Contractor, being the successful bidder therefor in the sum of $23,294,800.
Upon acceptance of such bid, Appellant, as owner, and Appellee-McKee, as General Contractor, entered into a prime contract, dated May 4, 1971, whereby Appellee-McKee agreed to build in accordance with the plans and specifications of Appellant the aforementioned Phase I Expansion Program.
The aforementioned contract contains the following provision: (Added Provisions Governing the Contract)
(A.) SUBCONTRACTS: As soon as practicable and before awarding any subcontracts, the Contractor shall notify the Architect in writing of the names of the subcontractors proposed for the principal parts of the work, and for such other parts as the Architect may direct, and shall not employ any to whom the Architect or the Owner may have a reasonable objection.
‘If before or after the execution of the Contract a change of any subcontractor on such list is required by the Architect or by the Owner prior to the award of the relevant Contract, the Contract Sum shall be increased or decreased by the difference in cost occasioned by such change.
‘The Contractor shall not be required to employ any subcontractor against whom he has a reasonable objection.
‘The Contractor agrees to bind every subcontractor and every subcontractor agrees to be bound by the terms of the Agreement, the General Conditions of the Contract, the Supplementary General Conditions, the Drawings and Specifications as far as applicable to his work, including the following provisions of this article unless specifically noted to the contrary in a subcontract approved in writing as adequate by the Owner or Architect.’ (Emphasis Added).
As required by the contract documents, Appellee-McCally, a bidder for the mechanical portion of the prime contract, submitted a list of its subcontractors and material suppliers on the mechanical portions of the work to Appellee-McKee on August 18, 1971. Appellee-McKee, in turn, furnished the list to Appellant, which included the name of All-Temp Insulation Co. for the insulation work.
By contract dated September 1, 1971, Appellee-McKee awarded a subcontract to Appellee-McCally whereby Appellee-McCally agreed to perform all mechanical portions of the work for $4,725,000.
Appellant’s engineers undertook an investigation and by letter dated December 10, 1971, notified Appellant that All-Temp Insulation Co. would be an unacceptable subcontractor and recommended its disapproval because (1) All-Temp Insulation Co. had performed unsatisfactory work for previous clients; (2) All-Temp Insulation Co. had never undertaken a project of the magnitude involved; (3) a larger company with more qualifications was needed to properly do a job as large and complicated; and (4) All-Temp Insulation Co. would have to store its materials at an off-site warehouse due to current conditions at the job site.
By letter dated December 23, 1971, Appellant notified Appellee-McKee that All-Temp Insulation Co. was not an acceptable subcontractor for performance of the mechanical covering and insulation work. On or about January 31, 1972, Appellant approved B & B Engineering & Supply Company as insulation subcontractor. On February 16, 1972, Appellee-McCally entered into a subcontract with B & B Engineering & Supply Company to perform the mechanical covering and insulation work for $525,000.
Appellees contend that All-Temp Insulation Co. would have undertaken to perform the insulation work for $359,000. Therefore, demand was made upon Appellant for payment of the difference in the bid of All-Temp Insulation Co. and the contract with B & B Engineering & Supply Company, plus 5%, or a total of $174,300.
Upon Appellant’s refusal to pay to Ap-pellees’ demand for $174,300, Appellee instituted this suit on December 21, 1972, almost one year after Appellant notified Appellees that All-Temp Insulation Co. would not be an acceptable subcontractor.”

Article 3 of the Contract expressly provides that the “contract sum” to be paid by the Owner to the Contractor for performance of the contract shall under certain conditions, as provided in the contract, be subject to additions and deductions.

In his findings of fact and conclusions of law the court concluded (1) the University did not make an investigation concerning All-Temp until after this law suit was filed; (2) the University did not have reasonable cause to reject All-Temp as the insulation subcontractor; (3) the action of the University in requiring a change from All-Temp Insulation Co. as a subcontractor was unreasonable; (4) on June 14, 1972, U. T. wrongfully rejected the request of McCally and McKee for an increase in contract price due to the rejection by U. T., of All-Temp Insulation Co. and the subsequent approval of B & B to perform the insulation portion of the mechanical work on the Medical School project; (5) that $359,000.00 for which All-Temp agreed to perform the insulation work was a reasonable price for such work; (6) that All-Temp Insulation Co. was a qualified contractor to perform the insulation portion of the mechanical work on the Medical School project; (7) that McKee and Mc-Cally are substantial contractors and both stood between the insulation subcontractor on the mechanical work on the Medical School Project and U. T., the Owner, in assuring performance of such work; (8) that pursuant to Paragraph A of the ADDED PROVISIONS GOVERNING THE CONTRACT, U. T. is obligated to pay the difference in cost occasioned by the rejection of a subcontractor whether such rejection be reasonable or unreasonable, by causing an increase in the Contract Sum of the contract between McKee and U. T. for the benefit of the contractor or subcontractor whose subcontractor is rejected.

We find no merit in the University’s contentions that the court erred in finding (1) that All-Temp’s bid of $359,000.00 was a reasonable price for such work; (2) that the University did not have reasonable cause to reject All-Temp; and (3) that All-Temp was a qualified contractor.

Mr. Reich, who operated the All-Temp Insulation Company testified he had twenty years of experience in the insulation business and had been doing business as All-Temp Insulation Co. for eleven years and that his bid of $359,000.00 on the Medical School job was a reasonable bid and that it would afford him a reasonable profit. J. E. McCally testified that he had used All-Temp on other projects and it was qualified to do the insulation work on the project. In the University Engineers’ Report they recommended disapproval of All-Temp. Their number one objection was as follows:

“From all that we can find out, to date All-Temp does not have a Union contract with Local 21 or 22 which could cause serious delays and shut-downs on the job.”

Mr. Morris testified that the University did not rely on their Engineers’ report that asserted All-Temp was nonunion. His testimony also reveals that All-Temp was rejected by letter dated December 23, 1971, addressed to McKee and signed by the University’s construction manager, Les A. Braun.

We hold there was some evidence of probative force to support the court’s finding that the University did not have reasonable cause to reject All-Temp as a qualified contractor.

The court’s finding that the University did not make an investigation of All-Temp until after this law suit was filed is not supported by the record, however, such finding is immaterial because the stipulation of the parties reveals that All-Temp was rejected by the University. We hold this to be a harmless error. Rule 434, Texas Rules of Civil Procedure.

We agree with the court’s conclusion of law “that pursuant to Paragraph A of the Added Provisions Governing the Contract, U. T. is obligated to pay the difference in cost occasioned by the rejection of a subcontractor whether such rejection be reasonable or unreasonable, . . . ” The University’s decision to reject All-Temp, required McCally to make a change from All-Temp to B & B. The cost to McCally for such change was $166,000.00.

The University contends that Article 3, § 44 of the State Constitution, Vernon’s Ann.St., prohibits the payment of this sum of money to McKee and McCally. Appellees contend that under Rule 94, T. R.C.P., the University was required to plead this constitutional provision as an affirmative defense. No such affirmative defense was pleaded by the University. The appellees contend such defense is waived. Article 3, § 44 of the State Constitution is as follows:

“The Legislature shall provide by law for the compensation of all officers, servants, agents and public contractors, not provided for in this Constitution, but shall not grant extra compensation to any officer, agent, servant, or public contractors, after such public service shall have been performed or contract entered into, for the performance of the same; nor grant, by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law; nor employ any one in the name of the State, unless authorized by pre-existing law.”

In City of South Houston v. Sears, 488 S.W.2d 169 (Tex.Civ.App.—Houston (14th Dist.) 1972, no writ), the court said:

“It is true that Rule 94, Tex.R.Civ.P., does not specifically mention ‘unconstitutionality’ as an affirmative defense, but it is also true that the list of affirmative defenses is not limited to those expressly enumerated therein. It also includes ‘. . . any other matter constituting an avoidance or affirmative defense.’ As with illegality, there is no indication on the face of plaintiff’s petition of any unconstitutionality. Unconstitutionality, as here argued, is asserted to avoid liability and as a defense to the contract. Though not expressly elaborating on this point the opinion of the Texas Supreme Court in State v. Scott, 460 S.W.2d 103, 107 (Tex.Sup.1970), cert. denied, 402 U.S. 1012, 91 S.Ct. 2188, 29 L.Ed.2d 435 (1971), gives support to' the conclusion that unconstitutionality is an affirmative defense within the meaning of the rule.”

In Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738 (1928), the court in discussing section 44 of Article 3 of the State Constitution and other provisions of the Constitution said:

“Without discussing in detail these provisions of the Constitution, it is sufficient to say each of them is intended to prevent the application of public funds to private purposes; in other words, to prevent the gratuitous grant of such funds to any individual, corporation, or purpose whatsoever.”

Even if this defense had been properly pleaded by the University, it would not constitute a bar to appellees’ recovery because no gratuity is involved in this controversy.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    TEXAS WOMAN’S UNIVERSITY, Appellant, v. Vanida CHAYKLINTASTE et al., Appellees.
    No. 17589.
    Court of Civil Appeals of Texas, Fort Worth.
    March 14, 1975.
    Rehearing Denied April 18, 1975.
    John L. Hill, Atty. Gen. of Tex., and William C. Bednar, Jr., Asst. Atty. Gen., Austin, for appellant.
    Michael J. Whitten, Denton, for appel-lees.
   MASSEY, Chief Justice.

QUESTION: On constitutionality; Is that regulation of the state supported educational institution constitutional or unconstitutional which provides that a classification of female students must reside on the campus premises but (through omission of any provision in the regulation) does not make like provision as applied to male students who would, but for the sexual distinction, fall within the same student classification?

ANSWER: The regulation is unconstitutional.

OPINION

By way of preliminary remark it is to be observed as was anticipated that our courts are about to embark upon tasks like unto that made necessary by the litigation over racial discrimination. Hopefully it will be neither as extended nor as bitter.

Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938), reviewed antecedent cases, including one occasioning its prior statement relative to minority requirement for sleeping car facilities on railroads in which it had written: “Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor; but, if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused.” The court stated that where any person suffers by such denial it would be because his constitutional privilege had been invaded.

Allred v. Heaton, 336 S.W.2d 251 (Waco, Tex.Civ.App., 1960, writ ref., n. r. e.), certiorari refused at 364 U.S. 517, 81 S.Ct. 293, 5 L.Ed.2d 265, reh. den. 364 U.S. 944, 81 S.Ct. 459, 5 L.Ed.2d 375, was the case where a woman first applied for admission as a student at the Agricultural and Mechanical College of Texas for men (Texas A. & M.). Therein the court wrote On Motions for Rehearing, as follows: “But in view of the decision of our United States Supreme Court in Gaines v. Canada, supra, we feel it is our duty to say that in the event that Miss Allred makes application for admission to A. & M. College . . . that she should be permitted to do so, and not be excluded solely on the ground that she is a member of the female sex.”

We may take judicial notice that subsequent the decision in Allred v. Heaton, supra, state supported colleges and universities of Texas were opened for attendance, as students, to both sexes.

Enacted, to become effective November 7, 1972 was the Amendment to the Constitution of the State of Texas as Section 3a to Article 1, Vernon’s Ann.St., “Equality under the law”, reading: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.”

The constitutional question arisen in the instant case is not because of the admission or denial of admission of a student or student-group to a state supported institution of higher learning because of sex, but rather because of the denial — because of sex — of some right or privilege to a student or student-group already admitted; and, further by way of clarification, because— by parietal rule or regulation — of the denial of right or privilege to a student or student-group (carved from a part of the sexual group which comprises the greater majority of students) to live in off-campus housing, while at the same time permitting such privilege to other students because there was a difference in their sex.

The rule was not and would not have become discriminatory except for the admission of men, the minority group, as students at Texas Woman’s University. Just as Texas A. & M. began to admit female students to that all-male institution of learning a very few years ago, the Texas Woman’s University, an all-female institution of learning, began to admit male students.

Through a substantial expenditure, with accompanying indebtedness assumed, Texas Woman’s University had theretofore constructed adequate facilities to house its female students. It obviously did not anticipate necessity to provide housing for any male students. In any event it did not construct any housing to accommodate them. Rather obvious from the record is the fact that it either does not now have the space or the money to provide for an all-male housing and that it seeks to preserve such housing as heretofore provided for female students exclusively.

However, under the law as quoted from Missouri ex rel. Gaines v. Canada, supra, Texas Woman’s University is foreclosed from acting in the exercise of good business judgment in the interest of the State of Texas or its own unit. Having provided housing facilities for women it is unconstitutionally discriminating against its male students when it does not provide substantially equivalent and equal housing facilities for men.

And, as a necessary corollary, it is unconstitutionally discriminating against its female students when it permits male students to live in off-campus private housing facilities, but by its parietal rule denies its female students the same right or privilege. It is in this that there is invasion and denial of the constitutional privilege possessed by members of the class of persons bringing suit in the instant case.

Their right to maintain the suit was born in the action, or threatened action disciplinary or punitive in nature, taken against one or more members of the class, specifically a female student who had moved off-campus and into private housing while continuing to attend classes.

The judgment from which the appeal was taken granted injunctive relief. In the judgment the trial court incorporated a great many findings of fact, some of which counsel for Texas Woman’s University has treated as having constituted a necessary premise for the judgment. Of the factual findings incorporated into the judgment only those relating to the sexual discrimination made in denial of the right to resort to off-campus housing facilities are necessary to upholding the judgment.

We quote in abbreviated form from the judgment: “IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Defendant’s Parietal rule, which requires every adult undergraduate woman student to live in a unit of the residential system, . . .be, and the same is hereby declared invalid, void, and unenforceable as prohibited by the Equal Protection Clause of the 14th Amendment, and by Article 1, Section 3 of the Texas Constitution.”

In order that it be made clear that we act upon all points of error presented we state that we hold that the Parietal Rule of Texas Woman’s University is not subject to attack as in conflict with provisions of Vernon’s Ann.Tex.St. Art. 5923b, “Rights, privileges and obligations of 18-year-olds.”

Articles of interest to the student include the following: 15 South Texas Law Journal (1974) 111, “Is the Texas Equal Rights Amendment The Answer”, by Joan Har-vill; 82 Harvard Law Review (1968-1969) 1065, “Developments in the Law: EQUAL PROTECTION”; 11 Houston Law Review (1973-1974) 136, “An Overview of the Equal Rights Amendment in Texas.”

Judgment is affirmed.


author: SPURLOCK, Justice.

text:
    Jimmy DAVIS, Appellant, v. Diane DAVIS, Appellee.
    No. 17604.
    Court of Civil Appeals of Texas, Fort Worth.
    March 28, 1975.

      Price, Fisher, Patton & McLemore and Jack N. Price, Longview, for appellant.
    Lonnie H. Robin, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal by writ of error from a divorce - judgment in Tarrant County, Texas, dissolving the marriage of Diane Davis, plaintiff, and Jimmy Davis, defendant, awarding custody of the couple’s three minor children to plaintiff and child support to be paid by defendant within 60 days after his release from the Federal Penitentiary in Leavenworth, Kansas.

Defendant contends that this case should be reversed because he was not present, did not participate in the trial, did not receive a notice of the petition of the divorce, and was not aware of the action until it was concluded.

By the second point of error defendant claims error because the Tarrant County divorce is a nullity because this marriage had heretofore been dissolved by judgment in a Gregg County, Texas, suit.

Each of these points are overruled.

The divorce proceedings were regular on their face. The petition contained all the allegations required by law. After the divorce petition was filed a citation was issued, regular on its face. The return thereon was made by a deputy sheriff of Leavenworth, Kansas, reciting that the defendant was served on December 18, 1973, by delivering to the defendant personally a true copy of the citation together with the accompanying copy of plaintiff’s original petition, having first indorsed on same the date of delivery. This return was made under oath and filed with the court papers where the divorce suit was pending. No answer was filed and on February 27, 1974, some 71 days after service was had on defendant, the case was heard, resulting in a divorce containing the provisions above described. This judgment is regular on its face.

Thereafter, by undated letter bearing no file mark the defendant wrote the presiding judge advising him that these parties were divorced in 1965 and he had already paid for the divorce once and at the time of the divorce there were no children.

Thereafter, by instrument filed June 3, 1974, defendant’s counsel filed “Application For Order to Expunge Decree of Divorce,” alleging facts similar to that contained in the letter.

Thereafter, on August 12, 1974, the defendant filed in the present case a certified copy of a judgment rendered in Gregg County, Texas, dissolving a marriage between these same parties, which judgment shows that said cause came on for trial on March 26, 1965, that a divorce was granted, there were no children or community property, and concludes as “Signed and entered this 7 day of October, 1974.” The form of the judgment is not that of a nunc pro tunc judgment. The docket sheet from Gregg County shows that the divorce was granted on March 26, 1965, and judgment “nunc pro tunc” was signed and entered on October 7, 1974.

The appellee, in her brief, states that shortly after the divorce was granted in 1965 the parties continued their marriage relationship. The parties each admit that they again remarried each other by a ceremonial marriage after the 1965 divorce.

No statement of facts is before this Court.

The first point attacks the service of citation upon defendant and therefore raises the point of whether or not the court had jurisdiction over the defendant. This point is supported only by the unsworn, undated, letter addressed to the judge of the court.

“The law appears to be settled that when the sheriff’s return on a citation is regular on its face and recites due service, it may not be impeached by the uncorroborated testimony of the party or parties shown by the return to have been served. Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908; Harrison v. Sharpe, Tex.Civ.App., 210 S.W. 731, error ref. However, it is not required that the evidence offered to impeach be direct. It may be wholly circumstantial. Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206. Such corroborating facts and circumstances, though, must come from a source other than one witness who would attack the service. Gatlin v. Dibrell, supra; Harrison v. Sharpe, supra; Randall v. Collins, 58 Tex. 231; Joseph v. Kiber, Tex.Civ.App., 260 S.W. 269; San Antonio Paper Co. v. Morgan, Tex.Civ.App., 53 S.W.2d 651, error dism; Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442.” Cortimiglia v. Miller, 326 S.W.2d 278 (Houston Civ.App., 1959, no writ hist.)

The general rule is stated in 46 Tex.Jur.2d 417, “Process and Notices,” Sec. 89, “Weight and sufficiency of evidence,” p. 418; “ . . . When an officer has executed process, and made his return showing when, where, and how he executed it, and has signed his return officially, the return has the sanction and support of the official oath. When the return is attacked there must be something more than an oath against an oath.

“ . . . There should be at least two witnesses or one witness with strong corroborative facts and circumstances proceeding from a source other than the witness. But the corroborating evidence is not required to be direct and positive; it may be circumstantial.”

Service was proper. The court had acquired jurisdiction over the defendant at the time of rendition of the judgment. The defendant did not meet the burden of proof imposed upon him by law to show lack of proper service.

This point is overruled.

The defendant by his second point claims that the judgment in the present case is now a nullity because their marriage had heretofore been dissolved in Gregg County, Texas.

Rule 376, Texas Rules of Civil Procedure, prescribes what a transcript shall contain. This rule does not provide for the filing of evidence in the court papers of the district clerk’s office and thus having such evidence appear in the transcript for consideration by the appellate court in lieu of filing a statement of facts.

“ . . . a transcript of papers filed in a district court other than that from which the appeal is taken is not properly part of the transcript in the case.” 4 Tex.Jur.2d, Part 1, page 290, Sec. 438. To the same effect see Red Gin Co. v. Allen-Morrow Co., 52 S.W.2d 294 (Waco Civ.App., 1932, no writ hist.); and Pridgen v. Denson, 220 S.W.2d 194 (Austin Civ.App., 1949, writ dism.).

In the absence of a statement of facts it will be presumed that the evidence was sufficient and that every fact necessary to support the findings and judgment within the scope of the pleadings was provided at the trial. Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex.Sup., 1965).

Ordinarily, in the absence of a statement of facts an appellate court can consider only fundamental error. There is no fundamental error in this case.

We find that such evidence from the Gregg County Clerk’s office, not admitted in evidence in the trial of this cause but simply filed along with the court papers after the divorce had been granted and entered in this cause, cannot be considered by this Court.

We overrule this point.

Judgment of the trial court is affirmed.


text:
    Harold William SCHWEITZER, Appellant, v. STANDARD COFFEE SERVICE COMPANY et al., Appellees.
    No. 4784.
    Court of Civil Appeals of Texas, Eastland.
    March 21, 1975.
    Jay M. Goltz, Dallas, for appellant.
    Craig M. Fowler, Tabor & Fowler, Irving, for appellee.
   WALTER, Justice.

Standard Coffee Service Company recovered an interlocutory default judgment against Frank E. Enyart. Standard’s cause of action against Enyart alleged that he was a salesman for the company selling coffee supplies to Standard’s customers; that Standard reposed trust and confidence in Enyart and permitted him to keep records of the amount of coffee merchandise and supplies received by him and sold to Standard’s customers; that Enyart kept an account of the money he received from the sale of said coffee supplies; that it made an audit of Enyart’s account on March 9, 1973, and that Enyart had a shortage of $1,889.44. Standard further alleges that when Enyart terminated his employment with the company he was presented with an inventory and audit sheet showing such shortage of $1,889.44.

The interlocutory default judgment provided :

. . and it appearing to the Court that Plaintiff’s suit is based on account of coffee supplies of Plaintiff’s business and money collected from Plaintiff’s customers, and it appearing to the Court that Plaintiff is entitled to the following Interlocutory Judgment;”

Thereafter, in a nonjury trial, the interlocutory judgment was made final and in said final judgment Standard Coffee recovered a judgment against Harold William Schweitzer for $1,000.00. Schweitzer had signed Enyart’s employee bond for a $1,000.00, dated February 6, 1972, which provided, in effect, that if Enyart checked up short on money, merchandise or equipment, Schweitzer would pay the shortage up to a $1,000.00.

Schweitzer has appealed and contends; “The obligee failed to prove the basis of the principal’s liability and that such liability was within the undertaking of the surety.”

After Standard’s witness, Powell, testified that Enyart was indebted to the company in the amount of $1,889.44, the appellant objected, and the court said:

“THE COURT: I'm going to overrule the objection, because the docket sheet in this Court reflect that on September 7, 1973, that an interlocutory default judgment was entered against Defendant Enyart for Eighteen Eighty-Nine Forty-Four, plus attorney’s fees, interest, and costs.”

The admissible testimony of Mr. Powell constitutes some evidence of the liability of Enyart to the Company for such shortage.

In Reliance Insurance Company v. Parks, 430 S.W.2d 950 (Tex.Civ.App.—Amarillo 1968, writ ref. n. r. e.), the court said:

“ . . . the basis of appellant’s obligation is the bond itself. When the principal’s acts have been judiciously found to have been a violation of the Act and such acts have caused damages or injury as determined by a prior final judgment, the liability of the surety becomes fixed. The final judgment against the principal fixes the liability of the surety. Lawyers Surety Corporation v. LaDue (Tex.Civ.App.) 358 S.W.2d 714.”

We hold that the interlocutory default judgment against Enyart was properly considered by the court.

Appellant also complains about the admission in evidence of xerox copies of the employment contract and the bond. Standard’s witness, Mr. Powell, testified that he identified Plaintiff’s Exhibit No. 2 as a copy of the employee’s bond and that he had the original. After receiving this evidence Standard’s attorney said:

“I’m going to offer the original and request to substitute copies so we can obtain the original for a copy.”

Article 3731c of Vernon’s Ann.Civ.Stat. provides as follows:

“Any copy or reproduction of a writing or written instrument, by photographic, photostatic, microfilm or other processes which accurately reproduces or forms a durable medium for reproducing the originals of any such writing or written instrument, can be used and its use shall be permitted in any judicial or administrative proceeding or trial, including the taking of depositions, where the party using the same, at the time of its offer in evidence either produces the original or reasonably accounts for its absence, or where there is no bona fide dispute as to its being an accurate reproduction of the original. This Act shall be cumulative of any other statutory or common law relating to the subject hereof.”

There is no bona fide dispute on the question of whether the copy of the bond is an accurate reproduction of the original. From Powell’s testimony relating to the original, we can say he has properly accounted for the original under the statute. We hold that the court properly admitted the xerox copies of said instruments under the evidence in this case.

We have examined all of appellant’s points and find no merit in them. They are overruled. The judgment is affirmed.


author: McCLOUD, Chief Justice.

text:
    Jimmie C. JOHNSON, Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY, Appellee.
    No. 4761.
    Court of Civil Appeals of Texas, Eastland.
    April 4, 1975.
    Rehearing Denied May 2, 1975.

      Jess N. Turner, III, Jennings, Montgomery & Dies, Graham, for appellant.
    J. M. Lee, McMahon, Smart, Wilson, Camp, Lee & Surovik, Abilene, for appel-lee.
   McCLOUD, Chief Justice.

This is a venue case. Plaintiff, Jimmie C. Johnson, sued defendant, Commercial Standard Insurance Company, alleging defendant breached its insurance contract by refusing to pay plaintiff for damages to plaintiff’s truck under the collision or upset provision of an insurance policy issued by defendant to plaintiff. The trial court granted defendant’s plea of privilege and transferred the cause to Tarrant County. Plaintiff has appealed. We reverse and render;

Plaintiff contends venue is proper in Throckmorton County under Subdivision 23 of Article 1995, Vernon’s Ann.Tex.Civ. Stat., which provides in part:

“Suits against a private corporation, . . . may be brought ... in the county in which the cause of action or part thereof arose.”

In order to establish a “cause of action” under Subdivision 23 plaintiff had the burden of proving not only the making of the contract but also its breach. Employers Casualty Company v. Clark, 491 S.W.2d 661 (Tex.1973).

Defendant contends plaintiff failed to prove a breach of the contract. We disagree.

The evidence conclusively establishes venue in Throckmorton County under Subdivision 23 unless defendant can rely upon a limitation of liability contained in the policy. The evidence shows that plaintiff’s truck was damaged in Montana. Defendant contends that endorsement 111C provides that no coverage is afforded for loss sustained outside a fifty mile radius of the place where the vehicle is principally garaged. Defendant argues the endorsement is an integral part of the policy and since the truck was damaged in Montana defendant is under no obligation to make any payment to plaintiff under the policy.

The endorsement urged by defendant is clearly a limitation of general liability under the policy. In an amended original answer filed “subject to its plea of privilege” defendant for the first time specifically alleged that coverage was excluded because of the endorsement.

We hold that the limitation from liability relied upon by defendant was not material at the plea of privilege hearing. This court in Mutual Fire & Automobile Ins. Co. v. Kirkman, 231 S.W.2d 459 (Tex.Civ.App.—Eastland 1950, no writ), said:

“The applicability of the exception from liability, because the mortgage was not described in the policy, was not material on a hearing of the plea of privilege. Although appellant was required to allege and prove a cause of action and that said cause arose, at least, in part in Brown County, the applicability of this exception from liability under the policy was not a venue issue. Appellee alleged and proved issuance of a policy on his tractor insuring him against loss by fire and that the tractor was destroyed by fire in Brown County. R.C.P. 94 provides that the burden of alleging an exception from liability in a suit on an insurance policy is upon the insurer. It provides that the insurer shall not be permitted to raise such an issue unless it specifically alleges that the loss was due to a risk or cause coming within such particular exception to general liability. Until an insurer has so alleged the insured does not now have the burden of proving the inapplicability of such an exception from liability in the policy because of waiver of such provision, estop-pel to assert such a defense, or for any other reason.”

See also Employers Casualty Company v. West, 383 S.W.2d 251 (Tex.Civ.App.—, Amarillo 1964, writ dism.).

Defendant’s amended answer filed subject to its plea of privilege wherein it specifically alleged the limitation was not a part of the pleadings before the court at the plea of privilege hearing. Galloway v. Nichols, 269 S.W.2d 850 (Tex.Civ.App.— Dallas 1954, no writ).

The judgment of the trial court is re versed and rendered.


author: TURNAGE, Judge.

text:
    STATE of Missouri, Respondent, v. Edward McLALLEN, Appellant.
    No. KCD 27005.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Donald C. Cheever, Marshfield, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant appeals from multiple sentences assessed by the court following his conviction by a jury. The court found defendant was subject to the second offender act and sentenced defendant to a term totaling thirty years on one count of stealing, two counts of burglary and stealing, and one count of attempted burglary.

The evidence would justify the jury in finding that on January 17, 1972, John Coe was the owner of the Lincoln Hardware Store in Lincoln, Missouri. At about 2:00 A.M. on that day, Mr. Coe was awakened in the bedroom of his home by a sound coming over a loud speaker installed therein to pick up any sound emanating from the vicinity of the front door of his store. On determining that such sounds indicated someone was trying to break into his store, Mr. Coe arose and drove the few blocks to his store. He did not turn his car lights on until he was close enough to his store to observe two men prying at the front door trying to gain entrance. At this point Mr. Coe turned his car lights on which illuminated the front door and the two men, who promptly fled on foot. Mr. Coe was not able to make any identification of the men although he did give the officers a clothing description. Shortly after the men fled, Mr. Coe heard an automobile being driven out of town at a high rate of speed. Mr. Coe reported the incident to law enforcement officials. Shortly thereafter, Mr. Coe’s wife, who was still at their home, heard their pickup truck being started and looked out in time to see it being driven out of their driveway. She notified her husband, who in turn again notified the officials.

About 3:00 A.M. two officers of the Se-daba, Missouri Police Force were cruising when they saw a pickup truck, matching the description given of the Coe truck, stopped at an intersection. The officers stopped and obtained a full facial view of the driver when he turned to look directly into the headlights of the police car. The pickup truck proceeded, with the officers following, and very shortly thereafter the officers signaled the truck to stop. After the truck stopped, the officers were in the process of getting out of their car when the truck suddenly started again. The officers gave chase and the truck went a short distance and then left the street proceeding through residential yards, eventually coming to a stop against a fence. The officers saw the driver run from the car. The officers in the meantime had radioed for assistance and another car arrived and defendant was arrested by the other officers a short time later. He was thereafter identified by the first officers who had spotted him as being the person who was driving the truck when they first observed it.

Defendant was thereafter taken to the Sedalia Police Department where he was booked and the contents of his pockets were taken and inventoried. Among these contents were a quarter with the rim completely hammered so that it resembled a small racing tire, and some coins bearing the legend “play penny”. These coins were later identified by Mr. Atwood as having been at the Atwood & Henry Store in Lincoln, Missouri, immediately prior to the breakin. Defendant was also wearing a coat matching the description given by Mr. Coe of the men at the front door of his store.

In the meantime, police officers discovered that the Atwood & Henry Store and the MFA Store had been broken into and considerable merchandise had been stacked near the front door. The front door of the Lincoln Hardware Store bore evidence of having been pried upon in an effort to gain entry. These three stores were within close proximity and the breakins occurred at about the same time and showed the same mode of operation.

It was later determined a quantity of coins and a cap were taken from the Atwood & Henry Store and six knives were taken from the MFA Store. Defendant’s plan, of course, was to get the car and he and his companion would then have the other merchandise by the front doors of the respective stores ready to load into the car.

The next day the sheriff and prosecuting attorney of Benton County went to Sedalia to talk with the defendant. After reading the defendant the Miranda warning, the defendant signed a written waiver of his right to remain silent and to have counsel. The sheriff stated the defendant told them he understood his right to remain silent. The sheriff testified in a pre-trial hearing on a motion to suppress the statement given on that occasion, that the prosecuting attorney had told the defendant several times it would be the best thing for him to make and sign a statement. The defendant gave a statement in which he admitted leaving Kansas City with an unnamed friend for the purpose of going to Lincoln to commit several burglaries. The defendant stated they had broken into the Atwood & Henry Store, the MFA Store, and were in the process of trying to break into the Lincoln Hardware Store when Mr. Coe arrived. The defendant stated while he and his friend were running to their car in order to make their escape, he slipped and fell and his friend reached the car and was able to leave town. The defendant thereafter saw Mr. Coe’s pickup truck in the driveway and found the keys in it, and made his escape by taking the truck, only to be apprehended later in Sedalia. Though the statement was typed, defendant refused to sign it. The court excluded the written statement, but permitted the sheriff to state what defendant said.

Defendant contends his statement given to the sheriff and prosecuting attorney was involuntary as a matter of law. He bases this primarily upon the statement by the prosecutor that it would be best for him to give the statement and it was the best thing for him to do. During the trial, defendant’s counsel, who is not the counsel on this appeal, objected to the introduction of the statement on the basis that there were promises and there was a hint of leniency. However, the sheriff denied any threat or any promise of leniency and the only evidence concerning the statements made to the defendant, including that adduced from the testimony of the defendant himself, was the statement of the prosecutor set out above.

It was held in State v. Hester, 425 S.W.2d 110, 114 (Mo.1968): “[wjhen there is no substantial evidence of coercion or duress or of promises of leniency or reward, a confession must be deemed voluntary”. It will be noted the defendant does not raise any question of lack of warning of his right to remain silent or to have counsel, but his only complaint is aimed at the statement of the prosecutor. This does not constitute evidence of either coercion, duress, or promise of leniency or reward. The defendant argues both that it constitutes a threat and a promise of leniency, which perhaps is the best illustration of the nebulous nature of the prosecutor’s statement. It is interesting to note the statement of the prosecutor in State v. Hunter, 456 S.W.2d 314 (Mo.1970) in which the prosecutor said “it is possible, very possible, that they would consider a lesser charge”. The court said the statement was ambiguous and subject to interpretation. The statement in this case is much more obscure than in Hunter, and if the statement there was uncertain, then the statement here was certainly not capable of conveying either promise or threat.

Since the statement by the prosecutor here did not constitute either a threat or a promise, such statement did not constitute substantial evidence of either so as to render the confession involuntary.

In addition, the defendant makes some complaint that he was sick and sore and did not have his glasses at the time he signed the waiver. There was no evidence produced to show the defendant did not understand his rights and did not intelligently waive them, nor was there any evidence of any physical infirmity which interfered with the defendant knowingly and intelligently waiving his right to remain silent. Nor was there any evidence to show defendant could not read the waiver form. In this circumstance there was no error in admitting defendant’s statement. State v. Glenn, 429 S.W.2d 225 (Mo. banc 1968).

Defendant complains of the failure of the trial court to submit the issue of the voluntariness of defendant’s statement to the jury. The defendant did not request any instruction submitting this issue to the jury. It is well settled in this State that an instruction on the voluntary character of a confession is a collateral issue and is not required as a part of the law of the case. When a defendant fails to submit an instruction on this issue, he cannot complain of failure of the court to give one. State v. Francies, 295 S.W.2d 8 (Mo.1956).

Defendant also complains of the admission of testimony by Deputy Sheriff Guyman concerning a statement the defendant made to him that he took the coins from the store. This statement was made the day following the statement defendant made to the sheriff and followed three separate warnings to defendant of his right to remain silent. These warnings were given first at the time of his arrest, second by the sheriff, and third by Deputy Guyman. The statement to Deputy Guyman followed by a short time the giving of the Miranda warning by the deputy.

In Miller v. United States, 396 F.2d 492 (8th Cir.1968), it was held that a confession is not necessarily invalid because the Miranda warning is not repeated in full each time the interrogation process is resumed after an interruption. Here, such warnings having been given the defendant on three prior occasions within a space of about twenty-four hours, it cannot be said defendant was not fully aware of his right to remain silent or that he did not knowingly and voluntarily give a statement. For this reason the testimony of the deputy sheriff was admissible.

Having held the statement to have been voluntary and admissible, this disposes of defendant’s contention that the evidence was insufficient to support the verdict without the use of defendant’s statement.

The defendant has filed a pro se brief in which he complains of the amendment of the information; the failure of the court to require the jury to find the value of the property stolen in each store to be over $50.00; and his denial to a fair trial by the prosecutor knowingly using perjured testimony.

The amendment of the information consisted only of adding the name of one person who was said to be a co-owner of the property taken and a technical change in the title of the MFA Store. This did not alter in any way the charge being made or defendant’s defense to it. The amendment was, therefore, properly allowed. State v. Taylor, 375 S.W.2d 58 (Mo.1964). Under § 560.110 RSMo 1969, V.A.M.S., there was no necessity to submit the value of the property stolen when the charge of stealing was submitted jointly with the charge of burglary.

There was no evidence of the use of any perjured testimony. Defendant claims the sheriff committed perjury by testifying in the trial contrary to his testimony at the pre-trial hearing to suppress defendant’s statement. An examination of the testimony does not reveal any difference, and defendant’s counsel was furnished a transcript of the pre-trial hearing and fully cross-examined the sheriff concerning his pre-trial testimony. There is certainly no showing of any perjury in this record.

Finding no error, the judgment is affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    R. L. S., Appellant, v. J. E. S., Respondent.
    No. KCD 27305.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Robert Beaird, Kansas City, for appellant.
    Douglas H. Delsemme, Knipmeyer, Mc-Cann, Fish & Smith, Kansas City, for respondent.
    Before WASSERSTROM, P. J.. and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

In 1971, the plaintiff husband was awarded a divorce and the custody of three minor sons. On the same day another couple became divorced, with the defendant wife being awarded the custody of the one son born of that marriage. Thereafter, the plaintiff in this case married the defendant in the other case, and the defendant here married the plaintiff in the other case. This new alignment of spouses gave the plaintiff here and his new wife custody of all four children, while the defendant and her new husband had none.

In 1973, the defendant wife filed in this case a motion to modify the divorce decree by changing the custody of all three of her sons to her. After an evidentiary hearing, the trial court entered an order changing the custody of the two youngest children to defendant. Promptly thereafter plaintiff filed a motion to reopen the proceeding; and upon a renewed hearing, he introduced evidence showing that the youngest son suffered from a learning disability and would incur serious emotional disturbances if uprooted from his established environment. In view of this new evidence, the trial court modified the previous order by awarding to the wife custody of the two oldest sons.

The husband appeals on the single ground that defendant failed to present sufficient evidence to authorize any change in custody. This contention requires a review, of the evidence as to the events which followed the two divorces and the subsequent exchange of spouses.

In 1972, plaintiff and his new wife moved with all four children to Tulsa, Oklahoma. On May 24, 1972, all four of the parents entered into a stipulation, approved by a court order, agreeing that this move might be made and that defendant and her new husband would have visitation rights one weekend per month and a two-week custody period in the summer. Defendant testified that she had encountered some problems with respect to visitation before the children moved to Tulsa, but her testimony indicated that these problems intensified after the removal. She testified that in attempting to visit the children in Oklahoma, she was not able to exercise visitation in accordance with the court’s order; that she was not allowed to pick up the children at plaintiff’s home; she was not able to see the children participate in any school activities at their school; that she had problems receiving reports on the children’s school progress and had trouble reaching them by telephone.

Defendant’s present husband corroborated the foregoing testimony. He testified that excuses were made that the children could not see defendant in Oklahoma and no alternative provisions were made for visitation.- He further testified that in the course of disputes over visitation rights, plaintiff had threatened him personally with physical harm. Plaintiff himself admitted having gotten angry several times, and he also admitted that defendant had not been permitted to pick up the children at plaintiff’s home. When asked by his counsel what his future conduct would be, plaintiff responded: “I’m glad we have got it out in the open. I understand it now.”

The evidence outlined justified the trial court in finding that there was a sufficient change of condition as to warrant a modification in the custody provisions. It clearly appears that plaintiff and his present wife followed a course of conduct which frustrated defendant in her efforts to be with her children pursuant to the visitation rights accorded by the decree. Numerous cases in this state have announced the rule of law that an interference by a parent with decretal rights of visitation by the other is a factor to be considered in determining the welfare of a child and that “interference with or deprivation of decre-tal rights constitutes a changed condition which may justify and require a modification.” P_ D_ v. C_ S_, 394 S.W.2d 437, 446 (Mo.App.1965) and cases cited therein; Lipsey v. Lipsey, 464 S.W.2d 529, 534 (Mo.App.1971) and cases cited therein; Green v. Perr, 238 S.W.2d 924 (Mo.App.1951).

In view of that rule of law, the judgment of the trial court here was not clearly erroneous. Therefore, under Rule 73.01(d), V.A.M.R., as it formerly specifically provided, the modification order here would have to be affirmed. The revision of Rule 73.01, which became effective January 1, 1975, does not change this result. The rule as revised eliminates the provision that “[t]he judgment shall not be set aside unless clearly erroneous”; but it still provides that appellate review of a court tried case shall be “as in suits of an equitable nature.” The nature of review in equity cases has historically demanded that due deference be given to the findings and conclusions of the trial chancellor, and that this rule of deference not be ignored “unless the evidence is palpably insufficient to sustain the findings.” Held v. Reis, 193 S.W.2d 17, 20 (Mo.1946); Mitchell v. McClelland, 306 S.W.2d 75, 79 (Mo.App.1957); Maas v. Dreckshage, 244 S.W.2d 397, 400 (Mo.App.1951). Under that standard, deference must be accorded to the trial judgment here.

Affirmed.

All concur.


author: SWOFFORD, Presiding Judge.

text:
    Doris E. CAGLE, Appellant, v. REGAL PLASTICS COMPANY, and Fireman’s Fund Insurance Company, Respondents.
    No. KCD 27273.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Patrick M. Keating, Kansas City, for appellant.
    Kenneth O. Smith, Knipmeyer, McCann, Fish & Smith, Kansas City, for respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

This is a workmen’s compensation case wherein the employee-claimant was awarded compensation for an injury to her right leg for six weeks temporary total disability at $70.00 per week, and an allowance of $150.00 for disfigurement, or a total award of $570.00 by the Referee, Division of Workmen’s Compensation. Upon review before the Industrial Commission, this award was affirmed. Upon appeal to the circuit court, the award was again affirmed and this appeal followed. Throughout this proceeding there was only one issue involving the merits, that being the nature and extent of appellant’s injury and disability.

However, the respondents filed in the circuit court their motion to dismiss the appeal upon the ground that the court had no jurisdiction for the reason that the claimant-appellant had not appealed the judgment of the Industrial Commission affirming the referee’s award within 30 days of the date thereof, as required by Section 287.490 RSMo 1969, V.A.M.S. The circuit court overruled this motion to dismiss. Respondents filed their motion to dismiss this appeal upon the same ground, and it was taken with the case.

Appellant, Doris Cagle, was injured on October 28, 19/1. Her Claim for Compensation was filed on February 14, 1972, which document shows her then address to be 405 So. Colorado, Kansas City, Missouri. On November 29, 1972, at the hearing before the Referee of the Division of Workmen’s Compensation, she testified that she then lived at 3531 East 6th Street, Kansas City, Missouri. The Referee’s award was made on December 19, 1972 and a timely Application for Review thereof was filed before the Industrial Commission of Missouri on January 4, 1973. On June 13, 1973, the review was heard before the full commission and its final award affirming the award of the Referee was entered September 10, 1973.

The record shows that on September 10, 1973, a certified letter, with return receipt requested, was mailed from Jefferson City, Missouri, postage prepaid, to “Doris E. Cagle, 405 South Colorado, Kansas City, Missouri” which contained the commission’s final award. This communication was not delivered to the claimant but was returned to the commission “unclaimed”. There is no claim made that the appellant ever received notice of this final award or knowledge that it had been entered until November, 1973, under circumstances hereinafter noted. Nevertheless, respondents strongly assert that the 30-day period of limitation for appeal to the circuit court as provided by Section 287.490 RSMo 1969, V.A.M.S., commenced to run on September 10, 1973, and that since the appellant did not take her appeal within that period, the commission’s award became final and conclusive and the circuit court and this court lack jurisdiction over the appeals. It is true that the courts of Missouri have frequently held that the procedural requirements of .the Workmen’s Compensation law relating to review and appeal are jurisdictional and require strict compliance from the parties. Graves v. O. F. Elliott, Inc., 355 Mo. 751, 197 S.W.2d 977, 979 (banc 1946); Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311, 313 [2] (Mo.App.1972); Luketich v. Krey Packing Company, 413 S.W.2d 29, 31 [1, 2] (Mo.App.1967).

It should be equally imperative that any administrative body, in this case the Industrial Commission, strictly comply with the procedural requirements imposed upon it under the law. Section 287.470 RSMo 1969, V.A.M.S., provides that after review, the commission “shall immediately send to the parties and the employer’s insurer a copy” of its award.

Section 287.520 RSMo 1969, V.A.M.S., provides:

“Notice — manner of serving.
Any notice required under this chapter shall be deemed to have been properly given and served when sent by registered or certified mail properly stamped and addressed to the person to whom given, at his last known address in time to reach him in due time to act thereon. * * * ” (Emphasis supplied)

The statutory obligation imposed upon the commission by these two statutes is unambiguous and clear. A copy of its final award was required to be "immediately” mailed to appellant by registered postpaid mail “at her last known address” in time for her to perfect her appeal to the circuit court within the 30 days as provided by Section 287.490.

The term “last known address” has been given judicial interpretation in the case of Brumbaugh v. Travelers Indemnity Company, 396 S.W.2d 740, 743 [7] (Mo.App.1965) where a policy of insurance provided for the mailing of cancellation notice to insured’s last known address. The court there said (1. c. 743):

“The plaintiff’s ‘last known address’ was that place where mail was most likely to reach her, and that would be her residence. * * * ”

Courts of other jurisdictions have also adopted this practical and common sense definition of such statutory terms. See: Glenn v. Holub, 36 F.Supp. 941 [Dist.Iowa 1941] (non resident motorist statute); MacKenzie v. D. C. Unemployment Compensation Board, 129 U.S.App.D.C. 258, 393 F.2d 659, 660 [1] [1968] (unemployment compensation law); Hendershot v. Ferkel, 74 Ohio App. 106, 57 N.E.2d 819, 821 [3] [1943] (non resident motorist statute); State ex rel. Cronkhite v. Belden, 193 Wis. 145, 211 N.W. 916, 920 [8], 57 A.L.R. 1218 [1927] (non resident motorist statute).

While at the time the appellant filed her notice of appeal to the circuit court, she was living at 301 Benton Boulevard, Kansas City, Missouri, there is nothing in the record to show when she moved to that address. She had testified under oath at the hearing before the Referee on November 29, 1972 that she lived at and her residence then was 3531 East 6th Street, Kansas City, Missouri and that certified record was before the commission when the final award was mailed to 405 South Colorado on September 10, 1973. So far as the commission’s record of her claim was concerned, her “last known address” was the 6th Street residence given in her sworn testimony. So far as this record is concerned, she may have still resided at the 6th Street address when the award was mailed or have left adequate forwarding information with the postal authorities.

The conclusion is inescapable that the underlying principle inherent in the terms of Sections 287.470 and 287.520 RSMo 1969, V.A.M.S., that the notice of the final award be reasonably calculated to reach her “in due time to act thereon” would be destroyed if the procedures followed by the commission is this case were held to be within the contemplation of those statutory mandates. Those procedures were not in compliance with the statutes and the respondents’ motion to dismiss in the circuit court was properly overruled and their motion to dismiss this appeal is hereby overruled.

The appellant’s first point on this appeal is that the referee, commission, and the circuit court erred in not ruling upon her Motion to Suppress the deposition of Dr. J. A. Nigro. The relevant facts decisive of this point may be briefly stated. The employer and insurer took the deposition of Dr. J. A. Nigro before the initial hearing. The doctor had suffered a heart attack before the hearing and was unable to appear and testify. On the day of the hearing the claimant filed her motion to suppress that deposition and the referee deferred any ruling on the motion until such deposition was offered in evidence. The deposition was not offered in evidence by either party and, as noted, Doctor Ni-gro did not testify. The questions raised by the motion therefore became moot and it does not appear how the appellant could possibly be prejudiced by the referee’s failure to rule on her motion to suppress. Likewise, in the hearing before the Industrial Commission or on appeal to the circuit court, the deposition was not offered by either party. This point is ruled against appellant.

A much more serious and perplexing problem is presented by appellant’s second point. She asserts that the court (commission) erred in not permitting her to reopen her case to submit additional and newly discovered evidence. As previously noted, the only issue in this case was the nature and extent of her injuries and resulting disabilities. The nature of her initial injuries were to her right leg between the ankle and knee. She was initially treated by doctors for her employer-insurer who thereafter discharged her to seek medical care from her own physician. She was paid compensation and medical expense for this period of temporary total disability in the amount of $2100.00 Upon her release by the company physician she came under the care of Doctor Nigro, was hospitalized and remained under his care until he became ill and was then attended by his associates. The basis of her motion to reopen her claim is that apparently she now suffers from chronic right leg phlebitis, cerebral and pulmonary insufficiency, possible small pulmonary emboli and psychoneurosis secondary to neuritis of the right leg. All of these conditions she asserts are related to and the result of her initial injury and have resulted in her total disability.

The final award of the commission made on September 10, 1973 with reference to the hearing before it on June 13, 1973 contains the following statement:

“It was at this point (following the incident with reference to the Nigro deposition) that employee, while her attorney stood in the doorway preparing to leave, returned to the counsel table and stated that she intended to file a motion to reopen the case even if her attorney was not of the same mind. The Commission feels that the employee has had ample time within which to file said motion if she intended to do so, therefore, the case is taken as submitted.”

As discussed above, she did not receive a copy of this final award, but did in fact file a pro se “Motion to Reopen Hearing” on November 14, 1973 to which was attached a statement of Dr. J. A. Nigro, dated October 12, 1973, making a diagnosis of the above-related conditions and a letter dated October 30, 1973, stating that in his opinion she was totally disabled.

On November 15, 1973, the commission acknowledged receipt of this motion and advised her that its final award had become conclusive in that she had not taken an appeal therefrom within 30 days under the provisions of Section 287.490 RSMo 1969, V.A.M.S.

Section 287.480 RSMo 1969, V.A.M.S., applicable to proceedings for review before the full commission, directs that it “shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue, their representatives and witnesses” and make its award.

Article III, Rule 12, of the Rules of Practice and Procedure and Interpretive Regulations of the Industrial Commission of Missouri Relating to Workmen’s Compensation, adopted by authority granted under Section 286.060(8) RSMo 1969, V. A.M.S., provides:

“Additional Evidence. After an application for review has been filed with the Commission, any interested party may file an application with the Commission for permission to submit additional evidence at a hearing before the full Commission or one of its members. The hearing of additional evidence by the Commission will not be granted except upon the ground of newly discovered evidence which could not with reasonable diligence have been produced at the hearing before the referee. The petition for authority to submit additional evidence must set out specifically and in detail:
(a) The nature and substance of the newly discovered evidence;
******
(e) Newly discovered medical evidence must be supported by a medical report signed by the doctor and attached to the petition, which report shall contain a synopsis of the doctor’s opinion and his reasons therefor and the reasons for not submitting same at the hearing before the referee;
******
The Commission will consider the application to submit additional evidence and answer, if any, of opposing parties, without oral argument of the parties, and enter an order either granting or denying the application. * * * The Commission is opposed, as a matter of policy, to the granting of the taking of additional testimony except when it considers that such action should be taken in the furtherance of justice. Therefore, all available evidence should be introduced at the hearing before the referee.”

While the appellant’s pro se Motion to Reopen Hearing is not drawn with the skill of an experienced legal scrivener, it substantially complies with the above-quoted rule. The record before this court shows that she filed and was granted leave to pursue her appeal to this court in forma pauperis-, that she appeared upon the docket of this court pro se and that on the day of argument this court granted permission for new counsel, Gary Eldredge, to enter his appearance on her behalf and to orally argue her appeal. Both of her attorneys in the original proceedings are no longer engaged in the practice of law. Her Motion to Reopen Hearing and the attached medical reports seem to raise a substantial question as to her present physical and mental condition and their relationship to the initial work-induced injury. From the conclusion here reached, that the commission’s final award of September 10, 1973 was not in fact a final and conclusive award, it is apparent that in the interest of the “furtherance of justice” her Motion to Reopen Hearing should be considered.

The law is clear that under the Workmen’s Compensation Act the decision as to whether appellant’s claim should be reopened for the receipt of additional evidence rests initially in the sound discretion of the commission and the exercise of such discretion will not be disturbed on appeal unless it is shown to be arbitrary or unreasonable. Waterman v. Chicago Bridge and Iron Works, 328 Mo. 688, 41 S.W.2d 575, 578 [10, 11] (1931); Lake v. Midwest Packing Company, 301 S.W.2d 834, 835 [2] (Mo.1957); Reece v. St. Joseph Lead Company, 465 S.W.2d 849, 852 [3] (Mo.App.1971).

For the reasons herein stated, the judgment of the circuit court is reversed and the cause is remanded to such court with directions to remand the cause to the Industrial Commission with directions to consider and rule upon appellant’s Motion to Reopen Hearing filed before such commission on November 14, 1973, and to take such further action in such proceedings consistent with this opinion.

All concur.


text:
    STATE of Missouri, Respondent, v. Leon PETTIS, Appellant.
    No. KCD 27104.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Ronald M. Sokol, Public Defender, Fifth Judicial Circuit of Mo., St. Joseph, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., PRIT-CHARD, C. J., and TURNAGE, J.
   TURNAGE, Judge.

Defendant was convicted by a jury of the armed robbery of Herman’s Drug Store in St. Joseph, Missouri, on September 28, 1972. The jury fixed his punishment at twelve years confinement and he appeals therefrom.

About 1:30 P.M. on the day of the robbery, four employees of Herman’s Drug Store were seated at tables eating lunch when two men entered. One was tall and one was short. The tall man proceeded to the rear of the drug store while the short man stayed near the soda fountain. The druggist went to the rear with the taller man who pulled a gun and announced a holdup. Meanwhile the shorter man drew a gun and pointed it at one of the employees at the soda fountain and also announced a holdup. Shortly after these two entered the store, a third man entered and assisted the first two in the holdup. Thereafter, three customers entered the store and as each entered they were taken to the rear of the store and, together with the four employees, were forced to lie on the floor and had their arms and ankles tied together. In the course of the holdup, one of the robbers took $85.00 to $90.00 from one of the customers which was held in a money clip in the shape of a dollar sign. A quantity of drugs was also taken from the store.

Within a few minutes after the robbers had left, the druggist succeeded in untying himself and immediately called the police. An alarm was broadcast over the police radio system stating that three black subjects had held up Herman’s Drug Store. Shortly thereafter the police dispatcher received a call from someone at Davis Home and Auto Supply who reported two subjects were running by that store in a direction away from Herman’s Drug Store, and they seemed to fit the description of the robbers. A description of the clothing being worn by these two men was also given, and giving a physical description, including long hair, together with the fact they were black.

Two detectives of the St. Joseph Police Department had received the first radio broadcast concerning a robbery at Herman’s and later received a second broadcast with the information given by the caller from the Davis Store. Shortly thereafter, these detectives saw two black men running in a direction away from Herman’s, one tall and the other short, with clothing which matched the description received in the second radio dispatch. At the time the detectives saw these men no more than four or five minutes had elapsed since the first message was heard concerning the robbery.

The detectives testified the men ran for about a block from the time they first saw them until they reached the Sears parking lot at which time they slowed down. This would place them about ten blocks from Herman’s. The detectives approached the two men and announced they were police officers, since they were wearing civilian clothing, and asked them for identification. The two men produced identification showing the short man to be the defendant. The detectives then told them they were under arrest for robbery. At about this time another police car with St. Joseph detectives arrived and a third black man was pointed out to one of these detectives as running in the same area and this detective gave chase. After a forty to fifty yard chase, the man stopped and was seen to throw something over a fence. This object was later found to be a firearm. The detectives patted the first two men down for weapons and finding none conducted no other search of them. All three men were thereupon taken to the St. Joseph Police Department where they were booked and at this time the contents of their pockets were removed and inventoried.

From the pocket of defendant was removed a money clip in the shape of a dollar sign containing approximately $85.00. Defendant was later identified, both before trial and in court, by those in the drug store at the time of the robbery as being the short man who stayed at the soda fountain holding a gun.

Defendant’s first complaint of error concerns the claim that the arrest was made without a warrant and probable cause, therefore, the subsequent search of the defendant at the police station was unauthorized, and the money, together with the clip, should not have been received in evidence. Defendant’s main contention concerns the lack of probable cause on the part of the detectives to place the defendant under arrest because of an insufficient basis to suspect the defendant as having been connected with the robbery. Defendant cites a number of cases holding items seized without a search warrant are inadmissible and that an illegal search or arrest cannot be justified by that which is discovered in the subsequent search.

Defendant’s pre-trial motion to suppress this evidence was overruled by the trial court after a hearing.

The essential question to be answered is whether or not the police officers had probable cause to arrest the defendant.

In State v. Dodson, 491 S.W.2d 334 (Mo. banc 1973) the court stated “[t]he existence of ‘probable cause’, justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved”.

Here the detectives had a description of the men seen running past the Davis Home and Auto Supply which coincided with the first broadcast as to physical size. The subsequent broadcast expanded on this description by giving a clothing description together with some physical characteristics. Thus, at the time the officers arrested defendant, they had both a general physical description and knowledge of the clothing being worn by the men seen running by the Davis Store. Based on the criteria set forth in Dodson, there was ample basis to give the officers probable cause to believe the defendant was one of the robbers and to stop him, place him under arrest, and to take him to the police station. '

Having placed the defendant under arrest upon probable cause, the removal of the money in the money clip from defendant at the police station was justified and, therefore, admissible. State v. Darabcsek, 412 S.W.2d 97 (Mo.1967).

Defendant next contends he was entitled to a “capital panel” because the punishment for armed robbery in § 560.135 RSMo 1969, V.A.M.S., is death or imprisonment for not less than five years. The State did not ask the death penalty. Defendant concedes, and justly so, that the law is against him on this point. It has been consistently held in this State beginning with State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079 (Mo.1931) that a “capital panel” is required only when the potential sentence is necessarily either death or life imprisonment. As held in State v. Morgan, 453 S.W.2d 932 (Mo.1970), when a “capital panel” is not impaneled, then the death sentence cannot be imposed by either the jury or the court and, therefore, the offense charged is not punishable by death. There was no error in refusing to provide a “capital panel”.

Defendant next complains of the selection of three additional talesmen after the original panel summoned was exhausted. Defendant complains these three were not summoned in the manner prescribed by statute. It is not necessary to decide whether or not the statutory method was strictly followed since it has been held that the sections detailing the method by which additional jurors are summoned is directory and unless the defendant shows that he has been prejudiced or his interests have been adversely affected by the failure to observe these statutory provisions, he is not entitled to any relief on this ground. State v. Thompson, 472 S.W.2d 351 (Mo.1971). Here defendant claims prejudice because the extra people summoned were retired people whose names were kept on a list to be summoned in the eventuality which occurred in this trial. He complains this deprived him of a reasonable cross section of the citizens of the county. Defendant does not demonstrate or state how this worked any prejudice to him and no prejudice is discernable. In State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642 (Mo.1937) a contention was made that the sheriff summoned two additional jurors who were former police officers. The court rejected the contention that they were “con-victers” and their selection as jurors prejudiced the defendant. Here the defendant does not make nearly as strong an argument as in Hamilton. Defendant does not make any claim or showing that any class of persons was systematically excluded from jury service and bases his only claim on the lack of a “cross section” of persons in the county. This point is ruled against the defendant.

Defendant next requests that the action of the trial court in stating to the jury at the beginning of the trial that Mr. Pettis was the colored gentleman sitting beside Mr. Sokol and was from Kansas City, be considered under the plain error rule. However, defendant, in his argument, does not attempt to explain how and in what manner this resulted in manifest injustice or a miscarriage of justice. In this circumstance it may not be considered under the plain error rule. State v. Maggitt, 517 S.W.2d 105 (Mo. banc 1974).

Defendant next complains that he was denied his right to a speedy trial. The robbery occurred in September, 1972, defendant had a preliminary hearing in February, 1973, and his trial was held on November 5, 1973. The record further shows that Mr. Sokol, the public defender representing the defendant, talked with the defendant about a trial date but Mr. Sokol advised the court the defendant had no desire to have a trial set until he expressed such desire on July 6, 1973. The record further shows the trial court was concerned with an early trial and made efforts to have the case set as soon as possible. It further shows that after the case was first set, the defendant filed a motion for continuance in September, 1973. In State v. Morris, 501 S.W.2d 39 (Mo.1973) the court quotes from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) concerning the factors to be considered in determining whether or not an accused has been denied a speedy trial. In Morris the court held a delay of sixteen months from the time the defendant was taken into custody until trial did not of itself show a denial of a speedy trial. The court pointed out in Barker the delay was more than sixty months.

In this case the defendant and his counsel were aware of the right they had to request the court to set defendant’s case for trial at any time, but until July, 1973, the defendant had no desire to have his case set. There is no showing in this case that defendant was denied a speedy trial, nor that the State in any way denied him this right.

Defendant further complains of a statement which the prosecuting attorney made in his opening argument. The statement of which complaint is made was:

“I have thought about this case a lot. I have worked with it for over a year. I have an opportunity at this time to make a recommendation, a statement to you of what I feel would be proper punishment when you return that verdict of guilty.”

Defendant urges this statement shows the prosecutor had private opinions and violates the rule that the argument must be limited to facts and evidence and must not intimate special knowledge possessed by the prosecutor of facts not in evidence. It is apparent from the argument the prosecutor did not violate either of these rules. It is well settled the prosecutor may recommend punishment and may even urge severe punishment so long as the defendant may respond. Here the prosecutor was simply advising the jury of his right to make a recommendation to them as to the punishment. This was certainly within the prerogative of the prosecutor and could not be the basis of any error. State v. Eaton, 504 S.W.2d 12 (Mo.1973).

Defendant next urges error in admitting a photograph taken at the police station with the drugs taken in the robbery sitting on a table and further showing the druggist and a police officer next to the table.

The record shows the photograph in question was marked “Exhibit 7”. The record further shows the trial court stated, “let the record show that Exhibits 2, 4, 5, 6 and 7 are admitted into evidence by stipulation”. The record does not show any objection or protest by the defendant to this statement of the trial court and it must, therefore, be taken that the defendant did stipulate to admission of this photograph in evidence. Having so stipulated, defendant may not now complain of its admission in evidence. State v. Atkins, 494 S.W.2d 317 (Mo.1973).

Defendant’s next point is the refusal of the trial court to admit in evidence a photograph of one Burks who had been charged in the same robbery as the defendant, and who had been tried in a separate trial and acquitted. Defendant had a picture of Burks and showed it to some of the State’s witnesses and brought out the fact the description of Burks, given by the witnesses previously, varied from the photograph taken of Burks at the jail on the day following the robbery. After using the photograph for this purpose, defendant offered it in evidence. The identification of Burks was a wholly collateral question in defendant’s trial since the question in this case was the identification of defendant Pettis as being one of the robbers. Defendant was positively identified by almost all of the State’s witnesses. The identification of Burks and the introduction of a photograph of him would have added nothing to the identification of Pet-tis and the question of whether or not Pet-tis was one of the persons involved in the robbery.

In State v. Miles, 412 S.W.2d 473 (Mo.1967), it was held not to be error to exclude offers of proof or evidence tending to impeach a witness on an immaterial or collateral matter. Defendant’s complaint falls within this rule and is overruled.

Defendant’s next complaint concerns the statement by the trial court made after the State had rested. The court stated:

“Ladies and gentlemen the State has rested its case, and I have been informed by the defendant that they do not desire to put any evidence on. So, that completes the evidence in the case.”

This point is ruled by the following statement made in State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972):

“This court has held in many cases that the rule and statute do not prohibit a reference to the failure of a defendant to offer evidence but only to the failure of the accused to testify.”

Here, the court clearly did not refer to the failure of the defendant to testify but simply advised the jury the defendant did not desire to put on any evidence. This statement was made clearly to explain to the jury that the evidence had been completed and there would be no further evidence and the court would proceed to ready the instructions for the final arguments and submission of the case to the jury. Clearly the court’s remarks do not violate the prohibition against comment on the failure of the defendant to testify. See also State v. Jenkins, 516 S.W.2d 522 (Mo.App.1974).

Defendant’s final complaint relates to the refusal of the trial court to give his proffered instruction “A”.

This instruction read:

“One of the issues in this case, on which the State has the burden of proof, is whether the defendant was present at the time and place the offense is alleged to have been committed. If all of the evidence or any lack of evidence in this case leaves in your mind a reasonable doubt regarding the defendant’s presence at the time and place the offense is alleged to have been committed, then you must find him not guilty.”

This instruction is identical, except for a sentence omitted therefrom, with the instruction offered in State v. Robinson, 507 S.W.2d 61 (Mo.App.1974). There, this court held such instruction to be the alibi instruction in the Pattern Criminal Instructions, now MAI-CR 3.20, and that such instruction should not be given unless there was evidence to support an alibi. In this case, the defendant did not offer any evidence and under the ruling in Robinson a refusal of this instruction was proper.

Finding no error, the judgment is affirmed.

All concur.