author: MOORE, Justice.

text:
    Mary OWENS, Appellant, v. J. Hayward GRIMES et ux., Appellees.
    No. 929.
    Court of Civil Appeals of Texas, Tyler.
    July 15, 1976.
    Rehearing Denied Aug. 26, 1976.

      William D. Lawrence, Jr., Lawrence & Lawrence, Tyler, for appellant.
    Henry T. Skelton, Kugle, Douglas & Skel-ton, Athens, for appellees.
   MOORE, Justice.

Appellees-plaintiffs, J. Hayward Grimes and wife, Jennifer Grimes, brought suit against appellant-defendant, Mary A. Owens, for wrongful foreclosure of a deed of trust. Appellees alleged that on November 29, 1973, they purchased a tract of land from appellant for the total consideration of $111,000.00 paying the sum of $23,000 down and executing a promissory note secured by a deed of trust for the balance in the amount of $88,000, payable in annual installments of $4,400, the first of which was due on November 29, 1974. Appellees alleged in their petition that appellant wrongfully foreclosed the deed of trust without just cause and prayed for a judgment setting aside the trustee’s deed, and in the alternative sought to recover damages for wrongful foreclosure. Appellant denied generally the allegations of the petition and by way of a cross-action sought a judicial foreclosure of her vendor’s lien alleging that after the foreclosure of the trustee’s deed appellees became delinquent in the payments due on the note. She prayed that in the event the court found the trustee’s sale to be void that she have judgment for a judicial foreclosure of the vendor’s lien. After a trial before the court, sitting without the aid of a jury, the trial court, upon finding that foreclosure of the deed of trust was wrongful, awarded appellees damages in the amount of $29,600 and refused to grant appellant any relief on her cross-action. Appellant duly perfected this appeal.

We affirm.

Before discussing the appellant’s points of error, we will undertake to summarize the material findings of fact filed by the trial court. The court found (1) that appellant Mary Owens was the owner and holder of a deed of trust dated November 29,1973, executed by appellees, securing a vendor’s lien note given as a part of the purchase price of the property in question; (2) that the first installment on the note was due and payable on November 29,1974; (3) that on August 12,1974, appellant instructed the trustee, William D. Lawrence, Jr., to post notice of sale; (4) that on September 3, 1974, the property in question was sold at the trustee’s sale to appellant, Mary A. Owens, for a consideration of $88,000; (5) that the foreclosure and trustee’s sale was affected pursuant to paragraph 5(e) providing that the mortgagors would keep the improvements in good repair and would not remove same or any part thereof and paragraph 5(g) providing that the mortgagors would not allow any liens to be affixed against the property of any character whatsoever; (6) on the dates of the foreclosure and trustee’s sale mentioned above, plaintiffs were not in default in payment of money due and owing under the promissory note secured by the deed of trust and security agreement mentioned above; (7) that on the dates of posting notice and of trustee’s sale, the only ground relied on by defendant, Mary Owens, to show a violation of Paragraph 5(e) of the deed of trust was that plaintiffs had dismantled one or more of the chicken laying sheds located on the premises; (8) that on the dates of posting notices and of trustee’s sale, the only grounds relied upon by defendant, Mary Owens, to show violations of Paragraph 5(g) of the deed of trust were that plaintiffs had given a second lien on the premises to Miracle Building Materials of Dallas to secure payment for aluminum siding, and that plaintiffs had given a second lien on the premises to Citizens First State Bank of Malakoff, Texas, to secure payment for a kitchen stove and carpeting; (9) that defendant, Mary Owens, gave permission to plaintiffs, at or about the time plaintiffs took possession, to dismantle and remodel the chicken laying sheds in question, and that plaintiffs reasonably relied on that permission. Defendant, Mary Owens, had knowledge that plaintiffs relied on the permission given; (10) that defendant gave her permission to plaintiffs to create the indebtedness and lien to Miracle Building Materials of Dallas, Texas, for aluminum siding, and that plaintiffs reasonably relied on that permission to the knowledge of defendant, Mary Owens. The court finds that the defendant received a commission from Miracle Building Materials of Dallas, Texas, for aiding Miracle Building Materials in selling the aluminum siding to plaintiffs; (11) that during the tenure of plaintiffs on the premises, plaintiffs removed the carpet and stove from the kitchen and replaced these items with new carpets and a new stove. The court finds that defendant gave plaintiffs her permission for the old carpet and stove to be removed, and for a lien to be created in favor of Citizens First State Bank, Mala-koff, Texas. The court finds that plaintiffs reasonably relied on that permission and that defendant knew that plaintiffs were relying on the permission given; (12) that plaintiffs erected a metal barn on the premises after obtaining permission from defendant, and that plaintiffs reasonably relied on the permission of defendant in erecting the metal building. Defendant knew that plaintiffs were relying on her permission; (13) that defendant, by a course of action leading up to the foreclosure and trustee’s sale, forced plaintiffs to vacate and relinquish possession of the real estate in question; and (14) that appellees made valuable improvements on the property costing them the sum of $10,400. In its conclusions of law the trial court found (1) that defendant caused notice of the trustee’s sale to be posted on August 12, 1974, with the intent to injure and defraud plaintiffs; (2) that at the time of the sale of the described property in 1973, defendant had existing intentions to effect a foreclosure sale upon the grounds alleged in order to defraud plaintiffs of their money and property; (3) that on the dates of posting of notice of foreclosure and on the date of the trustee’s sale that defendant had no legal grounds to foreclose or to effect a trustee’s sale; (4) that defendant acted in bad faith in causing posting of notices of foreclosure and in causing the property to be sold at a trustee’s sale; (5) that to allow the defendant to reap the benefits of the labor and money which plaintiffs put into the property in question during their tenure would be inequitable and not in good conscience, and to allow defendant, Mary Owens, to be unjustly enriched at the expense of plaintiffs; and (6) that plaintiffs reasonably relied to their detriment upon promises made to them by defendant and have suffered out-of-pocket loss; and that defendant knew that plaintiffs were relying on her promises.

By her first point appellant takes the position that since the trial court found appellant had no legal grounds for foreclosure, the trustee’s deed was void and a nullity and passed no title. Therefore appellant argues that the foreclosure did not constitute an invasion of any of appellees’ rights. Consequently, appellant reasons that appellees suffered no injury and therefore were not entitled to damages. We cannot agree with this position.

In this jurisdiction a deed of trust is used in lieu of a mortgage to secure a debt created in the transfer of real property. Lucky Homes, Inc. v. Tarrant Savings Ass’n., 379 S.W.2d 386 (Tex.Civ.App., Fort Worth 1964), reversed on other grounds, 390 S.W.2d 473 (Tex.1965). The party for whose benefit the deed of trust is given is sometimes referred to as a trust deed mortgagee.

Since appellant has no point of error challenging any of the trial court’s findings of fact, the issue raised by this point is limited to the question of whether a mortgagee who wrongfully forecloses and takes possession of the property covered by a deed of trust may be held liable for damages.

It is generally held that where an illegal or wrongful sale of the property is made under a power of sale contained in a mortgage or deed of trust, the mortgagee or trust deed mortgagee will be held liable to the mortgagor for the damages sustained. 59 C.J.S. Mortgages § 603, p. 1068 (1949); League City State Bank v. Mares, 427 S.W.2d 336 (Tex.Civ.App., Houston [14th Dist.] 1968, writ, ref’d n. r. e.); Black v. Burd, 255 S.W.2d 553 (Tex.Civ.App., Fort Worth 1953, writ ref’d n. r. e.); John Hancock Mutual Life Ins. Co v. Howard, 85 S.W.2d 986 (Tex.Civ.App., Waco 1935, writ ref’d); Rogers v. Barnes, 169 Mass. 179, 47 N.E. 602, 38 A.L.R. 145. Recovery of damages is allowed on the theory that the wrong committed somewhat resembles that of a conversion of personal property. Conversion of personal property is a tort growing out of the unlawful interference of possession giving the owner a cause of action against the wrongdoer even though the title to the property did not pass. John Hancock Mutual Life Ins. Co. v. Howard, supra.

Appellant, for the purpose of escaping liability, cannot be heard to say that she has not done what she intended to do, and what, on the face of the record, she appears to have done. To say that the appellees suffered no injury would be to ignore the fact that appellant not only deprived them of their right of possession but also slandered their title and thereby deprived them of their right to sell the property and redeem their equity therein. Under the state of the record and the unchallenged findings of fact, we hold that the trial court did not err in awarding appellees damages for the wrongful foreclosure.

By her second and final point, appellant argues that under the court’s findings the non-judicial foreclosure, as well as the trustee’s deed, was absolutely void and conveyed no title to her. Based on this premise she contends that the court erred in failing and refusing to order a judicial foreclosure in view of the undisputed proof showing appellees were in default on the payments on the note. We are not in accord with this proposition.

By her cross-action appellant sought a judicial foreclosure only in the event the prior non-judicial foreclosure was set aside. The judgment rendered by the trial court did not set aside the trustee’s deed under which appellant holds title. The judgment was only for damages for wrongful foreclosure. While the trial court’s findings of fact would no doubt have formed a sufficient basis for a judgment setting aside the prior foreclosure and trustee’s deed, the court did not set it aside for the simple reason that appellees abandoned their equitable claim for cancellation and elected to pursue their legal action for damages. Consequently, the trustee’s deed to appellant continues to stand as a muniment of title. Appellees, having elected to let the sale stand and recover at law for damages, are forever barred from attacking the trustee’s deed. Peterson v. Kansas City Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770, 775 (1936), 108 A.L.R. 583. The regularity of the exercise of the power of sale may be disputed only by the mortgagor or his privies insofar as the inquiring relates to the, divesting of the mortgagor’s title and the investing of the title in the purchaser. 39 Tex.Jur.2d Mortgages and Trust Deeds, sec. 157, p. 217; Estelle v. Hart, 55 S.W.2d 510 (Tex.Com.App.1932, jdgmt. adopted). Since the only parties having a right to repudiate the sale elected to let the sale stand, appellant will be held to have acquired title by virtue of the trustee’s deed. It follows that appellant was not entitled to a judicial sale.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SHANNON, Justice.

license: Public Domain

text:
    Max T. DRURY, d/b/a Drury Roofing and Sheet Metal Company, Appellant, v. C. L. REEVES et al., Appellees.
    No. 12436.
    Court of Civil Appeals of Texas, Austin.
    July 21, 1976.

      Malcolm Robinson, Hooper, Robinson & Moeller, Austin, for appellant.
    Rogan B. Giles, Austin, for appellees.
   SHANNON, Justice.

Appellees, C. L. Reeves and L. W. Prokop, filed suit against appellant, Max T. Drury, doing business as Drury Roofing and Sheet Metal Company, in the district court of Travis County. Appellees sought to recover damages for the breach of a construction contract, or alternatively, for the breach of express and implied warranties. Upon trial to the court, judgment was entered for appellees for the total sum of $8,303.09. We will affirm that judgment.

Appellees pleaded that in December, 1968, they were engaged in the construction of an apartment complex in Austin known as Villa Duval. Appellees entered into a written contract with appellant whereby appellant was to furnish labor and material to install the sheet metal and roofing work on the job. Appellees alleged further that appellant expressly and impliedly warranted that the work and the materials were fit for the purpose for which they were intended.

In late 1968, appellant began the roof work, and he completed the job in May of 1969. Appellant received final payment on the job in September, 1969.

The roof which appellant installed leaked during construction and continued to leak after the construction was completed. From May, 1969, through July, 1970, appellant repaired the roof without charging ap-pellees. Thereafter and until April, 1971, appellant continued to repair the roof, but he charged appellees for those repairs. The roof leaks resulted in damage to the interi- or walls, carpets, and furniture.

After the entry of judgment, appellant requested the court to file findings of fact and' conclusions of law. Though the court failed to prepare such findings and conclusions, appellant did not call such failure to the court’s attention within the time allowed by Tex.R.Civ.P. 297. As a result, appellant may not complain of the failure of the court to file findings of fact and conclusions of law. Tex.R.Civ.P. 297.

Appellant’s first point of error is that part of the sum of money awarded by the judgment was grounded upon “evidence not admitted” or upon hearsay evidence. We construe the point to be a “no evidence” point.

Appellant’s argument under point one centers upon the admission in evidence of appellees’ exhibit 9. In preparation for trial appellees had their accountants prepare a summary of the money spent by them in their effort to repair the faulty roofs of Villa Duval. The accountant’s summary was identified by appellees’ witness and marked by the court reporter as exhibit 9.

Over appellant’s objection, the district court admitted exhibit 9 in evidence. In receiving the exhibit the court expressly stated that the exhibit was not received as proof of the statements and bills it purported to summarize. Appellant says that because the exhibit was hearsay, there was no evidence to support that part of the judgment.

Appellant’s argument overlooks the testimony of Jack Reeves. Appellees called Reeves, their construction superintendent, to prove their damages occasioned by the faulty roofing. Reeves supervised the repair of the roof of Villa Duval, although most of the work was done by another roofing contractor. Reeves was familiar with charges for the various kinds of work done. By reason of his knowledge and experience in the construction business and by reason of his personal supervision of the repair work on the roof, Reeves was qualified to testify, and did in fact testify that appellees’ efforts to repair the roof were necessary and the sums expended by appel-lees and others for appellees’ benefit were reasonable and necessary to effect the roof repairs. Point of error one is overruled.

Point of error two is that the part of the judgment awarding appellees the sum of $1,134.65 for damage to carpeting was so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

Appellees’ position in this connection was that the faulty roof permitted leaks which damaged carpeting in several apartments. The evidence concerning the carpet repairs consisted of the testimony of Clarence Run-dell. Rundell had been in the floor covering business for many years. He testified that he made the repairs to the carpets in Villa Duval. He marked the invoices which he sent appellees to distinguish damage to the carpets occasioned by causes other than roof leaks. He testified that the total amount of the carpet repairs made necessary by roof leaks was $1,134.65 and that such amount was a fair and reasonable charge for the work. Although Rundell’s memory was not very clear, the district court was the judge of the credibility of the witness and the weight to be given his testimony. Sauer v. Johnson, 520 S.W.2d 438 (Tex.Civ.App.1975, writ ref’d n. r. e.). The court’s determination was not so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

Appellant also complains under point two that there was no pleading to support the admission of evidence concerning a recovery for repair of the carpets caused from leakage. Appellees pleaded in this connection that the leaks caused by the faulty roofing “. . . poured water into numerous apartments doing damage to the walls, carpeting, furniture and appliances . and causing plaintiffs [appellees] to expend large sums of money to repair and restore the interior of the affected apartments.” Appellant did not except to the pleading. The quoted pleading served notice upon appellant that appellees intended to prove the cost of repair and restoration of the carpeting, and that pleading was sufficient to permit the admission of the evidence.

Appellees filed suit more than two years, but less than four years, after their cause of action accrued. Appellant affirmatively pleaded that appellees’ suit was barred by the two-year statute of limitations. Tex. Rev.Civ.Stat.Ann. art. 5526(4). The failure of the district court to enter judgment for appellant grounded upon the two-year statute of limitations is the complaint of point of error three. Appellees claim, to the contrary, that the four-year statute of limitations is applicable. Tex.Rev.Civ.Stat.Ann. art. 5527.

Appellees’ suit was predicated upon a written contract rather than upon an oral contract. Appellant agreed in writing to do the roofing work on the Villa Duval. Appellant performed the work and appellees accepted the work. Appellees’ lawsuit was not based upon appellant’s failure to do something that he orally promised to do, but instead upon his failure to do in a good and workmanlike manner that which appellant agreed in writing to perform and did perform. Certain-Teed Products Corporation v. Bell, 422 S.W.2d 719 (Tex.1968).

A warranty which the law implies from the existence of a written contract is as much a part of the writing as the express terms of the contract, and the action to enforce such a warranty is governed by the four-year statute of limitations. Certain-Teed Products Corporation v. Bell, supra. Point of error three is overruled.

In his fourth point of error appellant complains that the judgment should be reversed for the reason that appellees were permitted to proceed to trial upon an untimely filed amended petition. That pleading was filed on August 28, 1975, and the case went to trial on September 4, 1975.

Texas R.Civ.P. 63 provides that amended pleadings may be filed within seven days of the date of the trial provided that leave of court be obtained. Rule 63 provides further that the court shall grant leave to file the amendment unless there is a showing that the amendment will operate as a surprise to the opposite party.

Prior to the beginning of the trial, the district court heard appellant’s oral motion to compel appellees to withdraw their trial petition. Counsel for appellant stated that he was “surprised” by the changes contained in that pleading. The court overruled appellant’s motion and permitted ap-pellees’ petition to remain on file. Appellant did not thereafter withdraw his announcement of ready, nor did he move for a continuance of the ease.

A comparison between appellees’ prior petitions and their trial petition shows that the only significant change made by appel-lees in their trial petition was in the amount of damages sought.

It is within the discretion of the trial court to grant or refuse the right to file the amended pleading within the seven-day period set out in Rule 63, and the trial court’s order will not be disturbed on appeal unless there is a clear showing of abuse of discretion. Dillingham v. Lynch, 516 S.W.2d 694 (Tex.Civ.App.1974, writ ref’d n. r. e.). In our view the amended pleading did not change appellant’s trial posture, and, as such, it could not have operated as a surprise within the contemplation of Rule 63. Therefore, the district court did not abuse its discretion in permitting the amended pleading to remain on file.

Appellant’s final point is based upon the court’s denial of his seventh special exception to appellees’ petition. Appellant claimed by his special exception that appel-lees improperly sought to recover for the cost of repairs to the roof for the reason that the proper measure of damage was the difference in value between the work appel-lees contracted for and the value of the work which appellees actually received.

The district court properly overruled appellant’s special exception. The measure of damages for defects which can be remedied without impairing the building as a whole is the reasonable cost of remedying the defects. Rogowicz v. Taylor and Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App.1973, writ ref’d n. r. e.), Badeaux v. Cohen, 437 S.W.2d 310 (Tex.Civ.App.1969, no writ).

The judgment is affirmed.

        . Texas Rev.Civ.Stat.Ann. art. 5526(4) provides that, “Actions for debt where the indebtedness is not evidenced by a contract in writing,” must be filed within two years after the cause of action occurred.

      . Texas Rev.Civ.Stat.Ann. art. 5527 provides that, “Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing,” must be filed within four years after the cause of action occurred.


text:
    Hugh L. HODGES, Appellant, v. The STATE of Texas and the City of Everman, Appellees.
    Motion No. 15271.
    Court of Civil Appeals of Texas, Austin.
    July 21, 1976.

      Clyde M. Marshall, Jr., Callaway & Marshall, Fort Worth, for appellant.
    John L. Hill, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for the State of Texas.
    Elvin A. Tackett, Bedford, for City of Everman.
   SHANNON, Justice.

Appellant, Hugh L. Hodges, has filed with the Clerk of this Court a motion to permit the filing of a transcript in a cause from the district court of Travis County.

The matter to be determined is whether or not the appellant’s amended motion for new trial was timely filed by appellant with the district clerk of Travis County. Whether the amended motion was timely filed, in turn, depends upon the construction and application of that part of Tex.R.Civ.P. 5, which concerns the mailing of a motion one or more days before the last day for filing the motion. If appellant’s amended motion for new trial was not filed within the required time, then appellant’s appeal bond was not filed on time, and this Court does not have jurisdiction to entertain the appeal.

The sequence of events is as follows:

February 17, 1976 Judgment was entered.
February 27, 1976 Appellant’s motion for new trial was filed.
March 19, 1976 District clerk received appellant’s amended motion for new trial in United States mail.
March 19, 1976 District clerk filed appellant’s amended motion for new trial.
June 1, 1976 Appellant filed appeal bond.

Texas R.Civ.P. 5 provides in pertinent part as follows: “. . . if a motion for new trial ... is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail one day or more before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time; provided, however, that a legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.”

As is evident, the district clerk received and filed the amended motion for new trial twenty-one days after the original motion for new trial was filed. Under Rule 5, however, the amended motion was timely filed, if appellant can demonstrate to this Court that he mailed the amended motion to the district clerk on or before March 17, 1976.

Under Rule 5 a party may make a prima facie case if he produces the envelope or wrapper bearing a legible postmark affixed by the United States Postal Service showing that the motion was deposited in the mail one or more days before the last day for filing the same. In the case at bar appellant was unable to produce the envelope in which he mailed the amended motion to the district clerk. Appellant, as a result, was not able to avail himself of that manner of proof.

We read Rule 5 to contemplate other modes of proof of the date of mailing. In a sworn motion appellant’s counsel stated that he prepared and mailed the amended motion for new trial to the district clerk of Travis County on March 17, 1976, in an envelope properly addressed with sufficient postage prepaid. Counsel for appellant further swore that the amended motion was sent by first-class United States mail in an envelope that was deposited in the United States mail on March 17, 1976, by placing the same in the official United States mail receptacle located in the lobby of the W. T. Waggoner Building, Fort Worth, Texas.

Appellees have not by counter-affidavit contested appellant’s proof.

We are of the opinion that appellant’s proof is in compliance with Rule 5, that the amended motion for new trial was mailed on March 17, 1976, that the amended motion for new trial was timely filed, and that this Court has jurisdiction to entertain this appeal.

Appellant’s motion to file the transcript is granted.

Motion granted.


author: HALL, Justice.

text:
    Peter Lawrence HATFIELD, Appellant, v. Sharlene Kay CHRISTOPH, Appellee.
    No. 5601.
    Court of Civil Appeals of Texas, Waco.
    July 22, 1976.

      Gerald W. Livingston, Bean, Francis, Ford & Wills, Dallas, for appellant.
    James A. Tatem, Jr., Mesquite, for appel-lee.
   HALL, Justice.

The appellee brought this suit for the balance allegedly due her from the appellant under the terms of a judgment rendered by the Circuit Court for Linn County, Oregon. The appellant responded with a general denial. The court below granted the appellee’s motion for summary judgment and awarded her $34,391.93.

The judgment sued upon dissolved the marriage of the parties before us and, incorporating their property settlement agreement, awarded the appellee a recovery of $34,756.00 from the appellant. The judgment begins, “This matter having come on to be heard the 12th day of June, 1973”; and it ends, simply, “Dated this 13th day of June, 1973, and entered nunc pro tunc the 12th day of June, 1973.”

Both parties were before the Oregon court when the case was heard on June 12, 1973; and the court’s jurisdiction is not in question. However, the appellant contends the “nunc pro tunc” recitation in the Oregon judgment denotes the correction of another judgment. He argues that without some reason stated in the nunc pro tunc order for its entry it is invalid or that, at least, a fact question is raised as to whether another judgment is outstanding. We disagree.

In Texas, nunc pro tunc orders are properly used to correct clerical errors in judgments. When this is done, the nunc pro tunc judgment should show the reason for its entry. Quintanilla v. Seagraves Ford, Inc., 522 S.W.2d 274, 277 (Tex.Civ.App.—Corpus Christi, 1975, no writ hist.). But they are also proper in two other instances. “The first is where the trial has been held and the case is ripe for judgment, but for some reason no judgment has been rendered. The court may render judgment nunc pro tunc as of the date it should have been rendered. The second is where a judgment has been rendered but was not entered on the minutes of the court. The court may order the judgment to be entered as of the date it was rendered.” Reavley and Orr, Judgments, 25 Baylor Law Review 198 (1973); Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961, 962; Sigler v. Realty Bond & Mortgage Co., 135 Tex. 76, 138 S.W.2d 537, 541 (1940). The nunc pro tunc order in question appears on its face to fall squarely within the first instance. There is nothing in the record to show it does not. Presumably it was made on a similarly legal basis in Oregon and is valid. This presumed validity cannot be overthrown by another presumption. Dowden v. Fischer, 338 S.W.2d 534, 537 (Tex.Civ.App.—Waco 1960, no writ hist.). The appellant could have directly tested the propriety of the order in the Oregon courts. He may not do so collaterally, here. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 220 (1943).

The Oregon judgment was entitled to full faith and credit under the record. It supports the summary judgment.

The remaining complaint relates to an allowance of post-judgment interest on the Texas judgment. It does not show reversible error, and we need not discuss it.

The judgment is affirmed.


author: DUNAGAN, Chief Justice.

text:
    Calvin MAYFIELD, Appellant, v. EMPLOYERS REINSURANCE CORPORATION, Appellee.
    No. 957.
    Court of Civil Appeals of Texas, Tyler.
    July 29, 1976.
    Rehearing Denied Aug. 26, 1976.

      Bill D. Rosenstein, Stephens, Corn & Ro-senstein, Tyler, for appellant.
    Byron L. Falk, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lee.
   DUNAGAN, Chief Justice.

This workmen’s compensation case involves the admissibility of evidence of other injuries than the one sued upon and the sufficiency of the evidence to support the jury’s finding that the claimant was not injured on the day in question. We affirm the judgment of the trial court.

Calvin A. Mayfield claimed that he was injured on July 24, 1973, when boxes which he was stacking for Texas Tubular Products fell on him. The award of the Industrial Accident Board was appealed by Employers Reinsurance Corporation, the insurer of Texas Tubular Products, to the 7th Judicial District Court.

Mayfield’s treating physician, Dr. E. L. Mahon, testified that Mayfield was suffering from neck and back strain and dysuria (difficulty in urination). He further testified that the July 24, 1973, injury was a cause of this incapacity and that other injuries were not the sole cause of this incapacity. Employers Reinsurance Corporation then made reference to and introduced evidence of other injuries to Mayfield’s back, neck and head. There followed testimony from the examining physician and a coworker which tended to show that Mayfield had not suffered an injury on July 24, 1973.

The jury, in response to Special Issue No. 1, found that Mayfield was not injured on July 24, 1973. A take nothing judgment was rendered thereon and Mayfield has perfected this appeal from that judgment.

Appellant’s points of error are divisible into two basic categories, to-wit: (1) whether evidence of other injuries was improperly admitted; and (2) whether the jury’s finding that appellant was not injured on July 24, 1973, was contrary to the great weight and preponderance of the evidence. Appellant also argues that the evidence of other injuries caused the jury to believe that appellant was a chronic claimant and to find that he was not injured on July 24, 1973. We recognize that danger and therefore deal first with the question of the admissibility of the evidence of other injuries.

Appellant’s first point is that all evidence of other injuries to a compensation claimant is inadmissible until the defendant has first established by expert medical testimony that the claimant’s present incapacity was caused solely by those other injuries; i. e., that before any reference may be made to other injuries, such evidence must be predicated upon medical testimony that those other injuries were the sole cause of the claimant’s incapacity.

“The only reason evidence of other injuries is admissible at all in a compensation case is that it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed.” Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963). If other injuries than the one sued on caused the present incapacity, a defense to the action exists under Tex.Rev. Civ.Stat.Ann. art. 8306, Sec. 12c (Supp. 1976). See Hartford Accident and Indemnity Co. v. McCardell, supra, at 336. The 1971 amendment of that provision limited that defense to instances when the other injuries constituted the sole producing cause of the claimant’s incapacity. Texas Employers’ Ins. Ass’n v. Haunschild, 527 S.W.2d 270 (Tex.Civ.App., Amarillo 1975, writ ref’d n. r. e.). Thus, evidence of other injuries would seem to be admissible only if offered for the purpose of establishing those injuries as the sole producing cause of the present incapacity. Appellant’s first point, however, turns on the necessity of a predicate for such evidence rather than the purpose for which such evidence is offered. Appellant cites no authority for the necessity of such a predicate and we have found none. The establishment of any causal relationship between other injuries and present incapacity would be extremely difficult without some reference to or evidence of those injuries. We overrule this point.

Appellant’s second point contends that the trial court erred by admitting into evidence copies of notices of injuries which he had filed with the Industrial Accident Board. Before discussing this contention, it will be helpful to describe the contents of those documents.

1965 injury. The notice of this injury lists M. Clint Brown Co. as appellant’s employer and contains the following description of the accident: “[wjhile handling heavy pipe and severely stressing and straining, (appellant) severely injured his entire back and spine. . . .”

1966 injury. This injury occurred when appellant was employed by Hill Bros. Fuel Oil Company. The notice of injury states that while working inside a tank, appellant fell and hurt his back and legs.

1967 injury. The description of this accident states that while appellant was unloading steel, he tripped and the piece he was carrying fell on him and injured his back.

1970 injury. This injury occurred when appellant was employed by Petroleum Dehydrating Company. According to the notice of injury, appellant was cleaning the inside of an oil storage tank when a motorized scoop hit him in the head and neck and injured his head, neck, back and body generally.

1971 injury. The notice of injury lists Henderson Clay Production as the employer. The notice states that while stacking bricks, appellant “fell off a 5 foot high car with brick falling down on top of [him] permanently injuring all nerves, leaders and ligaments in [his] back. . . .”

May 1973 injury. This notice of injury states that appellant was employed by the Flanders Chemical Company and that while unloading chemicals from a truck, appellant slipped and fell 8 to 10 feet to the ground. Appellant claimed an injury to his neck, arms, back and his body in general.

These notices were offered into evidence as a group during the cross-examination of appellant. The only objection to the introduction of that evidence was “ . that it’s not relevant to the matter before us; that it’s highly prejudicial; and it’s an attempt to prove prior claims . . ..”

Appellant’s objection was basically that the documents were “irrelevant”. Such a general objection does not enable the trial court to make an intelligent ruling or permit the offering party to remedy the defect and is, therefore, insufficient to require consideration by an appellate court. Citadel Construction Company v. Smith, 483 S.W.2d 283, 286 (Tex.Civ.App., Austin 1972, writ ref’d n. r. e.); Traders & General Ins. Co. v. Haney, 312 S.W.2d 690, 692 (Tex.Civ.App., Fort Worth 1958, writ ref’d n. r. e.); 1 McCormick and Ray, Texas Law of Evidence, Sections 24 and 25 (1956). We conclude that thfe trial court properly overruled appellant’s objection as too general. The record indicates that appellant’s complaint regarding this evidence was, more specifically, that it could have no bearing on whether the injury sued on caused the present incapacity. Assuming that the trial court so understood appellant’s objection, we nevertheless affirm the overruling thereof because that evidence could have had such a bearing.

Whether evidence of injuries other than the one sued on might have some bearing upon the cause of the present incapacity should be determined by the nature of those other injuries. For example, a prior hand injury could have little, if any, bearing on the cause of a back incapacity. The injuries described in these notices, however, each involved appellant’s back and could have been the cause of the alleged incapacity. Evidence of other back injuries similar to the one sued on has been held admissible in a workmen’s compensation case. See Hartford Accident and Indemnity Co. v. McCardell, supra, at 338. Appellant argues that the absence of medical testimony establishing a causal connection between the prior back injuries and the present back incapacity rendered the notices inadmissible. We disagree. Evidence of other injuries is admissible if it might have some bearing on the question of whether the injury sued on is the producing cause of any incapacity claimed. Hartford Accident and Indemnity Co. v. McCardell, supra, at 337. While such medical testimony might be necessary when the possibility of the causal connection is not apparent, that possibility was manifest here.

Appellant’s second point also complains that the notices of injury were hearsay and, therefore, inadmissible. Although this ground may well have been valid as to at least some of those documents, this objection was never made in the trial court. Failure to make a proper objection to evidence which is inadmissible because in violation of one of the exclusionary rules operates as a waiver of any complaint based on the admission of that evidence. Eubanks v. Winn, 469 S.W.2d 292, 296 (Tex.Civ.App., Houston [14th Dist.] 1971, writ ref’d n. r. e.); 1 McCormick and Ray, Texas Law of Evidence, Sec. 31 (1956). We overrule this portion of appellant’s second point, as well as appellant’s fourth point, on the ground that appellant waived any error by failure to object.

Appellant’s third point is that the trial court erred in admitting testimony showing the fact and amount of other settlements. Appellant argues that such evidence is inadmissible for any purpose.

The testimony referred to was that of appellant on cross-examination. This testimony was to the effect that appellant had settled an August 1974 injury for $850, a May 1973 injury for $750, and a February 1973 injury for $1,400. Appellant’s objection to the first question about settlements was overruled and the jury was instructed to consider the evidence only on the issue of whether any compensation should be paid in a lump sum.

Evidence of other settlements recently received by a compensation claimant is admissible when the claimant seeks a lump sum recovery, rather than installments, on grounds of hardship. Jones v. Travelers Insurance Co., 374 S.W.2d 779, 783 (Tex.Civ.App., Beaumont 1964, writ ref’d n. r. e.); General Accident Fire and Life Assurance Co. v. Coffman, 326 S.W.2d 287, 291 (Tex.Civ.App., Waco 1959, writ ref’d n. r. e.). Here, appellant sought a lump sum recovery on grounds that installment payments would result in a hardship. Also, the only settlements inquired about in the presence of the jury were received within three years of the trial. We conclude that this evidence was admissible on the fact issue of hardship.

The fifth and final evidentiary point complains of references and inquiries as to whether other injuries occurred “on the job.” Appellant argues that such references and inquiries were intended to establish a connection between other injuries and the fact of employment rather than between other injuries and the cause of the present incapacity.

Evidence that other injuries occurred when appellant was employed would not have any bearing on whether the injury sued on was the cause of the alleged incapacity; this evidence was inadmissible under Hartford Accident and Indemnity Co. v. McCardell, supra. We cannot, however, agree with appellant’s conclusion that the evidence that some of the injuries occurred “on the job” prejudiced the jury against him.

The jury was aware, through other admissible evidence, of eleven other similar injuries to, and several claims by, appellant. The fact that seven of these injuries occurred on the job would not, in itself, cause the jury to believe that appellant was a chronic claimant. While evidence of the occurrence of eleven other injuries and claims could so prejudice a jury, evidence of the location of those occurrences could not. We conclude that any error in admitting evidence that some of the other injuries occurred on the job did not amount to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434. We overrule this point of error and turn to appellant’s sixth point attacking the finding of the jury.

Special Issue No. 1 inquired “[d]o you find from a preponderance of the evidence that on or about the 24th of July, 1973, the Plaintiff, Calvin A. Mayfield, sustained an injury to his body?” The jury’s answer, “[w]e do not”, made further answers unnecessary. Appellant contends that the jury’s answer to Special Issue No. 1 was against the great weight and preponderance of the evidence. We must weigh all of the evidence in the case in determining this point. In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660, 662 (1951).

Appellant testified as follows: that on July 24, 1973, he was stacking boxes for Texas Tubular Products; that each box weighed at least 175 pounds; that he was stacking the boxes “nine, ten and eleven high” when “something pulled aloose in the low part of my stomach, and I felt a hot pain, and my back also started hurting, and I fell and the box fell on me”; that the box struck him on the low part of his stomach; and that he was taken to a hospital where he was examined by Dr. Orten.

Ira Lampkin, who was working with appellant on July 24, 1973, testified that each box weighed approximately 50 pounds and was stacked four or five high. Lampkin stated that he turned around and saw appellant lying on the floor but that he neither heard nor saw any fallen boxes. On cross-examination by appellant, Lampkin stated that he was unable to say whether or not appellant had an accident on July 24, 1973.

Dr. Orten testified upon direct examination by appellee that he could not find anything wrong with appellant on July 24, 1973, and instructed him to return to work. Dr. Orten further testified that he prescribed a muscle relaxant because appellant said his back hurt but that he (Dr. Orten) “could find no evidence of any injury.”

On July 27,1973, appellant was examined by Dr. Mahon who testified that appellant had pain and tenderness in the lower stomach area and pain and limited motion in the lower back. Dr. Mahon also stated that he felt that appellant was having bladder problems and muscle or ligament strain in the neck and lower back. On cross-examination Dr. Mahon testified that the urologist to whom he had sent appellant for the bladder problem could not discover any problem. Dr. Mahon further testified that his opinion regarding appellant’s July 24, 1973, injury was necessarily based upon appellant’s statements.

We have thoroughly examined the whole record. On the basis of that examination, we cannot say that the jury’s finding to Special Issue No. 1 was so contrary to the great weight of the evidence as to be manifestly unjust.

Accordingly the judgment of the trial court is affirmed.


text:
    Earther MILLS et al., Appellants, v. CITY OF DALLAS et al., Appellees.
    No. 5562.
    Court of Civil Appeals of Texas, Waco.
    Aug. 12, 1976.
    Rehearing Denied Aug. 26, 1976.

      David K. Line, Robert W. Hartson, Inc., Dallas, for appellants.
    T. Alex Eastus, Dallas, for City of Dallas.
    W. F. Denman, Jr., Asst. Dist. Atty., Dallas, for County of Dallas, and Southwest Institute of Forensic Science.
   HALL, Justice.

The plaintiffs are the surviving wife and children of Emmitt Mills. They brought this suit for damages against the City of Dallas, the County of Dallas, the Office of the Dallas County Medical Examiner, and the Southwest Institute of Forensic Sciences, alleging that all of the defendants negligently failed to timely notify them of the death of Emmitt Mills and that two of them intentionally caused or allowed his body to be used as a cadaver by medical students resulting in its mutilation. The trial court rendered summary judgment for the City on its plea that at all pertinent times it was engaged in a governmental function, and granted the other defendants’ pleas in abatement under the doctrine of sovereign immunity. We affirm these rulings.

The plaintiffs pleaded that while Emmitt Mills was en route on the City’s bus system to his place of employment with the City’s water department, and while he was waiting at a bus stop in downtown Dallas to change busses, he collapsed and died; that the City’s policemen delivered his body to Parkland Hospital in Dallas; that when Mr. Mills failed to return home his family began looking for him and notified the Dallas Police Department he was missing; that the plaintiffs learned four days later he was dead; that during this time the body of Mr. Mills was delivered to the Dallas County Medical Examiner and then to the Southwest Institute of Forensic Sciences, at Dallas, where it was cut open and mutilated by medical students or other personnel without the plaintiffs’ consent or authority; and that the defendants failed to notify any of the deceased’s relatives of Mr. Mills’ death, although at all pertinent times they “had the means to do so.” Additionally, the plaintiffs pleaded that the failure of the defendants to notify the plaintiffs of the death constituted ordinary and gross negligence which proximately resulted in the mutilation and the plaintiffs’ damages; and that the Office of the Dallas County Medical Examiner and the Southwest Institute of Forensic Sciences intentionally withheld the body from the plaintiffs and intentionally caused or allowed the corpse to be mutilated, causing the plaintiffs’ damages. They prayed for actual and exemplary damages totaling $2,205,200.00.

In the absence of statutory or constitutional exceptions, a county and its governmental units are not liable for damages caused by the tortious acts of their agents and employees. 15 Tex.Jur.2d 330, Counties, § 106. Likewise, in the absence of statutory or constitutional exceptions, a city is not liable for damages caused by the negligence of its employees in the performance of governmental functions, which include the exercise of the city’s police power. Meska v. City of Dallas, 429 S.W.2d 223, 224 (Tex.Civ.App.—Dallas, 1968, writ ref.); 40 Tex.Jur.2d 311, Municipal Corporations, § 624. The plaintiffs recognize these rules. However, they contend that the deceased was a passenger on the City’s bus line (a proprietary function) and an employee of the City’s water department (a proprietary function) at the time of his death; that because of these two relationships the City violated a legal duty growing out of these proprietary functions when its employees, the policemen who found the deceased, failed to notify the plaintiffs of the death; and that the wrongful conduct of the other defendants was so intertwined with the City’s breach of duty an indivisible injury was inflicted by all of the defendants for which they should be held jointly responsible.

Generally, once a person has safely alighted from a public conveyance he is no longer a passenger and the transit company’s duty to him ceases. Wittkower v. Dallas Ry. & Terminal Co., 73 S.W.2d 867, 869 (Tex.Civ.App.—El Paso 1934, writ ref’d). This rule is applicable here in favor of the City. And the mere fact that Mr. Mills was en route to his place of employment with the City did not impose any duty on the City to him or the plaintiffs. 38 Tex.Jur.2d 327, Master and Servant, § 131.

The only duty of notice by the police officers was to report the death of Mr. Mills to the County’s medical examiner. § 7, Art. 49.25, Vernon’s Tex.C.C.P. The plaintiffs’ pleadings show this was done.

The judgment is affirmed.


author: HENLEY, Judge.

text:
    In re John E. MILLS, Respondent.
    No. 58878.
    Supreme Court of Missouri, En Banc.
    July 12, 1976.
    Rehearing Denied Sept. 13, 1976.
    Walter M. Clark and Edwin L. Noel, St. Louis, for informants.
    Welliver, Atkinson & Eng, Columbia, for respondent.
   HENLEY, Judge.

This is a disciplinary proceeding commenced in this court pursuant to Rule 5 by The Advisory Committee (informants) against John E. Mills (respondent) a member of the bar of this state residing at New London, in Ralls county. The information charges respondent with violation of Rule 4, Code of Professional Responsibility, canons 1, 5 and 7, and in particular DR1-102(A)(4) and (5); DR5-101(A); DR5-104(A); DR7-102(A)(3) and (8). After the pleadings were made up, a Master was appointed by the court to hold a hearing pertaining to the charges. He has done so and has made and filed his report, findings and conclusions. The Master’s recommendation is that respondent be disciplined. Informants and respondent, through their respective counsel, have filed briefs and presented oral argument.

The acts of respondent charged in the information and found by the Master to be in violation of the Code occurred in early 1974, while respondent was engaged in the private practice of law. Since those dates, respondent, on January 1, 1975, became Probate Judge and ex officio Magistrate of Ralls county, having been elected to that office in November, 1974.

We have reviewed and considered the whole record. There is no real dispute as to the facts and no need to lengthen this opinion with more than a brief summary of the evidence heard, reviewed and considered. It is sufficient to say that the evidence supports our decision that respondent must be disciplined.

We find from the evidence and conclude that in January, 1974, respondent was, and had been for several years, guardian of the estate of Kenneth Grayson, a Marine Corps veteran who had been determined to be an incompetent by the Probate Court of Ralls county; that respondent acquired in a trade in October, 1973 (but did not record the deed conveying the property to him), and desired to sell, a lot in New London with a mobile home located thereon which had been used as a residence; that his ward desired to purchase this lot and the mobile home for his residence; that on January 30, 1974, respondent, as guardian, filed a petition in the Probate Court of Ralls county seeking an order authorizing him to buy this real estate for his ward and did not reveal therein, but intentionally concealed, the fact that he was the owner and seller thereof; that the probate court, without hearing evidence thereon, sustained the petition and entered an order on the same day authorizing respondent, as guardian, to purchase this property for his ward for $8,000 (the price asked) on terms of $2,000 cash with the balance, payable in monthly installments, evidenced by a promissory note bearing interest at 8% per annum, to be secured by a deed of trust; that on January 31, 1974, respondent prepared and had the persons from whom he (respondent) had acquired the property in October, 1973, execute and acknowledge a general warranty deed conveying the lot and the mobile home direct from them to respondent as guardian for Kenneth Grayson; that respondent filed this deed for record February 4, 1974, but wrote across the top of the deed “Do not publish,” as a request to the local newspaper that news not be published regarding the deed; that on January 17, 1974, respondent wrote the regional attorney of the Veterans Administration enclosing a copy of the petition later filed in the probate court and a copy of the proposed order approving the purchase, but he intentionally concealed the fact that he was the seller; that the attorney replied to this letter by sending respondent a waiver of appearance on behalf of the Veterans Administration, but he testified that had he been aware of the fact that respondent was the seller he would not have approved the transaction.

As a matter of fact, respondent does not deny that he sold this property to his ward or that the property was owned by him. Nor does he deny that he did not inform the probate judge in person or by allegation in his petition as guardian that he owned the property and was the seller. Nor does he deny that he did not inform the Veterans Administration of these facts when he sought its waiver of appearance. Respondent knew, of course, that the probate court’s authority under § 475.450 to approve and authorize the purchase of real estate as a home for a veteran explicitly excludes real estate in which the guardian has an interest. Moreover, he knew the Canons and Disciplinary Rules of the Code of Professional Responsibility.

The conclusion is inescapable that respondent engaged in self-dealing, even if it be assumed that he did not make a profit on the sale. He improperly used his fiduciary position to make a sale of property he wanted to dispose of and whether he made a profit thereon is of no significance. Nor is it of any significance or excuse for respondent’s action that the ward knew that his guardian owned the property he wanted for a residence, or that the ward’s mother knew and approved of the purchase. The ward, although an adult, was incompetent, and respondent was in no position to deal with him at arm’s-length in a business transaction, because of the fiduciary relationship and because the ward was incapable of consenting to the purchase. Thus, respondent violated DR5-104(A). He concealed the fact of his ownership from the probate court and the Veterans Administration, one of which he knew had the obligation to deny him an order authorizing the purchase and the other he knew would not waive its appearance but would require further investigation and delay, if it had this information. In doing so respondent engaged in conduct involving deceit and misrepresentation, conduct prejudicial to the administration of justice. He violated DR1-102(A)(4) and (5).

Respondent contends that exclusive jurisdiction to initiate and prosecute disciplinary proceedings against an incumbent judge in this court is in the Commission on Retirement, Removal and Discipline; that the Advisory Committee was without jurisdiction or authority to do so notwithstanding the fact that the alleged acts were violations of the Code of Professional Responsibility committed while he was a practicing lawyer; that for these reasons this court is without jurisdiction to proceed in this case. Respondent argues that for the Advisory Committee to initiate and prosecute such proceedings against an incumbent judge in a ease which could lead to disbarment or other discipline for which the judge’s license to practice law would be cancelled, and one of his qualifications for the office thereby removed, would result in this Committee having the power indirectly to effect the removal of a judge from office. The Missouri cases he cites are not applicable or controlling in this case and the Florida and Oklahoma cases are not persuasive and, of course, not controlling.

We were presented with a matter somewhat analogous to this in In Matter of Hasler, 447 S.W.2d 65 (Mo.banc 1969). In Hasler we held that misconduct of a lawyer while serving as a judge was ground for and supported his disbarment as a lawyer after his resignation from the judgeship. Here, we are presented with an action to discipline a person, now serving as a judge, for misconduct committed while he was a lawyer and before he became a judge. Does his position on the bench render him immune to discipline for violation of the Code of Professional Responsibility applicable to all persons licensed to practice law in this state? Respondent argues that since he may not practice law while a judge, he may not be disciplined while a judge for misconduct committed while a lawyer. Although he may not practice law while a judge, he still holds a license to practice law (a qualification he must have to hold the office of judge), he is still a lawyer, and if he has violated the Code of Professional Responsibility he is, as an officer of this court, amenable to discipline even though it result directly in cancellation of his license and, thereby, lead indirectly to his removal from office. He may not take refuge in a judicial office from discipline for prior misconduct, the effect of which would be removal of one of his qualifications for occupying the refuge. To permit the use of a judicial office as such a sanctuary would be a travesty upon justice.

Respondent, asserting that the General Chairman of The Advisory Committee refused to divulge the name or names of complaining witnesses, contends that such refusal deprived him of his right to discovery and, thereby, his right to confront his accusers as guaranteed by Mo.Const. Art. I, § 18(a) and the Sixth and Fourteenth Amendments to the Constitution of the United States. He bases this contention on his assertion and argument that a disciplinary proceeding is quasi-criminal in nature and involves a valuable property right, the “right” to practice law; that therefore the rights of confrontation and procedural due process guaranteed by the state and federal constitutions apply fully.

The “confrontation” guarantee of the state and federal constitutions relates to criminal prosecutions; not to proceedings to discipline a lawyer for professional misconduct. A disciplinary proceeding is not a “criminal prosecution”; it is a proceeding “sui generis,” in the nature of an inquiry by the court into the conduct of its officer for the protection of the public, the courts and the profession. In re Conner, 357 Mo. 270, 207 S.W.2d 492, 499[14, 15] (Mo.banc 1948); In re Sparrow, 338 Mo. 203, 90 S.W.2d 401, 404[8] (banc 1935); In re Fenn, 235 Mo.App. 24, 128 S.W.2d 657 (1939). Hence, respondent was not denied rights protected by those provisions of the state and federal constitutions mentioned above.

His claim that by this proceeding he is being denied a valuable property right without due process of law is without merit. Rule 5 affords him due process and it has been followed faithfully in this case.

Nor is there any merit in his final contention that he was denied due process guaranteed by Mo.Const. Art. I, § 10 and § 1 of the Fourteenth Amendment. In this connection he asserts that he did not get a fair and impartial hearing before The Advisory Committee, because two members of that committee serving at the time of hearings before the Committee in this case were members of the Committee when a prior alleged violation by respondent of the Code was investigated and a decision made to file charges against him in this court. His argument seems to be that these two members could not have given him a fair “trial” in this case, because their efforts to discipline him in the earlier case failed. His contention is based on the false premise that The Advisory Committee “tried” him in this case. He cites in support of his position: In the Matter of Schlesinger, 404 Pa. 584, 172 A.2d 835, a 1967 decision of the Supreme Court of Pennsylvania in which the court addressed itself to the possible threats to due process guarantees when investigatory, prosecutorial and judicial functions are merged in one committee. From this point, he assumes and states that in his “trial” before The Advisory Committee he was denied due process because the investigatory, prosecutorial and judicial functions are merged under Missouri procedures in that Committee. He does not understand the Missouri procedure. The judicial function in this process is that of this court. The ultimate decision as to whether a member of the bar of this state has violated the Code of Professional Responsibility and whether he should be disciplined rests exclusively in this court. The function of The Advisory Committee is investigatory and prosecutorial only; it has no “judicial” function in this process. In re Sparrow, 338 Mo. 203, 90 S.W.2d 401 (banc 1935); In re Gamblin, 458 S.W.2d 321, 323[1, 2] (Mo.banc 1970).

As noted in the beginning, respondent must be disciplined. We have considered the extent to which he should be disciplined and conclude that neither the maximum: disbarment; not the minimum: reprimand, is appropriate. An indefinite suspension with leave to apply for reinstatement at a stated time appears to be appropriate.

Accordingly, respondent’s license to practice law is suspended indefinitely and he is granted leave to apply for reinstatement after the expiration of one year from the date of this opinion, upon a showing that he is then a person fit to be licensed to practice law in this state. The costs are taxed against respondent.

MORGAN, HOLMAN, FINCH and DON-NELLY, JJ., concur.

SEILER, C. J., and BARDGETT, J., would discipline but would limit to reprimand.

      . References to rules are to Missouri Supreme Court Rules.

      . The General Chairman of the committee disqualified himself from participating in the consideration of this matter while it was pending before the committee.

      .He is also charged with violation of EC9-6 of Rule 4. However, the ethical considerations (EC), unlike the Disciplinary Rules (DR), are not mandatory, but “are aspirational in character and represent the objectives toward which every member of the profession should strive.” See Rule 4, Preliminary Statement.

      . Both the probate judge and his clerk at the time, were dead when the Master heard this case October 29, 1975.

      . See § 475.450, RSMo 1969, a part of the Uniform Veterans’ Guardianship Law.

      . Created by the 1970 amendment of the judicial article of the Constitution. See Mo.Const. Art. V, § 27, as amended.

      . State ex inf. Shartel v. Brunk, 326 Mo. 1181, 34 S.W.2d 94 (banc 1930); State ex inf. McKittrick v. Williams, 346 Mo. 1003, 144 S.W.2d 98 (banc 1940); State ex inf. Barrett v. Hedrick, 294 Mo. 21, 241 S.W. 402 (banc 1922); State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477 (1905).

        .Chambers v. Central Committee of Oklahoma Bar Assn., 203 Okl. 583, 224 P.2d 583 (Okl.1950); In re Proposed Disciplinary Action, 103 So.2d 632 (Fla.1958).

      . See: In re Mills, 462 S.W.2d 700 (Mo.banc 1971) in which no discipline was imposed and the information dismissed in a memorandum opinion.


author: SWOFFORD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Samuel LEWIS, Appellant.
    No. KCD 27127.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Application to Transfer Denied Oct. 21, 1975.
    Modified on Court’s Own Motion Oct. 24, 1975.

      Willard B. Bunch, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   SWOFFORD, Presiding Judge.

A jury found the defendant guilty of first degree murder and fixed his punishment at life imprisonment. After an unavailing motion for a new trial, he appeals, raising a single point upon which he seeks reversal. He charges the trial court with error in refusing to give his proffered cautionary instruction to the jury covering the testimony of accomplices.

The instruction refused by the trial court was as follows:

“The court instructs the jury that you may convict the defendant on the testimony of an accomplice, if they believe the statements as given by the accomplice in his testimony are true in fact and sufficient in proof to establish the guilt of the defendant beyond a reasonable doubt; but the jury is instructed that the uncorroborated testimony of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime, as to matters connecting the defendant with the commission of the crime charged against him and identifying the defendant as the perpetrator thereof, ought to be received with great suspicion and caution by the jury; and they ought to be fully satisfied of the truth of the accomplice’s testimony beyond a reasonable doubt before they should convict the defendant on such testimony.”

Although MAI-CR does not cover this area, no claim is made by the state that this instruction does not properly declare the decisional law on this subject, nor was its refusal by the trial court based upon such premise. Rather, the question presented for review is whether, under the facts of this case, the testimony of the two accomplice witnesses offered by the state in the trial below was corroborated or uncorroborated by other evidence. Such a cautionary instruction need be given only when the testimony of an accomplice or accomplices in the crime is uncorroborated. State v. Merrell, 263 S.W. 118, 121[6] (Mo.1924).

A brief summary of the facts is necessary.

At about 11:00 p. m. on May 12, 1973, the appellant, Jerry Williams, Willie Dove, Nathaniel Johns, and Debra Clark had gone together from Kansas City, Missouri to Kansas. After engaging in a few hours of drinking in Kansas, the group returned to Kansas City, Missouri, during the early morning of May 13, 1973.

En route to Kansas City, Missouri, Debra Clark heard the four male occupants of the car talking in general terms about robbing someone. At this point, the men had apparently not decided who they would rob.

Upon arriving in Kansas City, Missouri, they drove to Jerry Williams’ residence, located at 3917 Troost. As they were all sitting in the car at Jerry Williams’ house, Debra heard a conversation in which it was proposed that James Main, the next door neighbor of Williams, be robbed. Shortly after the conversation, Debra observed the appellant and Willie Dove leave the car and enter Mr. Main’s house. Sometime after these two individuals entered the Main house, Williams and Johns left the car and went inside the Main residence. This, of course, left Debra alone in the automobile.

Debra testified that Williams and Johns were the first to return to the car. Next, the appellant and Willie Dove returned together, Willie Dove carrying a radio back with him. After all four men had returned to the car, Williams and Dove started fighting over “the money”.

At approximately 3:00 p. m. on May 13, 1973, a son of Mr. Main found his father dead in the living room at 3921 Troost. The body was bound with electrical cord. There was a sheet tied about the head, secured there with electrical cord tied around the neck. An autopsy revealed that Mr. Main had died as a result of ligature strangulation.

Both Williams and Johns testified as state’s witnesses at the trial. They testified in substance that after returning to Missouri from Kansas, the four men discussed “making some money” (/. e. robbing someone). After it was determined that Mr. Main would be the target of their scheme, and in furtherance of that enterprise, the defendant and Dove went inside the Main house together — defendant taking with him Johns’ pistol.

After the appellant and Dove entered the Main house, Williams heard Mr. Main scream. At this, both Williams and Johns went into the Main house. When they arrived, Dove and the appellant were looking around for some money. Williams and Johns noticed that Mr. Main was tied up. Johns untied Mr. Main. The appellant tied Mr. Main up again. About this time, the appellant made the announcement that Mr. Main “needed to be dead anyway”. Meanwhile, Williams was attempting to discourage Dove from kicking Mr. Main.

Johns and Williams left the Main house and returned to the car. Fifteen to twenty minutes later, Dove and the appellant returned to the car. On his way back to the car, appellant was carrying a sweater that he had used to wipe off fingerprints from a door. This sweater was last seen hanging on the fence which separated the Main and Williams residences.

Testimony was also given at trial by several members of the Kansas City, Missouri Police Department. Their collective testimony revealed that when Mr. Main’s body was discovered on May 13,1973, he was tied up as above stated. The living room in which he was found was in a state of disarray. Sitting on the television set in the living room was an electric clock, from which the electrical cord had been removed, save for a one-inch stub. The color of the one-inch portion of the wire remaining on the clock matched the color of the electrical cord with which Mr. Main was bound. A fingerprint on the clock matched a fingerprint of the defendant.

Outside the Main house, near the fence above referred to, the police found a sweater.

There is no contention made that state’s witnesses Nathaniel Johns and Jerry Williams were not, in fact, accomplices of the defendant who “knowingly, voluntarily and with common interest” united with the defendant in the robbery of Main. But defendant vigorously asserts that Debra Clark was also an accomplice and that, therefore, the refused cautionary instruction should have been given. The record does not support this position.

In 21 Am.Jur.2d Criminal Law, Section 118, p. 196 (1965), an accomplice is defined:

“An accomplice is said to be one who knowingly, voluntarily, and with a common interest with others participates in the commission of a crime either as a principal or as an accessory before the fact.”

This rule and definition is applicable in Missouri. State v. Martin, 428 S.W.2d 489, 491[1, 2, 3] (Mo.1968); State v. Burks, 484 S.W.2d 302, 304[1] (Mo.1972). The presence of one in the vicinity or at the scene of the crime as the crime is being committed (as was Debra Clark sitting in the car in front of Main’s home) is insufficient to establish that such person is an accomplice-principal or an aider or abetter. Neither is the fact of non-interference in the criminal act or failure to notify the police sufficient to support a charge as principal or accomplice. State v. Burks, supra; State v. Martin, supra; State v. Caldwell, 428 S.W.2d 727, 728 (Mo.1968).

The record is devoid of any evidence to indicate that Debra Clark in any way associated herself with the criminal venture, affirmatively participated in or forwarded the effort or consciously shared in the act. She was not an accomplice, State v. Irby, 423 S.W.2d 800, 803[4] (Mo.1968), and her testimony clearly corroborated that of Johns and Williams in substantial detail.

Further corroboration of the testimony of Johns and Williams as to the defendant’s participation in the robbery-homicide is found in the testimony of the police officers investigating the crime, as above noted.

Under the posture of this record, the trial court did not err in refusing the cautionary instruction as to the testimony of accomplices, and the judgment is therefore affirmed.

All concur.

      . Attention is directed to Footnote 2, MAI-CR 2.01, adopted by the Supreme Court effective 5/8/74, which provides that from that date no such cautionary instruction may be given.


text:
    Donald Ray MALSON, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27428.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.
    Application to Transfer Denied Oct. 21, 1975.
    Modified on Court’s Own Motion Oct. 24, 1975.

      Robert G. Duncan, William E. Shull, Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J„ and WEL-BORN and HIGGINS, Special Judges.
   SWOFFORD, Presiding Judge.

Movant appeals from the denial of his motion, under Rule 27.26, to vacate a judgment and sentence. He was sentenced to life imprisonment for murder in the second degree (reduced from the charge of first degree murder) upon his plea of guilty. He urges upon this appeal that the trial court’s findings of fact and conclusions of law are clearly erroneous because 1) his plea of guilty was not knowingly entered and he did not comprehend or understand the nature of the proceedings against him due to the administration and injection of various drugs by employees of the state before the entry of such guilty plea; and 2) he was denied the effective assistance of counsel, in that his counsel failed to properly preserve and urge his defense of mental incompetence and further, coerced him into making a plea of guilty based upon threats, duress and false information.

The burden of proving grounds for the relief sought, by the preponderance of the evidence, rests upon the appellant, and the findings of the trial court are presumptively correct and must be sustained on this appeal unless they are clearly erroneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70[1] (Mo.1968); Beach v. State, 488 S.W.2d 652, 656[10] (Mo.1972).

A review of the record of the guilty plea, entered on August 3, 1971, discloses that the trial court and then counsel for the appellant used meticulous care in explaining to the appellant the nature of the proceedings and to ascertain that the plea was entered knowingly and voluntarily within the guidelines of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and the many Missouri decisions on this subject. Indeed, this 37-page transcript discloses that the appellant made alert, intelligent and coherent responses and had complete recall of the details and occurrences surrounding the homicide.

He further testified that his attorney had fully advised him with reference to the crime of second degree murder; he understood the range of penalty therefor was from ten years to life imprisonment, which the trial judge again stated at the hearing; that no promises had been made to him as to the sentence that would be imposed or that he would be granted probation, and that those determinations were solely up to the judge; that he had the right to stand trial before a jury, in which event he would be entitled to the protections of reasonable doubt, right of confrontation, the right against self-incrimination, and the right to appeal, if convicted; and, that he had fully discussed the possible results of his plea with his attorney and members of his family-

At this plea hearing, he was intensively questioned about the course of medication being administered to him at the jail, and the following appears:

“THE COURT: And at the present time you are not under the influence of any medication or dope or alcohol that would prevent you from understanding the consequences of what you are doing here today?
A. That’s right, Your Honor.
# * * * ⅝: *
THE COURT: Are you pleading guilty to this crime for any reason other than the fact that you are guilty?
A. No, Your Honor.”

He further stated that the medication did not interfere with his awareness or understanding of the proceedings.

At the allocution and sentencing proceedings on October 18, 1971, (consisting of 47 pages of transcript) those same matters were once again covered. Upon this occasion, he stated he was taking Thorazine and Benadryl under the doctor’s prescriptions at the time of his guilty plea because he “couldn’t sleep” and for “nervousness”.

Dr. Lindgren testified at the Rule 27.26 hearing, held December 21, 1972, that the drug “Thorazine” calms a person and makes him more rational, but does not change the psychotic thinking process; that “Benadryl” is a drug to relieve muscle spasm; that “Prolixin”, a drug also administered to appellant, was similar to “Thorazine”; and, that no bad or “pyramiding” effect would result from the administration of these drugs in proper doses over the same period of time. At this hearing, the attorney representing the appellant at the plea and sentencing stated that he knew that his client was under medication but that appellant told him he had not taken the “pills” and that he seemed alert and responsive, his mind did not wander, and he had good recall of details.

The appellant testified that Prolixin had been forcibly administered to him by Dr. Lindgren and his jailers on two occasions, one occasion being in July, prior to his guilty plea on August 3, 1971. He stated that the drug “immobilized” him for 3 or 4 days and thereafter made him feel “sluggish” and slow-moving and “uncaring”. He testified that as a result of this injection of Prolixin that he had “no mental feeling” and “things just didn’t seem like they were worth listening to”, at the time of his guilty plea. He also testified that he was given an injection of Prolixin the second week in September, prior to his sentencing, but had taken no other drugs between August 3, 1971 (the day of his guilty plea) and October 18, 1971 (the date of his sentencing). On the latter date, he substantially reaffirmed his testimony of August 3, that his guilty plea was intelligently and knowingly ■entered.

In the light of this record, there was substantial competent evidence that at the time of appellant’s guilty plea, he was not under the influence of any medication or drug which would corrupt his intelligent and knowing entry of that plea. Cavallaro v. State, 465 S.W.2d 635, 636[1] (Mo.1971); White v. State, 490 S.W.2d 672, 674 (Mo.App.1972). The trial court’s finding was not clearly erroneous. The appellant’s first point was properly ruled.

During the pendency of the first degree murder charge, then counsel for appellant filed a motion for a mental examination under Chapter 552, RSMo 1969. This examination was had at the Western Missouri Mental Health Center, apparently in June, 1971, and resulted in the conclusion that the appellant was competent to stand trial but was inconclusive as to his mental state at the time of the crime because the appellant admitted he had ingested drugs and alcohol at the time he bound and then shot his victim three times.

A significant conclusion reached by the examiners, which was a part of the record before the court below, stated:

“The defendant’s sensorium is extremely clear. His attention span is long, his ability to concentrate is excellent, his recent memory and remote memory is beyond questioning and his intellectual capacity appears to be at least within range of normal. His judgment is excellent, but he appears to have little insight into some of his deeper underlying emotional problems.”

Counsel for appellant (at that time) testified that he advised his client of his right to an examination by and the opinion of a private doctor, and that if the defense of insanity was successfully urged and a jury so found, he would be sent to a mental institution until it was determined that he had regained his sanity; that his mental state could be reviewed every 180 days, but that he could remain in such institution the rest of his life; and, that if the jury rejected such defense, he could be sentenced to death or life imprisonment on the first degree murder charge. Counsel testified that he did not make any assurances as to the sentence which appellant would receive if he pleaded guilty to a second degree murder charge.

As to the Chapter 552 defense, counsel stated that he left that decision entirely up to appellant and was advised by his client that he did not want to go to a mental hospital and was instructed not to press that defense. This appears to have been a rational and deliberate choice by the appellant, and as such, an abandonment of such possible defense. Keller v. State, 523 S.W.2d 127, 130[3] (Mo.App.1975).

There can be no doubt that the appellant had a long history of emotional and nervous problems. He testified that he had been confined at the Nevada State Hospital in 1963 under a voluntary commitment for a nervous breakdown, and at the Fulton State Hospital, under the same commitment, in 1965-1967 for a recurrence of the breakdown. He had previously been charged with offenses of criminal assault and first degree burglary, but such charges had not been pressed. He had served some time in a federal penitentiary for improper use of the mails to convey “threats”. The instant homicide has homosexual overtones.

Appellant further testified that his counsel advised him that if the insanity defense was successful, he would go to a mental hospital for life without any chance of “parole”, and that is why he signed the waiver and withdrawal of that defense. He further stated that his counsel discouraged having a private mental examination and that counsel advised him he would be sentenced to 15 years on a guilty plea to second degree murder.

However, at the plea hearing of August 3, 1971, appellant testified that he had full knowledge of the report from the Western Missouri Mental Health Center and was thoroughly satisfied with it; that he had fully discussed it with his lawyer; that he did not desire further examination, and did not wish to pursue the matter further; that he had executed the written waiver of the defense of “insanity”; that he was able to fully cooperate with his attorney and to understand the proceedings; and, that no threats or coercion of any kind had occurred to cause him to abandon the incompetency defense. The following appears in the transcript of the plea hearing:

“THE COURT: Do you have any criticism to make of the way your attorney has handled your case?
A. No, Your Honor, I do not.
THE COURT: Do you think he has done all that reasonably can be done on your behalf under the circumstances?
A. Yes, Your Honor, I do.”

At the sentence hearing, appellant was asked by his attorney:

“[Q] Is there anything you wanted done that the lawyer did not do for you?
[A] No, sir.
[Q] You are thoroughly satisfied then with the services of the attorney, is that right?
[A] Yes, sir.”

It is obvious that the appellant was not denied effective assistance of counsel in that his counsel “ * * * failed to properly protect and preserve the defendant’s defense as to mental incompetence, * * * ” as charged in appellant’s second point relied on in this appeal. His counsel did assert this defense under Chapter 552, RSMo 1969; he did arrange for and obtain a mental examination; he advised appellant of his right to an additional examination by a private doctor of his own choosing; and, according to counsel’s testimony, he fully advised the appellant of the possible results of further urging of this defense. There is no dispute between them that the defense was withdrawn by written waiver, signed by the appellant and at appellant’s direction.

However, at the Rule 27.26 hearing and now, appellant asserts that this direction was given by him and his plea of guilty entered to the reduced charge because his counsel “coerced” him by “threats, duress and false information”. The only conceivable record basis for such charge is appellant’s testimony that he was advised by his counsel that if he prevailed in this defense, he would be institutionalized for the rest of his life “with no chance for parole” and that if he pleaded guilty, he would receive a 15-year sentence. Such testimony was given by the appellant for the first time at the Rule 27.26 hearing and was diametrically contrary to his previous sworn testimony that he was not subjected to any threats, promises or coercion, and the sworn testimony of his counsel that he had made no such statements as to the results of a finding of insanity or the sentence that would be imposed upon a guilty plea. Under the “totality of events and circumstances” preceding the entry of the guilty plea and the subsequent sentence, the “afterthought” testimony of appellant in this regard is not believable. Rayford v. State, 504 S.W.2d 285, 290[6] (Mo.App.1973).

In ruling this point against the appellant, the trial court was supported by competent, believable evidence, and its denial of relief thereon was not clearly erroneous.

The judgment is affirmed.

All concur.