text:
    In re the MARRIAGE OF H. B., Respondent, and B. B., Appellant.
    No. KCD 29320.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.

      Marilyn M. Shapiro, Kansas City, for appellant.
    Michael W. Manners, Michael J. Albano, Independence, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

The trial court ordered dissolution of the marriage between the parties and awarded custody of the daughter, 2½ years old at the time of trial, to the husband. The wife appeals only as to the award of custody. Her Points on Appeal, greatly condensed, are that: 1) the trial court excluded the testimony of her expert witnesses, and 2) the award of custody was not supported by evidence and was against the weight of the evidence.

I.

The expert testimony sought to be introduced consisted of that of a clinical psychologist and his assistant. The wife argues that her mental and emotional stability had been put in issue by the husband and his witnesses and that therefore her mental health became a relevant issue under Sec. 452.375(5) RSMo Supp.1973. The point as to the admissibility of this expert testimony has not been properly preserved for appellate review.

The offer of proof was made at trial in the following form:

“Dr. Lucian Cordaro is a clinical psychologist. He would have testified to the fact that Mrs. B — exhibits good reality contact, is deeply concerned about retaining custody, has realistic sense of what the issues are and what would be required for continued custody; that as to maturity she neither denies nor tries to evade the fact that she has done some things in the past which were not in the best of judgment. However, she is earnest and consistent in attempting to repeat — in attempting to avoid these mistakes; that Mrs. B — ⅛ behavior, her personal conduct, did not suggest her to be an unfit parent; that Dr. Cordaro and the party who assisted on the report were convinced of her genuine concern for children and their best interest.
“As to the recommendations, Dr. Cor-daro and his assistant believed that Mrs. B — ⅛ emotional stability and capacity for parenthood were sufficient. It was their recommendation that in the absence of any evidence approaching child abuse that there would be no reason for changing custody.”

It will be observed that the proposed witnesses did not give their testimony in question and answer form, but instead the proposed testimony was merely summarized by counsel in her own words. That failed to measure up to the required procedure as stated in State v. Sullivan, 553 S.W.2d 510, l.c. 513 (Mo.App.1977): “It has long been the rule in this state that the proper procedure to present and preserve such an offer is to have the witnesses present; put them on the stand; propound the questions; and thus enable the trial court to intelligently rule upon, and an appellate court to review, the propriety and admissibility of the evidence sought to be elicited.”

Aside from that, and assuming that the husband and the trial judge waived strict compliance with the foregoing rule, still the rejection of the evidence in question cannot be considered prejudicial error. The wife’s claim that the husband interjected the issue of her mental health rests in major part upon the testimony of the social worker, Gwylyn Clawson, that the wife was “unstable.” The term “unstable” is sometimes used to describe a lack of mental health. That was the case in In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975), upon which the wife here heavily relies. However, the term was not used in that sense by witness Clawson. The husband’s attorney made it abundantly clear that Clawson’s testimony was not offered to attack the wife’s mental health. In this respect, the husband’s counsel stated on the record: “We have not called into question Mrs. B — ⅛ mental capacity.” This statement by counsel is substantiated by the definition given by Clawson in her testimony as to what she meant by the term “stability”:

“I guess maybe reliability would be a one-word definition of it. To have some — I can’t think of a better definition than reliability. Stability is to be where you are expected to be when you are expected to be there, to be consistent in your actions, to have a plan of life and to stick to it and not to make abrupt changes in important decisions just on the basis of the spur of the moment.”

Thus, the evidence offered by the husband here was not intended to and did not raise an issue as to the wife’s mental health. In the present case there was no issue of mental health as to which the expert testimony of a psychologist would be relevant.

Moreover, the proffered testimony to the extent that it was factual was accepted by the trial judge and it was only the recommendations summarized by counsel that the trial court found to be objectionable. In this respect the court ruled: “I think that I could accept the findings of fact that they made there. So far as the recommendations are concerned, that is for the Court and that invades the province of the Court. So far as their findings of fact are concerned, and so on, I don’t think that really controverts anything.” So, in effect, the proffered testimony was considered by the trial court to the extent that it was entitled to any consideration. See Rothwell v. Love, 241 S.W.2d 893[4] (Mo.1951).

II.

In discussing the sufficiency and weight of the evidence, the wife commences and attempts to anchor her argument throughout on the “tender year” presumption, under which a mother is deemed to be the one best able to care for a child of tender years, particularly if the child is a daughter. However, the wife in her brief correctly and commendably concedes that this presumption is only rebuttable, saying, “Appellant admits that this presumption is not conclusive and is at best rebuttable.” Consequently the issue of who should be granted custody must be decided, not as a matter of law upon a presumption, but as a factual matter upon all of the evidence.

The wife also seeks to establish a legal defect in the husband’s proof by contending that custody was awarded to her in June, 1976, and that no different award of custody should be made without a showing of a change of condition between June, 1976, and the time of trial in October, 1976. The major fallacy in this argument is that the custody award in June was merely a temporary order which was not even made upon the taking of evidence, as stated in the wife’s brief, at the June hearing “the parties stipulated to the appellant getting temporary custody.” In any event, the June order was not a “decree” within the meaning of Sec. 452.410 RSMo Supp.1973, which the wife erroneously contends to be applicable. Still further, even if it were necessary to show a change of condition between June and October, 1976, a sufficient change occurred by reason of the wife withholding custody beyond the length of time allowed, in defiance of the court’s June order. R. L. S. v. J. E. S., 522 S.W.2d 5, l.c. 6 (Mo.App.1975) and cases there cited.

A detailed recital and analysis of all the unpleasant evidence would have no precedential value and would serve no other useful purpose. The entire record has received meticulous study. After considering that evidence even in light of the skillful argument by the wife’s counsel which places that evidence on display to the wife’s greatest possible advantage, we cannot say that the trial court’s judgment is not supported by evidence nor conclude that it is against the weight of the evidence “with a firm belief that the decree or judgment is wrong.” Therefore and because we find no error of law, under Rule 73.01-3 and the dictate of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), the judgment of the trial court must be affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Phillip Andrew WHITE, Defendant-Appellant.
    No. KCD 29469.
    Missouri Court of Appeals, Kansas City District.
    Oct. 31, 1977.
    Phillip Andrew White, pro se.
    James G. Lauderdale, Lexington, for plaintiff-respondent.
    Before PRITCHARD, P. J.., SWOF-FORD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant appeals a conviction for speeding. A radar unit check of the defendant’s speed was the only evidence. Complained of is the failure to establish the accuracy of the instruments utilized to test the radar unit.

Only defendant has briefed the case. The Prosecutor has filed in this court a confession of error asking the reversal and remand of the case for a retrial, confessing the validity of the defendant’s claim. Controlling is City of Ballwin v. Collins, 534 S.W.2d 280 (Mo.App.1976). The facts as gleaned from this record are identical with the facts in Ballwin where a reversal of the judgment occurred.

Our failure to accept the confession of error offered by the Prosecuting Attorney is based upon defendant’s insistance that the reversal be outright and not by way of remand. In this case, the conventional rule requiring remand for new trial when it appears that the deficiency in the evidence may be supplied on retrial will be followed. State v. Brown, 542 S.W.2d 789 (Mo.App.1976); State v. McIntosh, 542 S.W.2d 363 (Mo.App.1976); State v. Sockel, 490 S.W.2d 336 (Mo.App.1973).

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

All concur.


author: BILLINGS, Chief Judge.

text:
    Milo LETSCH, Jr., et ux., Plaintiffs-Appellants, v. Alfred PICKWORTH et ux., Defendants-Respondents.
    No. 10447.
    Missouri Court of Appeals, Springfield District.
    Nov. 1, 1977.
    James L. Robinett, Jr., Springfield, for plaintiffs-appellants.
    No appearance for defendants-respondents.
   BILLINGS, Chief Judge.

Suit by plaintiffs-grantees for breach of covenant against encumbrances. In a bench trial judgment of $5,000 damages was entered against defendants-grantors. Plaintiffs appealed, claiming they are entitled to a larger award. We affirm.

In 1974 plaintiffs purchased a duplex dwelling from defendants. The duplex, built for two-family occupancy, was located on a lot which was restricted to a single family dwelling. Defendants conveyed the property by general warranty deed and expressly covenanted against encumbrances. In addition, the words “grant, bargain and sell” in the conveyance invoked the statutory covenant against encumbrances found in § 442.420, RSMo 1969.

The restrictive covenant and defendants’ breach of the covenant against encumbrances are not contested, the sole issue being the trial court’s determination of the damages plaintiffs are entitled to receive.

Our review of this court-tried case is governed by Rule 73.01, V.A.M.R., as delineated by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Consequently, in ruling plaintiffs’ contention, we are required to sustain the judgment unless there is no substantial evidence to support the award of damages allowed plaintiffs.

The damage rule applicable in this case is found in Clough v. Securities Reserve Corporation, 153 S.W.2d 93 (Mo.App.1941). At 98 the court said:

“The measure of damages for the breach because of such restriction is the difference between the value of the property with and without the restrictive clause, if its presence diminishes the value. . . The true measure of damages in such case is the difference between the market value of the land subject to the [restriction], and its market value if the [restriction] did not exist.”

The only evidence in the case directed to the question of damages was the testimony of plaintiffs’ expert witness. Inter alia, the witness opined the duplex property had a value of $37,900 but because of the burden of the restrictive covenant the property could be sold to a “risk taking cash buyer” for $32,900 “with both parties [buyer and seller] . . . being aware of the problems with the title.”

We read the expert’s testimony as putting the market value of the property at $37,900 without the restriction and at $32,-900 with the restriction. Thus, the encumbrance of the restrictive covenant diminished the value of the property by $5,000, the amount awarded plaintiffs. We conclude, therefore, there was substantial evidence to support the judgment.

We have not overlooked plaintiffs’ argument that other testimony by the expert warranted a higher award of damages. However, having determined the above testimony constitutes substantial evidence, we affirm the judgment of the trial court.

Judgment affirmed.

All concur.

      . See: McCormick, Damages § 185 (Hornbook Series 1935); 20 Am.Jur.2d Covenants, Conditions, etc., § 144 (1965).


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy Lee COVINGTON, Defendant-Appellant.
    No. 10622.
    Missouri Court of Appeals, Springfield District.
    Nov. 16, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Arthur T. Stephenson, Caruthersville, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Tommy Lee Covington (hereinafter defendant) was jury-convicted of second degree murder in the killing of Robert Thompson on August 10, 1976, at Caruth-ersville. In accordance with the verdict, defendant was sentenced to 15 years’ imprisonment.

The sole point relied on is: “The court erred in not sustaining the Appellant’s Motion [for judgment of acquittal] at the close of the State’s case for the reason that the State had failed to show the cause of death of the deceased and in so doing had failed in establishing a corpus delicti.” (Our emphasis).

Defendant offered evidence in his own behalf after the state had rested its case. By so doing, defendant waived any objection to the overruling of his motion for judgment of acquittal at the close of the state’s case. State v. Parcel, 546 S.W.2d 571, 573[3] (Mo.App.1977). Nevertheless, if no submissible case was made for the reason there was insufficient proof of the corpus delicti, then plain error affecting a substantial right is involved from which manifest injustice must have resulted. State v. Alderman, 500 S.W.2d 35, 86[1] (Mo.App.1973). Therefore, we will review the point under Rule 27.20(c), V.A.M.R.

Relative to the single issue involved, the evidence showed this: On the date of his death, Thompson was 28 years of age and weighed 185 pounds. He had once served in the U.S. Navy, was employed as a heavy equipment operator and had been “working regularly . . . every day.” Depending on whose testimony the jury believed, defendant went to Thompson’s home on the night in question at “around eight-thirty nine” or “nine-thirty, or something to ten.” Thompson went outside to talk with defendant. Mrs. Thompson, who remained inside the house, overheard Thompson and defendant arguing for “ten or twelve minutes” before she heard “sort of a scuffle” and then one shot. She immediately summoned a Hayti ambulance by telephone and went outside to where Thompson was “laying [sic] on the grass” complaining of being “real hot” and later saying that “he couldn’t feel anything.” A police officer arrived and Thompson told the officer defendant had shot him. When the officer asked “Why,” Thompson said, “I don’t know. I’m dying.” En route to a Hayti hospital in the ambulance, Thompson was unconscious but breathing. He expired after reaching the hospital. Mrs. Thompson testified her husband had not been drinking.

The county coroner cursorily examined Thompson’s dead body at the hospital morgue “around ten-fifteen or ten-thirty that night.” Thompson had been shot once in the left chest, “just about where your shirt pocket would be.” Defendant admitted he shot him with a .41 caliber Army Colt revolver which defendant’s lawyer gave to the sheriff’s dispatcher two days later. The coroner did not probe the gunshot wound. There was no evidence of an autopsy. When asked his opinion as to the cause of death, the coroner’s unobjected-to answer was, “It would be death due to gunshot wound.”

In homicide, the corpus delicti consists of two elements: (1) the death of the person alleged to have been killed, and (2) the criminal agency of someone other than the deceased having caused the death. State v. Lusk, 452 S.W.2d 219, 221[1] (Mo. 1970). Existence of the first element, as stated in defendant’s brief, “is a foregone fact.” Defendant asseverates, however, that the second element was not satisfactorily proved because the state did not present any expert testimony as to the cause of Thompson’s death. Ignoring the coroner’s unobjected-to opinion as to the cause of death, defendant iterates that no autopsy was performed and that the coroner did not probe the wound to determine its depth or the path of the bullet. Prom this he argues that a single gunshot wound in the left chest cannot be said to be mortal in the sense that death will naturally ensue therefrom. He insists any “infinite number of possible physiological complications” could have caused the death and suggests “heart attack or stroke” brought on by Thompson’s argument with defendant, etc.

As approved in State v. Brandt, 467 S.W.2d 948, 951 (Mo.1971), it was said in State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 848, 31 A.L.R.2d 682, 688 (1952): “The cause of death may be established in a prosecution for unlawful homicide without the use of expert medical testimony where the facts in evidence are such that every person of average intelligence would know from his own experience or knowledge that the wound was mortal in character.”

Here we have a young male, 28 years of age and weighing 185 pounds, who was “working regularly . . . every day” as a heavy equipment operator for a highway construction company. He previously had physically qualified to serve in the U.S. Navy. On the night in question, Thompson was possessed of enough physical vigor, so defendant testified, that he “swung on me” at the conclusion of the argument. When Thompson was shot in the left chest at close range with a large caliber revolver he fell and was unconscious until aroused by his wife. Thompson was then “real hot” and moments thereafter “couldn’t feel anything.” When the policeman arrived, Thompson told him “I’m dying.” During the ambulance trip to the hospital, Thompson, though still breathing, was unconscious and died after reaching the hospital. At 10:15 or 10:30 p. m., less than two hours or perhaps less than three-quarters of an hour after the shooting, Thompson was seen dead by the county coroner. The facts were sufficient to justify the jury’s obvious conclusion that the bullet fired by defendant into Thompson’s left chest caused his death and that death did not result from natural frailties or accident. State v. Meidle, 202 S.W.2d 79, 81[5] (Mo.1947); People v. Herrera, 12 Mich.App. 67, 162 N.W.2d 330, 332 (1968); State v. Minton, supra, 68 S.E.2d at 848[4]; Watts v. State, 210 Miss. 236, 49 So.2d 240, 241[3-4] (1950); Slaughter v. State, 21 Ala.App. 211, 106 So. 891, 892[3] (1926); Annot., 65 A.L. R.3d 283, § 3, pp. 292-299.

Judgment affirmed.

All concur.


author: PER CURIAM:

text:
    In re the MARRIAGE OF P. W. M., Petitioner-Respondent, and B. J. M., Respondent-Appellant.
    No. 10656.
    Missouri Court of Appeals, Springfield District.
    Nov. 16, 1977.

      James E. Spain, Briney, Welborn & Spain, Bloomfield, for petitioner-respondent.
    Gary L. Smith, Smith & Holden, Dexter, for respondent-appellant.
   PER CURIAM:

The wife appeals from a decree entered by the Circuit Court of Stoddard County in a dissolution of marriage proceeding. Her lone dissatisfaction with the decree is limited to that portion awarding principal custody of the two minor children born of the marriage (an 8-year-old boy and a 7-year-old girl) to the husband.

The evidence adduced and the issues raised on appeal in this case are almost exact duplicates of the evidence and issues involved in R._ G._ T._ v. Y._ G._ T._, 543 S.W.2d 330 (Mo.App.1976). In view of the similarity, there appears no need or valid reason to recast the evidence presented in the instant cause. Neither is there justification to review the controlling authorities so faithfully reported, analyzed and applied in R._ G._ T._, supra.

After conning the records and briefs and after affording the appeal careful consideration, we determine: (1) The decree of the trial court is supported by substantial evidence and is not against the weight of the evidence; (2) that no error of law appears; (3) that an opinion would have no preceden-tial value; and (4) that the decree nisi is affirmed in compliance with Rule 84.16(b), V.A.M.R.

All concur.


text:
    In re the MARRIAGE OF Wanda Louetta DILLON, Petitioner-Respondent, and William Byron Dillon, Respondent-Appellant.
    No. 10563.
    Missouri Court of Appeals, Springfield District.
    Nov. 16, 1977.

      Stephen L. Taylor, Gilmore & Gilmore, Sikeston, for petitioner-respondent.
    Jim S. Green, Hux & Green, Sikeston, for respondent-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

On July 19,1975, petitioner-wife filed her petition for dissolution of marriage. On August 19,1975, she filed her first amended petition in which she averred, inter alia, that the parties had “separated June 12, 1975” and that “the marriage is irretrievably broken.” Respondent-husband denied the allegation that the marriage was irretrievably broken by his verified answer. Only petitioner and the husband testified at trial. Among other things, the trial court found: “There remains no reasonable likelihood that the marriage . . . can be preserved and the marriage between the parties is, therefore, irretrievably broken.” The court also awarded petitioner counsel fees in the sum of $350. Respondent-husband appeals claiming the trial court erred (1) in dissolving the marriage because petitioner did not satisfy the trial court of the existence of one or more of the five facts required by § 452.320-2(l)(a)-(e), V.A.M.S., and (2) in awarding attorney’s fees because petitioner did not pray for them in her petition and did not adduce any evidence on the issue.

The only testimony proffered at trial anent the issue of whether the marriage had been irretrievably broken vel non was this: [Petitioner-wife testifying]: “Q. . have certain differences arisen between you and your husband where you feel that the marriage can no longer be maintained? A. Yes. Q. You feel that the marriage is irretrievably broken? A. Yes, I do.” [Respondent-husband testifying]: . “Q. Wouldn’t it be a fair statement to say that in view of these problems [failure of communication] the marriage can no longer be maintained? A. I am not sure that the problems are that serious that it couldn’t be, no.”

Missouri’s General Assembly did not enact a true no fault dissolution statute, but rather adopted a modified type of dissolution law. In re Marriage of Mitchell, 545 S.W.2d 313, 318[2] (Mo.App.1976). Albeit that § 452.320-2(1) requires only that the court “make a finding whether or not the marriage is irretrievably broken” and does not require a finding upon which that conclusion is based [Nichols v. Nichols, 538 S.W.2d 727, 730[2] (Mo.App.1976)], yet if one of the parties has denied that the marriage is irretrievably broken, the petitioner must satisfy the court of the existence of one or more of the five factors enumerated in the statute before the court can find that the marriage is irretrievably broken. In re Marriage of Uhls, 549 S.W.2d 107, 109[1] (Mo.App.1977); In re Marriage of Capstick, 547 S.W.2d 522, 524[2] (Mo.App.1977).

The decree was entered December 14, 1976. In her brief respondent argues that the requirements of § 452.320-2(l)(d) were met because “the parties had lived separate and apart for twelve consecutive months when the decree was entered.” However, the statute requires: “(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition.” (Our emphasis). The amended petition alleged the parties had separated June 12, 1975, and the earliest date of separation for which there was any trial evidence was “about June the 1st, 1975.” With the original petition being filed July 19, 1975 and the amended petition being filed one month later, it is obvious the parties had not been separated for twelve months “preceding the filing of the petition.”

We have recast the entire testimony adduced at trial which relates to the first issue presented on appeal. It is evident no evidence was offered which could have satisfied the trial court of the existence of one or more of the elements set forth in § 452.320-2(l)(a)-(e). Consequently, we are compelled to reverse the judgment in this case. Nevertheless, while we reverse, we also remand the cause to the trial court to provide petitioner with an opportunity to satisfy the trial court of one or more of the facts listed in the statute and for the trial court to make a finding in accordance therewith. In re Marriage of Capstick, supra, 547 S.W.2d at 524-525.

As to respondent’s second complaint on appeal: Although petitioner did not ask for attorney’s fees in her petition, the supplemental transcript on appeal filed herein shows that some six months prior to trial and by leave of court, petitioner filed a motion in which she asked for attorney’s fees. In a dissolution of marriage proceeding, the award of attorney’s fees is in the discretion of the trial court whose decision thereon will not be disturbed except for abuse of discretion [Seelig v. Seelig, 540 S.W.2d 142, 147[12] (Mo.App.1976)], and the basic test is whether the petitioner had sufficient means of her own to defray her attorney’s fees. McGinley v. McGinley, 513 S.W.2d 471, 473[7] (Mo.App.1974).

In this case most all of the evidence related to the financial abilities of the parties, present and prospective, their affluence or nonaffluence, the amount and values of the various properties involved, etc. From this the trial court could well judge of the petitioner’s abilities to pay for attorney fees. While it is true there was no evidence as to the value of the labor expended by petitioner’s attorney in the preparation and conduct of the case, it has been said that such evidence “is not necessary because courts are themselves experts on the question of attorneys’ fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees without the aid of evidence.” Agnew v. Johnson, 352 Mo. 222, 233, 176 S.W.2d 489, 493-494[6] (1943); Beckman v. Beckman, 545 S.W.2d 300, 303[9] (Mo.App.1977); Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333, 340 (Mo.App.1967). Although the laxity of a petitioner’s counsel in presenting this phase of the case has been recently criticized [In re Marriage of Vanet, 544 S.W.2d 236, 244[10] (Mo.App.1976)]; nonetheless, as the $350 awarded as attorney’s fees does not appear unreasonable on its face, and in view of the authorities just quoted and cited, we are unwilling to say that the trial court abused its discretion and deny the second point.

For the reasons given as to the first point relied on, the judgment nisi is reversed and the cause is remanded.

All concur.

      . Sec. 452.320. . . .
      2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall
      (1) Make a finding whether or not the marriage is irretrievably broken, and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts:
      (a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
      (b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
      (c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
      (d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
      (e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; or
      (2) Continue the matter for further hearing not less than thirty days or more than six months later, or as soon thereafter as the matter may be reached on the court’s calendar, and may suggest to the parties that they seek counseling. No court shall require counseling as a condition precedent to a decree, nor shall any employee of any court, or of the state or any political subdivision of the state, be utilized as a marriage counselor. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken as set forth in subdivision (1) above and shall enter an order of dissolution or dismissal accordingly.


text:
    Brian Ralph DENNIS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10523.
    Missouri Court of Appeals, Springfield District.
    Nov. 16, 1977.

      Byron D. Luber, Ward & Reeves, Caruth-ersville, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

On July 3,1973, movant (then defendant) pleaded guilty to robbery in the first degree. The plea was accepted following inquiry into its voluntariness and after establishing its factual basis. The court imposed a 20-year sentence and gave movant credit for the time he had spent in custody on the charge before pleading guilty. On April 2, 1976, movant filed a motion pursuant to Rule 27.26, V.A.M.R., to vacate, set aside or correct the judgment and sentence. After evidentiary hearing, the motion was denied with the exception that movant was allowed credit for an additional 128 days spent in custody on matters other than the robbery charge.

In haec verba, the single point relied on is that “The trial court erred in finding that movant voluntarily entered his plea of guilty.” This presents nothing for appellate review because, contrary to the mandatory language of Rule 84.04(d), V.A. M.R., the point does not undertake to say “why” it was error to find that movant voluntarily pleaded guilty. Riley v. State, 545 S.W.2d 711, 712[2] (Mo.App.1976); Anderson v. State, 493 S.W.2d 681, 684-685[7] (Mo.App.1973). Appellate courts have no duty to seek through the transcript on appeal nor seine the argument portion of the brief to ascertain the intendment of a point presented in an abstract and conclusionary fashion. State v. Velas, 537 S.W.2d 881, 883[3] (Mo.App.1976); State v. Freeman, 489 S.W.2d 749, 752[2] (Mo.App.1973). At this juncture the appeal should be summarily dismissed. State v. Yearwood, 510 S.W.2d 43, 44 (Mo.App.1974).

However, before dismissing the appeal and in excess of our appellate duty, we make the following brief observations. At the evidentiary hearing, one thrust of movant’s testimony was that his counsel had not represented him properly because the attorney made no efforts other than plea bargaining on the length of sentence, had talked to movant only on three or four abbreviated occasions and had not advised movant that he had a right to a trial. To the contrary, the lawyer who represented movant on the criminal charge testified he had represented movant at the preliminary hearing, personally interviewed the victim of the robbery and other witnesses, spent considerable time with movant on several occasions explaining the situation in depth and advised movant of his right to a trial if he desired one. As movant himself testified, the attorney’s plea bargaining efforts reduced the recommendation by the prosecutor from 35 years to the 20 years finally imposed by the sentencing court. The transcript of the plea proceeding reveals that the court inquired of movant if he was aware of his right to have a trial and that movant acknowledged his counsel had advised him of that right. A movant seeking to vacate a judgment and sentence on the ground of ineffective counsel has a heavy burden to carry [Hall v. State, 496 S.W.2d 300, 303[2] (Mo.App.1973)], and the adequacy of representation, when a guilty plea has been entered, is material only to the extent the alleged incompetency of counsel bears on the issue of voluntariness and understanding. Hess v. State, 531 S.W.2d 774, 776[4] (Mo.App.1975). The trial judge’s determination of the credibility of witnesses is entitled to deference [Hicks v. State, 544 S.W.2d 79[2] (Mo.App.1976)], and in view of counsel’s testimony and the transcript of the plea proceeding, we cannot say his finding that movant had effective assistance of counsel when he pleaded guilty was clearly erroneous. Rule 27.26(j), V.A.M.R.

In his motion movant alleged, inter alia, that his plea was involuntary because he “had been threatened by the lawyer, and deputy sheriff and indirectly by the judge who had informed movant through the deputy sheriff that he would give movant life if he did not plead guilty [and] movant believed in his mind that if he did not . . . plead guilty that he would make the judge mad, lawyer and prosecutor mad and that they would make sure that he received a life sentence.” The motion further averred that “movant believed in his mind that the lawyer, judge and deputy sheriff were working in collusion against him and that he had better enter a plea of guilty to escape a far worse fate than twenty (20) years.”

At the evidentiary hearing, mov-ant adduced absolutely no evidence of threats, collusion or anything that would tend to prove the allegations and aver-ments, supra. Allegations made in the motion are not self-proving [Ward v. State, 451 S.W.2d 79, 81[1] (Mo.1970)], and the only reason they are mentioned here is that they were alluded to in movant’s brief on appeal. The closest reference to any of the above noted averments was movant’s testimony that he once asked a deputy sheriff about his case, and the deputy had replied, “If you don’t plead guilty they are going to give you life.” However, when the deputy was called as movant’s witness, he said he had no recollection of any such conversation, that he “had no way of knowing what the case was [or] anything what was going to happen ... in court,” and that it was not his “practice to ever tell a prisoner what [he] think[s] he will get.” Of course, the standard of what movant actually “believed in his mind” is, of necessity, subjective, but the state of a person’s mind is determined on the basis of what he reasonably could have believed from the proven facts and circumstances. Barylski v. State, 473 S.W.2d 399, 401 (Mo.1971). A court cannot accept at face value what a movant said he “believed in his mind.” If it appears wholly unreasonable for him to entertain such a belief, his assertion will be viewed with extreme suspicion. State v. Rose, 440 S.W.2d 441, 445 (Mo.1969).

For the reasons previously stated, the appeal is dismissed.

All concur.


author: WALTER, Justice.

text:
    Matilda S. COLE, Appellant, v. M. W. PLUMMER, Appellee.
    No. 5009.
    Court of Civil Appeals of Texas, Eastland.
    Rehearing Denied Nov. 10, 1977.
    F. Warren Hicks, Houston, for appellant.
    A. D. Downer, M. W. Plummer, Houston, for appellee.
   WALTER, Justice.

Our opinion and judgment dated October 13, 1977 is withdrawn and the following opinion is rendered in lieu thereof.

Attorney M. W. Plummer recovered a judgment against Matilda Strambler Cole on an employment contract dated August 21, 1969 for ⅛ (One-Third) interest in Mrs. Cole’s land described in the judgment. Mrs. Cole has appealed.

Mrs. Cole alleged she was 71 years of age, uneducated and relied upon Plummer to deal fairly and honestly with her; Plummer had represented her in legal matters over a period of ten years; if she signed the contract, it was not explained to her and she did not understand she was employing him to represent her in filing a partition suit; she did not at any time agree to pay him ½ of her land for representing her; and she employed plaintiff to assist her in selling her land but no fee was agreed upon and she did not employ him to file a partition suit.

She further pleaded plaintiff did not properly represent her interest; there was no controversy as to the undivided interest the parties owned in the tract of land and no necessity for filing a partition suit; that at the time of the alleged contract, the relationship of attorney and client existed between the parties; that he did not advise her he was going to file a partition suit, the legal effects thereof and the costs involved; that at the time the suit was filed she owned 87/144ths interest in the land, E. A. Giesse owned 52/144ths interest, and Thomas Loud owned 5/144ths interest; and that the interest of the parties was admitted and there was no necessity for a lawsuit. She alleged she was forced to pay $1,341.06 in court costs and her total damages were $16,341.06. In addition to her damages, she sought cancellation of the contract and the removal of cloud from her title.

The jury found (1) Matilda Cole signed the contract of employment; (2) she intended to employ Plummer to file a partition suit to partition the land in Fayette County in which she owned an interest; (3) she understood she was agreeing to employ Plummer to file suit to partition the land at the time she signed the contract and she was agreeing to pay him an attorney’s fee of of the land; (4) a fee of ¾⅞ interest in her land was a reasonable fee for the necessary services Plummer was required to render; and (5) by filing the partition suit and obtaining a judgment Plummer performed services that resulted in a benefit to Matilda Cole. The jury answered the “quantum meruit” issue in favor of Plummer for $25,-000. They found A. D. Downer’s services as an attorney for plaintiff in this case to be $3,500. The jury also found that Matilda S. Cole did not sustain any monetary damages as a result of Plummer handling the partition suit.

Plummer pleaded his contract of employment with Mrs. Cole which contained the following:

“WHEREAS, M. W. PLUMMER, has advised, assisted and performed legal services for the said undersigned for an extended period of time;”

Plummer testified substantially as follows:

I have practiced law in Houston about twenty-three years. Sometime about 1960 or 1962, I became acquainted with Mrs. Matilda Strambler Cole. In 1960 or 1962,1 prepared a deed for her. Defendant’s Exhibit No. 1 is the deed I prepared for Mrs. Cole which is dated March 15, 1962. After I prepared the deed, I represented Mrs. Cole in my professional capacity on or about the 20th of June, 1969. I talked to her and wrote a letter for her. The letter related to a question over some land that was in the general area of the land which is involved in this lawsuit. Mrs. Cole paid me for my services on June 20, 1969. During this conference, we discussed property Mrs. Cole had in La Grange. My conversation with Mrs. Cole was a continuous extension of earlier conversations we had relative to the land problem she had in La Grange.
I originally became acquainted with Mrs. Cole about ten years ago from a business standpoint. The first time Mrs. Cole came to see me was to prepare a deed or some deeds. Through the years up until I filed the partition suit on the property near La Grange, I did other legal work for her. I prepared a will for her. About 2 or 3 years before Mrs. Cole signed the contract, I had discussed the partition suit with her.

He was asked the following questions and he gave the following answers:

“Q Now wait a minute. I am not asking you what she had knowledge of. I am asking you did you explain to her what a partition suit was?
A At the time the contract was signed I did not explain to her what a partition suit was.
Q Did you at any time explain to her what a partition suit was?
A No, sir, I did not.
Q Insofar as you know she never knew you were going to file a partition suit as a partition suit in Fayette County, did she?
A No, sir.
Q You had been her attorney for some period of ten years, hadn’t you?
A Yes, sir.
Q You knew she had confidence in you, didn’t you?
A Yes, sir.
Q Notwithstanding that fact you didn’t explain to her what you were going to do, did you?
A Yes, sir, I explained to her what I intended to do.
Q Did you tell her you were going to file a partition suit?
A No, sir.”

We hold the relationship of attorney and client was established as a matter of law. McCormick & Ray, Texas Evidence § 1127 (2d ed. 1956).

In Rankin v. Naftalis, 557 S.W.2d 940 (Tex., 1977), the court said:

“The scope of a prior confidential relationship is broader when the defendant is a fiduciary such as an executor, administrator, guardian, attorney or partner. Thigpen v. Locke, supra; Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938); Bogert, Trusts & Trustees § 481 (2d ed. I960).”

In Archer v. Griffith, 390 S.W.2d 735 (Tex.1964), our Supreme Court said:

“Petitioner insists that the trial court erred in setting aside the deed because there is no evidence of any fraud in connection with its execution and delivery. It was stipulated by the parties that the relationship of attorney and client existed between petitioner and respondent when the deed was executed and delivered. That fact has an important bearing on the controversy. The relation between an attorney and his client is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny, intendments and imputations as a transaction between an ordinary trustee and his cestui que trust. ‘The burden of establishing its perfect fairness, adequacy, and equity, is thrown upon the attorney, upon the general rule, that he who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other.’ Story, Equity Jurisprudence, 7th ed. 1857, § 311. This principle has always been recognized by the Texas courts. Cooper v. Lee, 75 Tex. 114, 12 S.W. 483; Holland v. Brown, Tex.Civ.App., 66 S.W.2d 1095 (writ ref.); Bell v. Ramirez, Tex.Civ.App., 299 S.W. 655 (writ ref.).”

The Supreme Court of Texas in the case of Stephens County Museum v. Swenson, 517 S.W.2d 257, where a fiduciary relationship existed between the Swenson sisters and their brother, held:

“. . . Under such conditions, equity indulges the presumption of unfairness and invalidity, and requires proof at the hands of the party claiming validity and benefit of the transaction that it is fair and reasonable. Pomeroy, Equity Jurisprudence § 956 (5th Ed. 1941); Archer v. Griffith, 390 S.W.2d 735 (Tex.1965); Cooper v. Lee, 75 Tex. 114, 12 S.W. 483 (1889); see also Tippett v. Brooks, 28 Tex.Civ.App. 107, 67 S.W. 512, writ ref’d, 95 Tex. 335, 67 S.W. 495, 512 (1902) . . ”

After it is determined the relationship of attorney and client exists, the attorney has the burden of presenting evidence and securing a finding the confidential relationship was not breached. The material issues are whether the attorney made reasonable use of the confidence placed in him and whether the employment contract was ultimately fair and equitable to the appellant. Stephens County Museum v. Swenson, supra.

The court refused to give the following special issues:

“Do you find from a preponderance of the evidence that M. W. Plummer in obtaining the employment contract made reasonable use of the confidence placed in him?”
“Do you find from a preponderance of the evidence that the terms of said employment contract were fair and equitable to Matilda Cole?”
“Do you find from a preponderance of the evidence that under the circumstances there was good faith effort on the part of M. W. Plummer to fully inform Matilda Cole the nature and effect of the filing of a partition suit?”

We hold the court erred in failing to submit the requested special issues. The judgment is reversed and because the case was not fully developed and in the interest of justice, the cause is remanded.

McCLOUD, C. J., not participating.


author: COLEMAN, Chief Justice.

text:
    METAL ENTERPRISES, INC., Appellant, v. DON LOVE, INC., et al., Appellees.
    No. 16990.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 25, 1977.

      Charles B. Kirklin, Houston, for appellant.
    Bracewell & Patterson, Michael A. Pohl, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from an order dismissing a case for want of prosecution. A motion to dismiss the appeal for want of jurisdiction has been filed. The motion is granted and the appeal is dismissed.

In April 1972 Metal Enterprises, Inc. sued Don Love, Don Love, Inc. and U.S. Plywood-Champion Papers, Inc. in the County Civil Court of Law Number 2 alleging a breach of contract. The defendants filed timely answers. In 1977 a motion to dismiss the case for want of prosecution was filed by the defendants. After a hearing in which the attorney for the appellants participated, the case was dismissed by an order dated May 9, 1977. On May 24, 1977 the plaintiff filed a motion to reinstate. On June 1, 1977 the motion to reinstate was denied by an order reciting that the trial court’s “order of dismissal dated May 9, 1977 not be set aside. . . . ” The order also recites the plaintiff’s notice of appeal.

The plaintiff filed an appeal bond on June 22, 1977. In order to perfect an appeal to this court the cost bond must have been filed on or prior to June 8,1977. Rule 356(a), T.R.C.P. Plaintiff’s motion for reinstatement was not filed within ten days from the date on which the judgment of dismissal was signed. If the motion to reinstate should be considered a motion for new trial, it was not timely filed. In such a case the time for filing of an appeal bond begins on the date the judgment is signed. The tardy filing of a motion for new trial does not operate to extend the time for filing the appeal bond even though the late motion be considered and overruled by the trial judge. Calk v. Gana & Smith Ins. Agcy., Inc., 535 S.W.2d 755 (Tex.Civ.App.—Tyler 1976, no writ history); Dillard v. McClain, 159 Tex. 559, 324 S.W.2d 163 (1959).

This court cannot acquire jurisdiction of an appeal where an appeal bond has not been timely filed. Curtis v. Carey, 378 S.W.2d 418 (Tex.Civ.App.—Corpus Christi 1964, no writ history).

The appellant asserts that he filed a motion to reinstate the case under Rule 165a, T.R.C.P. and that he is entitled to appeal from an order overruling the motion. The appeal bond was timely filed if an appeal may be taken from the order refusing to reinstate rather than from the judgment dismissing the case.

Rule 165a, supra, provides that a case may be dismissed for want of prosecution on failure of any party seeking affirmative relief or his attorney to appear for any hearing or trial of which he had notice, or on failure of such party or his attorney to request a hearing, or take some other action specified by the court, within fifteen days after the mailing of notices of the court’s intention to dismiss the case for want of prosecution. The rule also provides that within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. The words “the failure” must be construed in connection with the grounds for dismissal as quoted above. The provision for reinstatement quoted applies only to cases.that are dismissed because of the failure of the party to appear for a hearing or trial or to request a hearing within 15 days after the mailing of notices of the court’s intention to dismiss the case, or to take some other action specified by the court within the 15 day period after the mailing of notices. The rule also provides that this dismissal and reinstatement procedure shall be cumulative, independent of, and unaffected by the rules and laws governing any other procedures available to the parties in such cases.

It is not necessary to a decision in this case to determine whether or not an appeal can be taken from the action of the trial court in denying a motion to reinstate. The motion to reinstate filed, in this case is not one which properly could be filed under Rule 165a, supra. Here the appellee filed a motion to dismiss in the trial court. The appellant filed a pleading in opposition to the motion. The trial court heard the matter and entered his order dismissing the case. The judgment was not based on the failure of the party or his attorney to appear for a hearing or trial. The case was not placed on a dismissal docket. The provisions of the rule relating to the failure of a party to request a hearing or take some other action specified by the court within 15 days after the mailing of notices of the court’s intention to dismiss are not applicable.

The appellant has failed to allege any grounds for relief specified in Rule 165a, supra. The motion filed was not verified by the movant or his attorney as required by the rule. While the motion is entitled “Plaintiff’s Motion to Set Aside Dismissal and Reinstate”, it is in substance a motion for new trial.

The requirement that an appeal bond be filed within 30 days after rendition of judgment is mandatory and jurisdictional to an appeal, and the time prescribed by the rule cannot be dispensed with or enlarged by the trial court for any reason. Rule 5, T.R.C.P.; Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956); Reese v. Piperi, 534 S.W.2d 329 (Tex.1976).

The appeal is dismissed.


author: ROBERTSON, Justice.

text:
    The CITY OF MESQUITE, Appellant, v. ALADDIN'S CASTLE, INC., Appellee.
    No. 19257.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 14, 1977.
    Rehearing Denied Nov. 3, 1977.

      Elland Archer, City Atty., Mesquite, for appellant.
    Thomas L. Case, Bickel & Case, Dallas, for appellee.
   ROBERTSON, Justice.

Aladdin’s Castle, Inc. sued the City of Mesquite, Texas, seeking a mandatory injunction to compel the issuance of a license for the operation of a coin-operated amusement establishment pursuant to a city ordinance. The trial court vacated the City Council’s denial of the application and issued a mandatory injunction to compel the city secretary to issue the license. We affirm.

The initial issue on this appeal is whether the portion of the ordinance upon which the Council rested its decision is unconstitutionally vague. If we decide that the provision is unconstitutional, we must then determine whether an injunction was proper under the facts of this case.

The Constitutional Question

Ordinance number 1103 of the City of Mesquite prohibits the operation of coin-operated amusement establishments without a license. When Aladdin’s Castle applied for such a license, its application was refused on the recommendation of the police department. According to the pleadings and testimony below, the refusal was based upon the following provision of the ordinance:

The Chief of Police shall make his investigation of the applicant’s character and conduct as a law abiding person and shall consider past operations, if any, convictions of felonies and crimes involving moral turpitude and connections with criminal elements, taking into consideration the attraction by such establishments of those of tender years. [Emphasis added]

Since the record is silent regarding any past operations or convictions, the Council’s sole basis of refusal was the alleged “connections with criminal elements.” In its judgment, the trial court held that this provision was so vague, general, and indefinite as to violate the constitutional guarantee of due process of law. We agree. In our opinion, this section does not provide an ascertainable standard of conduct upon which to base a licensing refusal.

The recognized test in cases involving vagueness of statutes is set forth in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964):

A law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily gue3s at its meaning and differ as to its application violates due process of law.

See also Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (1942); Coffee City v. Thompson, 535 S.W.2d 758, 762-63 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.). Implicit in this constitutional safeguard is the premise that laws must have an understandable meaning and that they must set legal standards which are capable of application. It is established that a law fails to meet the standards of due process if it is so vague and standardless as to leave a governing body free to decide, without any legally fixed guidelines, what is prohibited in each particular case. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); see also Papachristou v. City of Jacksonville, 405 U.S. 156,162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Giaccio v. State of Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); cf. Baggett v. Bullitt, supra (statute which prohibited government employment of “subversive persons” held unconstitutionally vague); Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961) (statute forbidding employment of “subversive persons” as teachers held unconstitutionally vague); Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (statute making it unlawful to become a “gangster” held unconstitutionally vague, inasmuch as it allowed convictions of persons “known to be a member” of a gang); Sanders v. State Dept. of Public Welfare, 472 S.W.2d 179, 182 (Tex.Civ.App.—Corpus Christi 1971, writ dism’d) (regulation precluding welfare payments on the basis of debts owed to “relative” held unconstitutionally vague).

In the present case, the ordinance allows refusal of a license on the basis of an applicant’s “connections with criminal elements.” There is no guideline on the interpretation of who might be a “criminal element,” or what type of relationship is meant by “connections.” The term “connections” could embrace spouses, children, and other persons with whom the applicant might have a wholly innocent and lawful relationship, and the term “criminal elements” could conceivably encompass any entity ever involved in criminal behavior of any degree. As the ordinance now stands, it confers unbridled discretion upon the Council to deny licensing without regard to any legally ascertainable standards. Such an investiture has long been recognized as unconstitutional. Shuttlesworth v. City of Birmingham, supra; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Saia v. People of State of New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Schneider v. State of New Jersey, 308 U.S. 147, 163-64, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Yick Wo v. Hopkins, 118 U.S. 356 (1885). Although the City urges that it will not construe the ordinance in an unconstitutional manner, such a consideration is irrelevant to the constitutional issue of its susceptibility to such a construction. As Justice White stated in Baggett v. Bullitt, supra, 377 U.S., at 373, 84 S.Ct., at 1323: “Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.”

While it is true that we must generally adopt a construction which upholds the constitutionality of a statute, State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.1964), the present provision does not manifest any degree of specificity from which we may derive a constitutional construction. See Sanders v. State Dept. of Public Welfare, supra, at 182. The ordinance does not define “connections with criminal elements,” and the evidence does not show that this phrase has a peculiar or technical meaning as applied to some trade or science. Cf. Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639 (Tex.Civ.App.—Dallas 1976, no writ) (statute upheld where the act stated that the undefined term, which was attacked as unconstitutionally vague, would have the meaning commonly ascribed to it in the field of air pollution control).

Accordingly, we hold that the portion of ordinance 1103 of the City of Mesquite which allows denial of a license based upon the applicant’s “connections with criminal elements” is unconstitutionally vague. Since we conclude that this provision is separable from the rest of the ordinance, we isolate the invalid portion and preserve the constitutional remainder of the ordinance. Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604 (1938); City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.2d 215 (Tex.Civ.App.—Austin 1948, writ ref’d). Thus, our holding here does not preclude denial of a license upon any other ground specified in the ordinance, provided of course, that such a denial is based upon substantial evidence.

The Mandatory Injunction

The City next argues that even if this portion of the ordinance is unconstitutional, the trial court erred in granting a mandatory injunction to compel issuance of the license. We do not agree. To the extent that this order compels the City public officials to perform an act, its appropriateness is governed by the rules which apply to mandamus, Salgo v. Matthews, 497 S.W.2d 620, 625 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.), and the sole question is whether the facts conclusively show that the Council has a clear duty to approve the license and the city secretary to issue it. lessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1975); Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422 (1961).

The record of this case reveals that the City bases its denial of the license solely on the unconstitutional portion of the ordinance. There is no indication that other sections of the ordinance were considered, and we cannot say that this record supports a refusal based upon other portions of the ordinance. In the absence of evidence showing other grounds for refusal, we hold that the trial court correctly granted mandatory relief.

Affirmed.


author: PRESLAR, Chief Justice.

text:
    Benjamin LORET et al., Appellants, v. Jacqueline I. FORD et al., Appellees.
    No. 6679.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 19, 1977.
    Rehearing Denied Nov. 16, 1977.

      Gloria T. Svanas, Odessa, McCandlish, Lillard, Bauknight, Church & Best, Randolph W. Church, Jr., Fairfax, Va., for appellants.
    Mike Atkins, County Atty., Ater & Hirsch, H. Thomas Hirsch, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Fred M. “Mickey” Jones, Odessa, for appellees.
   OPINION ON MOTION TO DISMISS

PRESLAR, Chief Justice.

This is an appeal from a temporary injunction obtained by The First National Bank of Odessa to restrain the Sheriff of Ector County, Elton A. Faught, from carrying out a writ of execution. The Bank, as Appellee in this appeal, has filed a motion to dismiss the appeal on the ground that the matter is now moot. We agree and the appeal will be dismissed.

The writ of execution sought to reach certain trust funds held by the Bank in the name of Jacqueline Ford Trust No. 1. It is now made to appear by an order of the Court that the Bank no longer has those funds in its possession. The Court allowed the Bank its Bill of Interpleader and by Order dated September 6, 1977, the Court ordered the physical possession of the assets .of the Trust be delivered to the Clerk of the Court. This has been done, and the Appel-lee Bank does not need the temporary injunction since it no longer has any property in its possession subject to the execution. Under such circumstances, the proper order is to set aside all orders pertaining to the temporary injunction and dismiss the appeal. Accordingly, the judgment of the trial Court of July 25, 1977, granting temporary injunction is vacated and set aside and the appeal of this cause is dismissed.


author: PER CURIAM.

text:
    Melba Rheudell BURRELL, Appellant, v. J. R. CORNELIUS et al., Appellees.
    No. 1082.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 20, 1977.
    Rehearing Denied Dec. 8, 1977.

      Ben L. Krage, Kasmir, Willingham & Krage, Dean Carlton, Dallas, for appellant.
    Joe W. Lovelace, Lovelace & Thompson, Inc., Linden, James R. Cornelius, Jr., Zeles-key, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellees.
   PER CURIAM.

This is a summary judgment case. Appellant brought this suit in the 115th Judicial District Court of Marion County to recover one-half of the purchase monies from the sale of homestead property. She alleged that appellees paid out the proceeds to other parties in contravention of her rights. Appellee answered and filed a cross-action in the same court. An order granting summary judgment in favor of appellee was signed by the Honorable Morris Rolston, District Judge, Marion County, on December 30,1976, and filed on January 3, 1977. Said order disposed only of appellant’s original cause of action and made no disposition of the appellee’s cross-action.

An order was later signed by the Honorable Virgil Mulanax, Judge, 76th Judicial District Court of Marion County. The date that this order was signed is the crux of the problem. The only date, other than the clerk’s file mark, appearing on the order is contained in the opening sentence, “BE IT REMEMBERED that on this 20th day of January, 1977 . . ..” The order was filed on January 27, 1977, as was appellee’s motion for non-suit on his cross-action. From the body of the order, it appears to be a response to appellee’s motion for non-suit in the cross-action. However, nowhere in the order is it stated whether said motion is granted or denied. It does state that the earlier summary judgment “is hereby adopted by the Court as final judgment in this cause.”

On February 3, 1977, appellant filed an original motion for new trial praying that the court’s judgment of January 27 be set aside.

On February 23, 1977, appellant filed her cash bond for appeal and her amended motion for new trial. The transcript was filed in the Court of Civil Appeals on June 3, 1977.

Appellee moves to dismiss the appeal on the grounds that the Court of Civil Appeals has no jurisdiction due to the fact that the various steps for appeal were not taken within the time periods set out in the Rules of Civil Procedure. We are compelled to grant his motion.

Appellee, in support of his motion, suggests two dates from which the time for appeal should be measured, either of which would deprive this Court of jurisdiction.

First, appellee contends that the date of the summary judgment is the date from which appellant should take her various steps of appeal. Appellee relies on the Supreme Court’s holding in North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966). Judge Calvert states at page 897-8:

“When a judgment, not intrinsically interlocutory in character, is rendered and entered in a cause regularly set for a conventional trial on the merits . it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and all issues made by the pleadings between such parties.” [Emphasis added.]

Although many distinctions have been drawn, none are persuasive when applied to the facts of the case at bar. This rule would apply and we would have no jurisdiction were it not for certain matters appearing of record.

Appellee’s cross-action was filed pri- or to his motion for summary judgment. The summary judgment made no mention of the cross-action. Therefore, matters appearing of record show the summary judgment to be intrinsically interlocutory since no disposition, impliedly or otherwise, was made of the pending cross-action. The cross-action was finally disposed of by Judge Mulanax's order. Also, this cause was never set for a conventional trial on the merits. The only setting appearing in the record was to hear appellee’s motion for summary judgment. Finally, appellee himself presented for the court’s consideration a motion for non-suit. No date appears on said motion except for the clerk’s file mark of January 27,1977. Appellee’s own motion for non-suit rebuts any presumption of finality. The order granting summary judgment signed December 30, 1976, was not a final judgment. Therefore, the time periods for taking the various steps of appeal should be computed from the time of signing of the order by Judge Mulanax.

Appellee contends that the date of Judge Mulanax’s order is January 20, 1977, while appellant contends that the order was signed on January 27,1977. Appellant further presents for our consideration, by way of supplemental transcript, a certificate of Judge Mulanax reciting the date of signature to be January 27, 1977.

In determining the periods within which the various steps for appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the judge as stated therein. In the event the date of signing of a judgment or order is not shown therein as required, then the date of rendition shall be otherwise shown of record. T.R.C.P. 306a.

The face of the judgment itself is determinative of when the judgment was rendered for the purpose of appeal. Cox v. Payne, 231 S.W.2d 957, 958 (Tex.Civ.App.—Amarillo 1950, no writ); Dean v. Warren, 464 S.W.2d 672 (Tex.Civ.App.—Tyler 1971, no writ). The filing of the judgment by the clerk of the trial court is without force and effect to establish the date of the judgment. Heard v. Heard, 305 S.W.2d 231 (Tex.Civ.App.—Galveston 1957, writ ref’d); First National Bank of Mineóla v. Farmers & Merchants State Bank, 417 S.W.2d 317 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.).

Appellant cites Sharp v. Knowles, 474 S.W.2d 956 (Tex.Civ.App.—Tyler 1971, no writ), in support of his contention that we may consider Judge Mulanax’s certificate in determining the date of signature. We disagree.

In Sharp, we did not vary from the above rules. While we may not consider extraneous statements to determine the date of judgment, said date may “be otherwise shown of record.” T.R.C.P. 306a. In Sharp, appellant filed of record a judgment nunc pro tunc which provided the true and correct date of judgment. T.R.C.P. 316. Therefore, we did not look beyond the face of the judgment as appellant contends. We would be going beyond the face of the judgment and the above rules if we considered Judge Mulanax’s certificate. Therefore, we cannot look to Judge Mula-nax’s certificate to confer jurisdiction upon this court. We are bound by the date appearing on the order, January 20, 1977.

An original motion for new trial must be filed within ten (10) days after the judgment or other order complained of is rendered. T.R.C.P. 329b 1. The filing of a motion for new trial after ten days have expired and before thirty days have expired since the rendition of the judgment shall not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of rendition of judgment. T.R.C.P. 329b 5. Where a motion for new trial is filed after the ten-day period, the time periods for the remaining steps of appeal are computed from the date judgment was rendered. See Thomas v. Davis, 553 S.W.2d 624 (Tex.1977).

Whenever a bond for costs on appeal is required, such bond shall be filed within thirty days after rendition of judgment. T.R.C.P. 354, 356(a).

In an appeal the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial. T.R.C.P. 386.

Accordingly, January 20,1977, being the date of judgment shown of record, neither the appeal bond nor the transcript and statement of facts were filed within the required time periods. Therefore, this court has no jurisdiction of this appeal. Thomas v. Davis, 553 S.W.2d 624 (Tex.1977), Midland-Guardian Co. v. Mercantile Credit Corp., 516 S.W.2d 246 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.); Sharp v. Knowles, 474 S.W.2d 956 (Tex.Civ.App.— Tyler 1971, no writ); Horner v. Seiders, 371 S.W.2d 416 (Tex.Civ.App.—Austin 1963, writ ref’d n. r. e).

Appellees’ Motion to dismiss is hereby granted, and the appeal is accordingly dismissed.


text:
    John H. HEREFORD, Appellant, v. Marania Adame SHARP, Appellee.
    No. 19322.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 24, 1977.

      Robert T. Baskett, Zimmerman, Driscoll & Baskett, Dallas, for appellant.
    B. Russell Niederer, Dallas, for appellee.
   ROBERTSON, Justice.

Marania Adame Sharp sued to enjoin John H. Hereford from consummating a trustee’s sale of her house under the provisions of a deed of trust. The trial court enjoined the sale, and Hereford appealed. We dissolve the order.

The primary question on this appeal is whether the trial court erred in construing the note secured by the deed of trust so as to excuse further payment by Mrs. Sharp. The note, executed on July 30, 1966, provides as follows:

For Value Received, I we, or either of us, the undersigned, promise to pay to GREAT NATIONAL DEVELOPMENT CORPORATION_or order, the sum of SIX THOUSAND SEVEN HUNDRED AND NO/100_DOLLARS with interest from date at the rate of eight per cent per annum . . .
The principal of this note is payable in 120 monthly installments of $56.50 each, including interest, the first installment being due and payable on or before the first day of August, 1966, and one installment to become due and payable on or before the first day of each succeeding month thereafter until the whole principal sum is paid, except that if not sooner paid the final payment of principal and interest will be due on June 1, 1976.

The interest on the note was payable monthly. Pursuant to this note, Mrs. Sharpe paid 120 monthly payments of $56.50 each, totalling $6,780.00. The trial court held that these payments fully satisfied the obligation under the note, and enjoined Hereford from foreclosing on the property.

Although neither party so pleaded, the trial court’s holding is based upon an apparent finding of ambiguity between the first two paragraphs of the note. At trial, Mrs. Sharp argued that her obligation was discharged by payment of the 120 monthly installments, while Hereford urged that she remained liable for the difference between the amount paid and the amount specified in the first paragraph, namely, $6700 at eight percent annual interest. The court apparently concluded that these paragraphs fatally conflicted, and ruled that the “specific” enumeration of monthly payments should control over the “general” statement of the total amount due. Hereford asserts, however, that those paragraphs do not conflict, and that the trial court thus erred in adopting its limiting construction. We agree. As we view the instrument, it is not ambiguous, but provides for the payment of $6700 plus interest at eight per cent annually, with a portion of the obligation to be paid in 120 monthly installments of $56.50 each, and a final payment of the remaining principal and interest due no later than June 1, 1976. Since the interest is payable monthly and is included in the monthly payment of $56.50, the amount of interest on the outstanding balance must be computed each month, and only that part of the monthly payment in excess of the interest due can be credited to the principal. Otherwise, the provisions for interest at eight per cent and for monthly interest payments would have no meaning.

This construction is necessary because of the basic rule that all parts of an instrument are intended to have some meaning, and that they must be given effect unless necessarily repugnant to another clause. Spiritas v. Robinowitz, 544 S.W.2d 710, 718-19 (Tex.Civ.App.-Dallas 1976, writ ref’d n. r. e.); Fruhman v. Nawcas Benevolent Auxiliary, 436 S.W.2d 912,915 (Tex.Civ.App.-Dallas 1969, writ ref’d n. r. e.); Williams v. J. & C. Realty Co., 254 S.W.2d 178, 179 (Tex.Civ.App.-San Antonio 1952, writ ref’d). Secondary rules of construction which limit or negate contractual provisions are applicable only if there is an irreconcilable conflict between the provisions, and where the court can reasonably harmonize apparently conflicting provisions, it should do so. Southland Royalty Co. v. Pan American Petroleum Corp., 378 S.W.2d 50, 57 (Tex.1964); Benskin v. Barksdale, 246 S.W. 360, 363 (Tex.Com.App.1923, holding approved); Spiritas v. Robinowitz, supra at 719.

Since our construction of the note precludes discharge of the obligation by payment of the monthly installments, an outstanding debt remains which justifies Hereford’s foreclosure on the property. Accordingly, we hold that the trial court erred in enjoining the trustee’s sale.

Injunction dissolved.


text:
    Gladys E. STOCKTON, Appellant, v. The KROGER COMPANY, Appellee.
    No. 19324.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 31, 1977.

      Alfred W. Ellis, Woodruff & Ellis, Dallas, for appellant.
    John H. Martin, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   ROBERTSON, Justice.

Gladys E. Stockton sued the Kroger Company to recover for injuries suffered when she slipped and fell upon entering a Kroger store in Richardson, Texas. She alleged that Kroger was negligent in failing to remove water from the floor, failing to warn her of the danger, failing to inspect, and in failing to maintain the premises in a reasonably safe condition. The case was tried to a jury, and at the close of plaintiffs evidence, the trial court granted Kroger’s motion for instructed verdict and entered a take-nothing judgment against Mrs. Stockton. We affirm.

The sole question on this appeal is whether there was evidence to support submission of the issues of negligence to the jury. An instructed verdict is proper only if there is no evidence to support the submission of a necessary issue, and on appeal, the appellate court must indulge every inference that may be properly drawn from the evidence against the action of the trial court. Echols v. Wells, 510 S.W.2d 916 (Tex.1974); Seideneck v. Cal Bayreauther Associates, 451 S.W.2d 752 (Tex.1970); Anderson v. Moore, 448 S.W.2d 105 (Tex.1969). To avoid a directed verdict in a slip and fall case, the plaintiff must introduce some evidence of the following elements:

(1) That there was a foreign substance on the floor where the slip occurred;
(2) That the defendant placed the foreign substance on the floor; or
(3) That the defendant knew that the foreign substance was on the floor and willfully or negligently failed to remove it; or
(4) That the foreign substance had been on the floor for such a length of time that it should have been discovered and removed by the defendant in the exercise of ordinary care.

Newton v. General Manager of Scurlock’s Supermarket, 546 S.W.2d 76, 78 (Tex.Civ.App.—Corpus Christi 1976, no writ); Franklin v. Safeway Stores, Inc., 504 S.W.2d 514, 516 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); Great Atlantic & Pacific Tea Co. v. Giles, 354 S.W.2d 410 (Tex.Civ. App.—Dallas 1962, writ ref’d n. r. e.)

Indulging all evidentiary inferences against the directed verdict, we nevertheless conclude that there is no evidence of any negligence by Kroger. Even assuming the existence of some foreign substance on the floor which caused the slip and fall, Mrs. Stockton still had the burden to° show that Kroger was somehow responsible for the presence of the substance on the floor at the time of the accident. Franklin v. Safeway Stores, Inc., supra at 516-17. There is no evidence in this case that Kroger employees placed the substance on the floor, or that they had actual knowledge of its presence. Neither is there any proof that the substance had been on the floor for such a length of time that it should have been discovered in the exercise of ordinary care. At best, the evidence in this case only shows that the accident occurred some thirty minutes after a heavy rain, while it was still “misty” and that some water may have been tracked in by shopping carts. Although the store manager testified that there may have been some dampness “around the doors” earlier in the day, he stated that this had been mopped up. To avoid accidents, he had furnished a carpet for the customers to dry their feet upon entry, and had instructed the package boys to mop regularly. In the absence of contrary evidence, there is no reason to believe that any substance on the floor would not have been promptly discovered and mopped in the exercise of ordinary care. Cf. Kroger Store, Inc. v. Hernandez, 549 S.W.2d 16 (Tex.Civ.App.—Dallas 1977, no writ) (description of substance as “already dried where it looks like cake” presented fact issue for jury determination); Furr’s Inc. v. Bolton, 333 S.W.2d 688 (Tex.Civ.App.—El Paso 1960, no writ) (testimony that grape juice on the floor was “clear looking and had dried some around the edges” and that it took around thirty minutes to an hour to reach a condition held sufficient to raise fact issue for jury.) Since we have concluded that there was no evidence that the substance remained on the floor for an unreasonable length of time, we hold that the Kroger’s motion for directed verdict was properly granted.


author: AKIN, Justice.

text:
    Charles SCHAEFER et al., Appellants, v. UNIGARD SECURITY INSURANCE COMPANY, Appellee.
    No. 19256.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 2, 1977.
    Rehearing Denied Dec. 8, 1977.
    Bobby W. Kolenovsky, Francis, Coffin, Francis & Kolenovsky, Hayden H. Cooper, Craig T. Enoch, Mosley & Jones, Dallas, for appellants.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellee.
   AKIN, Justice.

This appeal is from a judgment in favor of Unigard Security Insurance Company rendered by the trial court on stipulated facts. Plaintiffs sued to recover benefits under a personal injury protection endorsement on a policy of automobile insurance issued by Unigard to Abraham Wyloge, the named insured. The insurance company denied liability on the ground that Endorsement 119, “Exclusion of Named Driver,” excluded from the policy’s coverage all claims arising out of accidents when the automobile was being driven by David Wy-loge, the driver of the car when the accident occurred. The question presented is whether Endorsement 119, “Exclusion of Named Driver,” excludes from coverage the Personal Injury Protection Benefits, under Endorsement 243. We hold that it does not and, accordingly, reverse the judgment of the trial court and render judgment for the plaintiffs.

Plaintiffs contend that the terms of Endorsement 243 clearly establish that an exclusion such as Endorsement 119 does not apply to Endorsement 243. We agree. Endorsement 119 entitled “Exclusion of Named Driver” provides in part: “It is agreed that the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by David Wyloge.” Our question, then, is whether this Endorsement excludes from coverage the benefits provided for by Endorsement 243. The relevant portion of Endorsement 243 is:

None of the insuring agreements, exclusions or conditions of the policy shall apply to the insurance afforded by this Endorsement except the conditions “Premium,” “Changes,” “Assistance and Cooperation of the Insured,” “Changes,” “Assignment,” “Cancellation” and “Declarations.” [Emphasis added]

As we read this language, none of the exclusions shall apply to the insurance afforded by Endorsement 243. Since Endorsement 119 by its term is an “exclusion” and it does not fall within the ambit of any exception in Endorsement 243, we hold that it is an “exclusion” within the language of Endorsement 243 and does not apply to coverage for personal injury protection benefits.

Unigard argues, however, that since personal injury protection benefits, as set forth in Endorsement 243, can be rejected by the insured, Tex.Ins.Code Ann. art. 5.06-3 (Vernon Pamphlet Supp.1975), the act of Abraham Wyloge in signing Endorsement 119 was a partial rejection of the personal injury protection benefits. In support of its position that personal injury protection benefits can be partially rejected, it cites Greene v. Great American Ins. Co., 516 S.W.2d 739 (Tex.Civ.App.—Beaumont, 1974, writ ref’d n.r.e.). In that case the Beaumont Court of Civil Appeals held that uninsured motorist coverage, provided for in Tex.Ins.Code Ann. article 5.06-1 (Vernon Pamphlet Supp.1975), could be partially rejected with respect to a specified driver by the execution of Endorsement 119. Uni-gard contends that since personal injury protection coverage can be rejected as can uninsured motorist coverage, the holding in Greene controls. We cannot agree because Greene is distinguishable by virtue of the differences in the two statutes. Although personal injury protection coverage and uninsured motorist coverage are not mandatory, and can be rejected by the insured, the similarity between the two stops there. Article 5.06-3, with respect to personal injury protection coverage provides in part:

c. The benefits required by this act shall be payable without regard to the fault or non-fault of the named insured or the recipient in causing or contributing to the accident, and without regard to any collateral source of medical . . . benefits. An insurer paying benefits pursuant to this Act shall have no right of subrogation and no claim against any other persons or insurer to recover any such benefits by reason of the alleged fault of such other person in causing or contributing to the accident. [Emphasis added]

Thus, as we read this language, personal injury protection is a true no-fault plan whereas uninsured motorist coverage under article 5.06-1 requires fault. Similarly, the uninsured motorist statute expressly provides for subrogation rights of an insurer, but the personal injury protection coverage statute explicitly does not. The differences present in personal injury protection coverage and uninsured motorist coverage merit different treatment. Consequently, we decline to extend the rationale in Greene to personal injury protection coverage. We conclude, therefore, that Endorsement 119 is not a partial rejection of personal injury protection coverage; effective rejection of this coyerage occurs only where the insured totally rejects the coverage. Since we have held that Endorsement 119 is not a partial rejection of the personal injury benefits, it follows that plaintiffs are covered by this insurance. Accordingly, the judgment of the trial court is reversed and judgment here rendered for plaintiffs.


author: MASSEY, Chief Justice.

text:
    Patricia MOORE, Appellant, v. CITRAN, Appellee.
    No. 17891.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 3, 1977.
    Rehearing Denied Dec. 1, 1977.
    Herrick & Waltrip and Bill Waltrip, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins and William L. Hughes, Jr., Fort Worth, for appellee.
   OPINION ON MOTION FOR REHEARING

MASSEY, Chief Justice.

Our opinion rendered October 13, 1977 is withdrawn, with the following substituted therefor.

Plaintiff was a passenger on a city bus operated by Citran. She had boarded the bus only a few moments before the occasion of her accident and had not arrived at her seat. She was approximately eight feet from the point in the aisle which would be opposite the driver and was walking toward the rear as the bus was moving out and at a time when its speed was between 15 and 20 miles per hour. At that time a passenger automobile going the same direction went past the bus and then changed lanes by turning rather sharply into the lane immediately in front. The driver applied his brakes rather abruptly to avoid colliding with such passenger automobile, and as a result thereof plaintiff was caused to be thrown backward so that she came to a sitting position immediately alongside the driver. She was injured as a result and by her suit against Citran sought damages.

Upon trial before a jury there was refusal to find for the plaintiff that Citran was negligent in starting of the bus from a stopped position before she was seated or in failing to warn her of the impending stop because of the presence of the passenger automobile. Based thereon the trial court rendered judgment that the plaintiff take nothing by her suit. She appealed.

We reverse and remand.

We think it obvious that the fact that plaintiff was not seated when the bus was started from its stopped position would not have been negligence on the part of Citran, though the fact that she was not yet seated “set the stage” for her fall when there was application of the bus brakes. Nothing to the effect that plaintiff was other than able-bodied and unencumbered was shown and in and of itself starting the bus without jolt or unusual movement is not negligence according to the great weight of authority. 14 Am.Jur.2d p. 437, “Carriers” § 1016,“ — Starting before passengers are seated”; 57 A.L.R.2d p. 5, Annotation; “Motor Carrier’s liability for injury to passenger by sudden stopping, starting, or lurching of conveyance.”

The only material issue was that which inquired whether there was negligence in Citran’s driver’s failure to warn plaintiff immediately prior to the application of the bus brakes. The doctrine of sudden emergency was plead and relied upon by Citran. There was no request for any special issue inquiring whether the manner of application of the brakes was negligent. If the driver of the bus was in fact confronted with a condition of sudden emergency occasioning the application of brakes which occasioned plaintiff’s fall there would have been no opportunity to warn plaintiff. Though plead there was no special issue inquiring whether a proper lookout was being kept. Of course such an issue would have related to a time prior to that upon which any emergency might have arisen and could have been a question for the jury’s consideration in arriving at a conclusion of whether the kind of emergency which might have been defined in the court’s charge was arisen or not.

The determinative question would appear to be whether or not, free of any negligence on his part, Citran’s driver was confronted with a sudden emergency calling for his immediate action in avoiding the passenger automobile which he testified was turned sharply into the traffic lane in front of him.

Sudden emergency was raised as an issue of fact to be considered by the jury by Citran’s evidence under its pleadings. Preliminary to consideration of propriety in the form of the definition of sudden emergency given in the charge there would be no doubt that to give a definition would be proper. It was of the form and not of the fact of the instruction of sudden emergency that plaintiff complained.

The following definition(s) were given:

“HIGH DEGREE OP CARE” means that degree of care which would have been used by a very cautious, competent, and prudent person under the same or similar circumstances.
“NEGLIGENCE” means failure to use a high degree of care; that is to say, failure to do that which a very cautious, competent, and prudent person would have done under the same or similar circumstances, or doing that which a very cautious, competent, and prudent person would not have done under the same or similar circumstances.
When a person is confronted by an emergency arising suddenly and unexpectedly, not proximately caused by any negligence on his part, and which to a reasonable person requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or a failure to use a high degree of care, if, after such emergency arises, he acts as a very cautious, competent, and prudent person would have acted under the same or similar circumstances.

Jones v. McCoy, 466 S.W.2d 667 (Tex.Civ.App.—Eastland 1971, no writ history) is relied upon by plaintiff to support her contention that to give the above instruction upon sudden emergency amounted to a comment on the weight of the evidence in this case, in that by the words “[w]hen a person is confronted by an emergency .” the court assumed that there was an emergency when existence of such was a controverted fact. These same words were used in the instruction in the charge of the court in Jones, supra. It is by a degree of implication that the opinion in Jones, supra, might be said to have so held. In that case there were no special issues inquiring as to whether there was a sudden emergency as by the usage of Texas courts prior to the opinion of Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex.1971). The opinion in Jones, supra, was handed down by the Eastland court of civil appeals on March 26, 1971, and there was no motion for rehearing filed in that case, and the supreme court opinion of Yarborough, supra, was handed down April 28, 1971. Obviously the Eastland court gave consideration to a need for special issues and believed that absent such the instruction should not have been given. The supreme court opinion instructed that the concept of both the sudden emergency and unavoidable accident doctrines would be better served by explanatory charges or definitions in the charge than by submitting special issues. The opinion in Jones, supra, must be examined carefully as it would necessarily be qualified by the instruction of the supreme court in Yarborough, supra.

Our holding is that where there exists the question whether in fact a litigant is or not confronted with a condition of sudden emergency the giving of the instruction upon sudden emergency as was given in the instant case, i. e., prefaced by the words “[w]hen a person is confronted by an emergency . . .”, would constitute a comment on the weight of the evidence. This would be true in this case because the jury would understand that it was the opinion of the court that free of any negligence on his part, the Citran bus driver was confronted with a condition of emergency requiring his immediate action without time for deliberation when he applied the brakes.

Though in the case before us the giving of an instruction would have been proper if in a form not incorrect under the circumstances, we consider the following from Jones, supra, to be appropriate, viz: “The sudden emergency instruction struck directly at the heart of these two [plaintiff’s] issues which denied appellant recovery. Also, we feel the unnecessary instruction amounted to a comment on the weight of the evidence in that the trial court improperly emphasized appellee’s theory of no negligence. Furthermore, the jury was instructed, in effect, that in answering any issue concerning negligent conduct the standard definition of negligence must be viewed in connection with the express provisions of the sudden emergency instruction which specifically stated that certain conduct would not constitute negligence. Thus, the traditional definition of negligence was departed from and a new standard was adopted for measuring appellee’s conduct.”

On the matter of prejudice; though plaintiff placed the bus driver for Citran on the stand to testify in making out her case (at the time he was no longer the employee of Citran) her examination stopped short of introducing evidence that he was confronted with a condition of emergency. That proof was fully made out by witnesses placed on the stand by Citran. In other words there was nothing in the proof of a plaintiff’s prima facie case which established the fact of a defendant’s confrontation with an emergency situation. There was not a waiver of the plaintiffs right to complain of the instruction because of her own evidence.

In view of the fact that we sustain the point by which plaintiff complains of the comment on the evidence by the instruction in the court’s charge, we forego discussion on others of the points of error presented. They have been severally considered and we overrule all of them.

Judgment is reversed, with the cause remanded to the court below for retrial.