author: PRESLAR, Chief Justice.

text:
    R. L. BOWLING et al., Appellants, v. The CITY OF EL PASO, Appellee.
    No. 6431.
    Court of Civil Appeals of Texas, El Paso.
    July 9, 1975.
    Rehearing Denied July 30, 1975.

      Warren Burnett Associated, Richard J. Clarkson, Odessa, Malcolm McGregor, Collins, Langford & Pine, John A. Langford, Charles E. Vinson, El Paso, for appellants.
    Peticolas, Luscombe, Stephens & Windle, Harry Lee Hudspeth, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a suit by the City of El Paso to have declared void and to rescind a 1972 exchange of City-owned lands for lands owned by R. L. Bowling, Truett L. Maddox, Donald B. Fertel, C. E. Armstrong, Trustee, Property Management Company of New Mexico, and others, who were defendants in the trial Court and are the Appellants here. Subsequent to the exchange of properties, Property Trust of America and Property Services of America, Inc. acquired an interest in the land traded by the City and thereby became defendants and are also Appellants herein. The City alleged noncompliance with Art. 5421c — 12, Vernon’s Tex.Rev.Civ.Stat.Ann., grossly inadequate consideration, and an unconstitutional donation of public property.

At the close of all the evidence, the Court withdrew the case from the jury and granted the City’s motion for instructed verdict based on the application of Art. 5421c — 12. The trial Court voided the entire transaction by rendering judgment that the deed of the City be nullified, cancelled, set aside and declared wholly void, and that the deeds of the other parties to the transaction likewise be voided. That judgment will be affirmed.

Art. 5421c — 12 became effective June 10, 1969, and provided in pertinent part as follows:

“No land owned by a political subdivision of the State of Texas may be sold without first publishing in a newspaper of general circulation in the county where the land is located or in an adjoining county, if there is no such newspaper, a notice that the land is to be offered for sale to the general public, its description, its location and the procedures under which sealed bids to purchase the land may be submitted. Notice shall be so given at least on two separate occasions and no sale shall be held less than 14 days after the last notice.”

The first and principal question presented to the trial Court and to this Court is whether or not this statute governs an “exchange” of land between a City and private persons.

It is undisputed that there was no advertising in the newspapers and no compliance otherwise with Art. 5421c—12 prior to the exchange. It is contended by Appellants that an exchange of property as occurred here is not a sale of property, therefore the cited Article does not apply. Appellants cite a number of cases as authority that an exchange is not embraced within the term “sale.” These authorities can easily be distinguished as not pertaining to the construction of the statute involved. It is recognized that there is a technical distinction between a sale and an exchange of property, but, as used in the statute, this Court construes sale to mean any transfer of property. This is a logical construction because the purpose of the statute is the protection of public property, to throw a safeguard around land owned by a City in order that it might not be disposed of for less than true value and without prior knowledge by the citizens of the community-

Land may be disposed of in a number of ways—by sale, exchange or gift; the statute should be construed to cover all of these to effect its purpose of controlling the disposal of City property. If the word “sale” is held to its narrow technical sense, not to include “exchange,” then it should be held not to include “gift.” Surely no one would say that the Legislature intended that City property could be given away with no notice of any kind.

In the case of McKinney v. City of Abilene, the Eastland Court of Civil Appeals considered a City charter provision almost identical in its terms to the statute before us. In construing the charter provisions, the Court set aside deeds of exchange and declared them void. 250 S.W.2d 924 (1952, writ ref’d n. r. e.). It held, as we must here, that “sale” should be construed in a broad sense, to cover and apply to the disposition of land owned by the City by means of an exchange. The Court noted, that in statutes, the word “sale” is usually construed as including an exchange of property, citing as authority: Associates Discount Corporation v. C. E. Fay Co., 307 Mass. 577, 30 N.E.2d 876, 132 A.L.R. 519; James v. State, 124 Ga. 72, 52 S.E. 295; Howell v. State, 124 Ga. 698, 52 S.E. 649; State v. Fullman, Del., 7 Pennewill 123, 74 A. 1; Dickinson v. Lawson, 125 Neb. 646, 251 N.W. 656; Berger v. United States Steel Corp., 63 N.J.Eq. 809, 53 A. 68; Associated Gas & Electric Co. v. Public Service Commission, 221 Wis. 519, 266 N.W. 205; Keeler v. Murphy, 117 Cal.App. 386, 3 P.2d 950.

The Court then said:

“The effect of the failure of the Board of Commissioners of the City of Abilene to comply with the charter provisions requiring notice and hearing of the ‘sale’ was to render the transaction void and the court did not err in so holding. Culver v. Miears, Tex.Civ.App., 220 S.W.2d 200; Wyatt Metal & Boiler Works v. Fannin County, Tex.Civ.App., 111 S.W.2d 787; Wilder v. American Produce Co., Tex.Civ.App., 147 S.W. 936; Elms v. Giles, Tex.Civ.App., 173 S.W.2d 264; 141 Tex. 446, 174 S.W.2d 588.”

Under such authority, the trial Court in the case before us correctly declared the deeds void. See also Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558 (1957).

Appellants contend that the transaction was validated by the passage of Art. 1174a-9, Tex.Rev.Civ.Stat.Ann. This Act was passed at the next session of the Legislature following the exchange; its purpose was to validate certain city elections and “all governmental proceedings of home-rule cities * * *.” However, Sec. 4 of the Act provides:

“This Act shall not be construed as validating any proceedings or actions the validity of which is involved in litigation on the effective date of this Act and such litigation is ultimately determined against the validity thereof.”

At the time Art. 1174a-9 became effective on June 15, 1973, there was pending in the District Court of El Paso County the case of McCoy v. Williams, by which McCoy and others, as interested citizens, were attempting to have this very exchange of property set aside on basically the same grounds that are alleged in the case before us, and against the same parties-defendant, plus the then mayor Bert Williams. This Court decided that case against the parties who are Appellants here and remanded the case to the trial Court for trial on the merits. See McCoy v. Williams, 500 S.W.2d 178 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.). In remanding that case to the trial Court, we held that we would not determine the effect of Art. 5421c-12 because the case presently before us, this case, had been filed and its determination would settle the question. Thus, by our decision in this ease, that litigation is ultimately determined against validity within the meaning of Art. 1174a — 9. That Act did not validate the exchange.

Appellants urge that the City ratified the transaction when the City Council voted a “ratifying resolution” some three months after the exchange. This was not an action or procedure which ratification would cure. It did not cure the vice — the failure to give notice by publication in the newspapers and allowing time for competitive bids. The exchange was void. A void act cannot be cured by ratification. Culver v. Miears, 220 S.W.2d 200 (Tex.Civ.App.—Eastland 1949, writ ref’d); Wyatt Metal & Boiler Works v. Fannin County, 111 S.W.2d 787 (Tex.Civ.App.—Texarkana 1937, writ dism’d); City of Lubbock v. Geo. L. Simpson & Co., 31 S.W.2d 665 (Tex.Civ.App.—Amarillo 1930, writ dism’d w. o. j.).

The question is raised that the City was estopped from denying the validity of the exchange transaction. It is well settled that estoppel is an affirmative defense which must be specially pled. Rule 94, Texas Rules of Civil Procedure; Concord Oil Co. v. Aleo Oil and Gas Corp., 387 S.W.2d 635 (Tex.1965); Burket v. Delaware Drilling Corporation, 435 S.W.2d 307 (Tex.Civ.App. — El Paso 1968, writ dism’d). Appellants Bowling, Maddox, Fertel, Armstrong and Property Management Company of New Mexico answered only by way of general denial. Estoppel was not affirmatively pled and is not available to those Appellants. Appellants, Property Trust of America and Property Services of America, Inc., did raise the defense of estoppel. An examination of the statement of facts reveals no evidence on the part of these two Appellants on the element of reliance in the ■ estoppel defense. Because of this failure to prove an essential element of estoppel, their point of error must be overruled. One asserting estoppel must not only plead it but he has the burden of proving every essential element thereof. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.1968); Concord Oil Co. v. Aleo Oil and Gas Corp., supra. Also, the two Appellants who pled estoppel are in no position to show their reliance, because during the time of their transactions there was on file in the Deed Records of El Paso County a Lis Pen-dens Notice of the case of McCoy v. Williams, in which case the plaintiffs were seeking to have the transaction declared void.

Appellants argue that they have not been made whole, because there is no return of the taxes which they paid on the property acquired by them. None of the parties pled the matter of taxes'in the trial Court, and there is no assignment of error, as such, in this Court. The City’s offer could be construed as broad enough to cover the matter of taxes, because they pled that they were ready, willing and able to deliver the property acquired to the defendants “as the Court shall direct, as part of an order rescinding and cancelling the conveyance involved.” However, the tax matter was not litigated, and it may not be a problem when this case becomes final and the taxes paid on one tract are considered with the taxes owing on other tracts. As to such taxes, we make no order as the matter is not properly before us.

All points of error have been considered and all are overruled.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: ELLIS, Chief Justice.

license: Public Domain

text:
    In the Matter of E. B.
    No. 8547.
    Court of Civil Appeals of Texas, Amarillo.
    July 14, 1975.
    Rehearing Denied Aug. 4, 1975.
    Daniel H. Benson, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Lubbock, for appellee.
   ELLIS, Chief Justice.

In this juvenile proceeding, E. B., the appellant, a child who had been found to have engaged in delinquent conduct and placed on probation, brings this appeal from the trial court’s order modifying the previous disposition order placing the child on probation. By reason of the trial court’s finding of violation of the terms of such probation, the court modified the disposition order placing the child on probation and committed the child to the custody of the Texas Youth Council. Affirmed.

The child, who had been adjudicated to be a child who had engaged in delinquent conduct, was placed on probation after a disposition hearing held on January 31, 1974, in the 72nd District Court of Lubbock County, Texas, sitting as a juvenile court. In its First Amended Petition to Modify Disposition, the Lubbock County Criminal District Attorney’s Office, on behalf of the State of Texas, alleged that on or about March 4, 1974, while such probation was still in full force and effect, the appellant child violated a condition of such probation in that he violated a penal law of this State of the grade of misdemeanor, Section 31.03, Texas Penal Code, Y.T.C.A., by unlawfully exercising control over personal property, candy of the value of less than Five ($5.00), without the effective consent of the owner and with the intent to deprive the owner of such property.

The child timely filed his application for trial by jury and his memorandum of law in support of such application prior to trial. The trial court denied the child’s application for trial by jury. Also, the child filed a motion for appointment of a psychiatrist and for psychiatric examination, and the trial court granted such motion and appointed a psychiatrist to conduct the examination.

After due notice and hearing before the court without a jury, the court entered its order modifying the previous disposition and committing the child to the care, custody and control of the Texas Youth Council. The child’s appeal is predicated on two points of error, asserting (1) that the trial court erred in its denial of the appellant’s application for a trial by jury on the issues of (a) whether the appellant had actually engaged in the delinquent conduct alleged as the basis for modification of disposition and (b) whether appellant was not responsible for his conduct as a result of mental disease or defect; and (2) that the court’s findings of delinquent conduct supporting the modification of disposition are contrary to the preponderance of the evidence establishing that as a result of mental disease or defect at the time of the alleged delinquent conduct, the child lacked substantial capacity to conform his conduct to the requirements of law.

A significant aspect of the appellant’s contention in his first point is that the denial of a jury trial in the hearing to modify disposition in the present case constitutes discrimination in violation of appellant’s rights to equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States. This contention is based on the argument that the Family Code of Texas provides for a jury trial in the case of modification of a previous disposition wherein the child was found to have engaged in conduct indicating a need for supervision but does not provide for a jury trial where the prior disposition was based on a finding that the child had engaged in delinquent conduct.

There are three aspects of juvenile proceedings under the Texas Family Code which should be distinguished: (1) Adjudication Hearing; (2) Disposition Hearing; and (3) Hearing to Modify Disposition. As to this case, the pertinent provisions are:

“§ 54.03, Adjudication Hearing
“(a) A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing conducted in accordance with the provisions of this section.”
# * # ⅜ * *
“(c) Trial shall be by jury unless jury is waived in accordance with Section 51.-09 of this code.”
“§ 54.05 Hearing to Modify Disposition “(c) There is no right to a jury at a hearing to modify disposition.''’ (emphasis added)
⅜ # ⅜ # ⅜ Hs
“(g) A disposition based solely on a finding that the child engaged in conduct indicating a need for supervision may not be modified to commit the child to the Texas Youth Council. A new finding in compliance with Section 54.03 of this code must be made that the child engaged in delinquent conduct as defined in Section 51.03(a) of this code.”

The appellant asserts that the refusal of his timely demand for jury trial was error because a juvenile in a modification hearing who had previously been found to have engaged in conduct indicating a need for supervision would be entitled to a jury trial under § 54.05(g), V.T.C.A., by virtue of the requirement of a new finding in compliance with § 54.03. It is noted that the new-finding in compliance with 54.03, which includes right of jury trial, must be a finding that the child has engaged in delinquent conduct as defined in Section 51.03(a) of the code. Section 51.03 specifically defines (a) delinquent conduct and (b) conduct indicating a need for supervision. In general, delinquent conduct involves conduct of a more serious nature than conduct indicating need for supervision. Specifically, delinquent conduct includes penal offenses, other than traffic offenses, punishable by imprisonment or confinement in jail, while conduct indicating a need for supervision includes penal offenses, other than traffic offenses, of the grade of misdemeanor, punishable by fine only. Also, in the original Disposition Hearing (Section 54.04), if the court or jury found at the conclusion of the Adjudication Hearing (Section 54.03) that the child had engaged in delinquent conduct, the court may commit the child to the custody of the Texas Youth Council. It is apparent that these statutes demonstrate a public policy of the state that no child shall be committed to the custody of the Texas Youth. Council unless and until the child is found to be a child engaged in delinquent conduct — conduct of the more serious nature than that “indicating a need for supervision.” No contention is made by the appellant in this case that he was deprived of his right to jury trial in the original adjudication hearing.

Appellant’s argument as to violation of rights with respect to equal protection of the laws rests primarily upon the assertion that the “finding,” applicable to a child previously found as a child indicating need for supervision, in compliance with § 54.03, must include a jury trial, while no jury trial is provided for a modification of disposition under § 54.05(c) for a child who was previously adjudicated as a child engaged in delinquent conduct. The two sections of the Family Code here involved, Sections 54.03 and 54.05, address two separate stages or aspects of the juvenile proceedings. While a child is entitled to a jury trial under § 54.03 of the Family Code in an Adjudication Hearing, a juvenile is not entitled to a jury trial in either the original disposition hearing or in a Hearing to Modify Disposition. Subsection (g) of § 54.05 does not create any special exception to the express statutory language of § 54.05(c) which provides for a non-jury hearing on the specific question of modification of disposition as to any child who had previously been adjudicated as a child engaged in delinquent conduct, the more serious of the offenses dealt with in juvenile proceedings.

Under § 54.05(g), a child whose previous disposition was based solely on a finding that the child engaged in conduct indicating a need for supervision, the less serious of the offenses involved, cannot have a direct modification of disposition from such status to a committal to the Texas Youth Council. It is required under § 54.05(g) that there be a new or independent finding in compliance with § 54.08, i. e., an adjudication proceeding with a right of jury, unless properly waived, that the child is found as one engaged in delinquent conduct, the more serious of the juvenile offenses. Such child originally found as one indicating a need for supervision could not have been originally committed to the Texas Youth Council, although it was possible for one found to be engaged in delinquent conduct to have been committed to the Texas Youth Council in his original disposition proceeding.

After the new finding that the child originally found as one indicating need for supervision is a child who has engaged in delinquent conduct, such child is then in the identical status of any other child found to have engaged in delinquent conduct, subject to disposition which may be accorded any child of such status; and an appropriate disposition order, after notice and hearing, may be entered without a right of trial by jury. It is our opinion that the requirement that the child not be subject to committal to the custody of the Texas Youth Council until after a finding that he is a child who has engaged in delinquent conduct, the more serious offender, is not an unreasonable classification or is not without a rational basis with respect to a legitimate state interest. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1110, 6 L.Ed.2d 393 (1961).

As above shown, a juvenile offender who has been adjudicated to be a child engaged in delinquent conduct has no right to a jury trial regarding the hearing or disposition or modification of disposition. Thus, we find no discrimination with respect to right of trial by jury as to a child who is in the category of a child who has engaged in delinquent conduct. A child originally adjudged to have engaged in conduct indicating a need for supervision, after the prescribed procedure and a new finding as being a child engaged in delinquent conduct, has no different right with respect to a jury trial on the disposition aspect than any other child declared as one engaged in delinquent conduct.

In view of our holding that the applicable statutes do not discriminate between juvenile offenders with respect to their right to jury trial once they have been adjudicated as a child engaged in delinquent conduct, we deem it unnecessary to discuss the respective authorities submitted regarding constitutionally permissible classifications. In any event, we do not regard the proceedings under the provisions of the Texas Family Code with respect to Modification of Disposition in this case to be violative of any fundamental right or that the statutory proceedings here involved fail to have in all essential respects a rational basis in relation to a legitimate state interest. . See McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); and McGowan v. Maryland, supra.

We note that Section 55.05(c) of the Family Code provides that the issue of whether the child is not responsible for his conduct as a result of mental disease or defect shall be tried to the court or jury in the adjudication hearing. Also, Section 55.05(d) provides that mental disease or defect excluding responsibility must be proved by a preponderance of the evidence. Since this proceeding was a Hearing on Modification of Disposition, rather than an Adjudication Hearing, no trial by jury was required. Further, there had been no suggestion or finding that as a result of mental disease or defect, the child lacked the capacity to understand the proceedings in the juvenile court at this Hearing to Modify Disposition, pursuant to the provisions of Section 55.-04(a).

In view of the foregoing, appellant’s first point regarding denial of jury trial with respect to the Hearing on Modification of Disposition, including the question of the alleged violation of the terms of his probation and the question of mental disease or defect excluding responsibility, is overruled.

By point of error no. 2 the appellant asserts that the trial court’s finding of delinquent conduct supporting the modification of disposition is contrary to the evidence establishing that, as a result of mental disease or defect at the time of such alleged delinquent conduct, the child lacked substantial capacity to conform his conduct to the requirements of law. Appellant urges his claim under § 55.05 of the Family Code which provides in part:

“(a) A child is not responsible for delinquent conduct . . . if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”
“(d) Mental disease or defect excluding responsibility must be proved by a preponderance of the evidence.”

The appellant asserts that the evidence presented at the modification hearing preponderates in favor of exclusion of the child’s legal responsibility for his actions and conduct alleged as basis for modification. Dr. Harold M. Erickson, a child and adolescent psychiatrist appointed by the court to examine the child, testified that his examination of the child indicated a personality disorder which he termed “asocial personality.” According to Doctor Erickson, the child had a concept of right and wrong “in the concrete sense,” but that in various stress situations it became difficult for the child to conform his conduct to the requirement of law; or as stated in the report to the court, “ ‘. . .He has a concept of “right and wrong” but is insufficiently motivated to always adhere to the right.’ ”

The matter of the weight and credibility of the evidence submitted, in whole or in part, was for the court’s determination. The trial court apparently concluded that the disorder revealed by Doctor Erickson’s examination was not of such a nature as to deprive the child of “substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” From our review of the record, we cannot say that the finding is against the greater weight and preponderance of the evidence submitted. Further, we have reviewed and considered the various alternatives submitted relative to the question of modification of disposition, and it is our opinion that it has not been established that the court’s order to commit the child to the care, custody and control of the Texas Youth Council constituted an abuse of judicial discretion. Appellant’s second point is overruled.

For the reasons above stated, the judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    STATE of Texas, Appellant, v. Minor POUNDS, Appellee.
    No. 8564.
    Court of Civil Appeals of Texas, Amarillo.
    July 7, 1975.
    Rehearing Denied Aug. 4, 1975.

      Lee H. Lytton, III, Asst. Gen. Counsel, Austin, for appellant.
    Tom M. Richards, Lubbock, for appellee.
   REYNOLDS, Justice.

The district court dismissed for want of jurisdiction the disbarment proceeding brought against a non-resident attorney licensed by the State of Texas and founded on alleged acts committed while he was a Texas resident. The trial court viewed the State Bar Act declaration that “No disbarment proceedings shall be instituted against any attorney except in the District Court located in the county of said attorney’s residence” as being mandatory and exclusive. In our view, the statutory proviso relates only to venue for disbarment proceedings instituted against resident attorneys and the act, not being a jurisdictional statute, does not deprive the district court of its implied jurisdiction to entertain disbarment proceedings against a non-resident attorney licensed by the state for acts committed while the attorney was a Texas resident. Reversed and remanded.

On 20 May 1974, the State of Texas, acting through the Grievance Committee for State Bar District No. 16, filed in the 72nd Judicial District Court of Lubbock County, Texas, a complaint alleging that Lubbock County resident Minor Pounds, a duly licensed attorney of the State of Texas and a member of the State Bar, had committed in Lubbock County in 1971 certain dishonorable acts that warrant his disbarment. Non-resident process authorized by Rule 108 was served on Pounds at Ponape in the Eastern Caroline Islands. Through his attorney, Pounds filed, in due order of pleading, a verified Rule 120a special appearance motion, a plea of privilege, and a general denial. It was vowed in the special appearance motion that Pounds was not either at the time the proceeding was filed or at the time of his special appearance a resident of or domiciled in the State of Texas, and that he had committed no act subjecting him to the jurisdiction of the court.

At a 13 November 1974 hearing to first determine the issue of jurisdiction, the court heard the evidence summarized as follows: Licensed as an attorney only by the State of Texas, Pounds resided in Lubbock County and maintained a law office in the City of Lubbock until 30 September 1972. On that date, he moved to Santa Barbara, California, in order to study for the California bar examination. On 9 January 1973, having accepted employment as District Attorney for the Trust Territory of the Pacific Islands, a position which requires the officeholder to be licensed as an attorney in some state, Pounds left California and established residency at Kolonia, Ponape, Eastern Caroline Islands, Micronesia, where he intends to remain. He has continuously served as district attorney and his contract has been extended to February, 1977. Since Pounds left Texas, he has not represented anyone in the state in any legal matter and he has returned but once to attend his father’s funeral in April of 1974.

For the State Bar’s fiscal year from 1 June 1978 to 31 May 1974, Pounds paid the full dues required of a resident, but for the subsequent fiscal year, he paid non-resident dues. He maintains his Texas driver’s license and renewed it as a non-resident in December of 1973. He is listed as a qualified voter on the Lubbock County voter registration lists as the result of a 1972 registration, but he owns no interest in his former law practice or in any Texas land or stock.

Following the hearing the court, expressing the feeling that McGregor v. Clawson, 506 S.W.2d 922 (Tex.Civ.App. — Waco 1974, no writ), compelled the sustention of the special appearance motion, dismissed the proceeding for want of jurisdiction. The one filed conclusion of law, paraphrasing the language of McGregor, reads:

Article 320a — 1, Vernon’s Civ.Stat., the State Bar Act, states in Section 6 that “No disbarment proceedings shall be instituted against any attorney except in the District Court located in the county of said attorney’s residence. . . Section 6 of Article 320a — 1, said venue provision of the State Bar Act, is particular in nature and thereby applies to specific fact situations encompassed by the State Bar Act. Therefore, where the cause of action and remedy for its enforcement is derived not from the common law but from the statute the statutory provisions are mandatory and exclusive and must be complied with in all aspects, or the action is not maintainable. Therefore, to hold that the defendant in a case of this nature can be sued in a county not his residence would require the District Court to legislate and this being a legislative function is not for the district court to determine.

In McGregor, a disbarment proceeding instituted in Hill County against resident attorney McGregor was transferred to Coryell County under authority of Rule 257 when the trial court, after a hearing on the State Bar’s motion for change of venue, concluded that neither party could obtain a fair trial in Hill County. In a mandamus action, the appellate court held the transfer order void, reasoning that “the venue provisions of the State Bar Act are particular in nature, and apply to specific fact situations encompassed by the State Bar Act,” which the legislature intended to control over Rule 257. In the course of the opinion, citation to State v. Dancer, 391 S.W.2d 504 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.), a case deciding that an individual acting independently of the State Bar and of any district grievance committee is not authorized by the State Bar Act to institute disbarment proceedings, is made for the proposition that the legislature intended the State Bar Act as a full and comprehensive set of laws to cover completely the practice of law including the regulation and disciplining of lawyers; but McGregor, unlike the case at bar which poses the question of jurisdiction over the person of a non-resident attorney to inquire into the propriety of his acts while a resident, was concerned only with the proper venue for a disbarment proceeding brought against a resident Texas attorney.

It must be borne in mind that jurisdiction and venue are not synonymous. Jurisdiction is the power of the court to decide a controversy between parties and to render and enforce a judgment with respect thereto; venue is the proper place where that power is exercised.

Neither McGregor, nor any case cited to us, nor any reported case we have discovered, has been concerned with the jurisdiction of the Texas courts to entertain disbarment proceedings against a non-resident attorney for acts allegedly committed while he was a Texas resident. Properly, then, our first resort is to the State Bar Act to ascertain if it purports to either encompass or exclude that jurisdiction and, if not, to secondly explore whether that jurisdiction otherwise exists.

In 1939, the 46th Legislature passed an act having for its purpose the regulation of the practice of law, which was denominated in Section 1 as the State Bar Act and numbered Article 320a — 1, Vernon’s Texas Civil Statutes. Sec. 2 of the act created the State Bar as an administrative agency of the Judicial Department with powers to carry out the purposes of the act. Sec. 3 constitutes all those licensed to practice law as members of the State Bar and makes them subject to the act and to the rules adopted by the Supreme Court. The Supreme Court is authorized by Sec. 4 to propose rules and regulations which, when approved by a vote of the majority of the members of the State Bar, shall be promulgated for, among other matters, the disciplining, suspending and disbarring of attorneys. Sec. 5 provides that no rule or regulation shall abrogate “the right of trial by jury in disbarment proceedings in the county of the residence of the defendant.” The complete heading preceding Sec. 6 is composed of these words:

Venue; conviction in court prerequisite to suspension; appeal; probation; disbarment

and Sec. 6 reads, in part:

Sec. 6. No disbarment proceeding shall be instituted against any attorney except in the district court located in the county of said attorney’s residence

Sec. 7 is the provision that the invalidity of any portion of the act shall not invalidate any other portion. It was expressed in Sec. 8 that all laws or parts of laws in conflict with the act or with the rules and regulations adopted under the act were repealed.

Thus, it is apparent from a reading of the statute that there is no provision which, as such, purports to confer jurisdiction on any court. Those sections speaking of the proper forum as the district court in the county of the attorney’s residence are directed not to jurisdiction, but to the right of trial by jury and to venue. Absent any provision for jurisdiction, it is more reasonable to believe that the legislature recognized the jurisdiction the district courts previously had exercised in disbarment proceedings as an implied power stemming from their constitutional jurisdiction, and intended to enact the State Bar Act, as expressed in Bryant v. State, 457 S.W.2d 72, 78 (Tex.Civ.App.—Eastland 1970, writ ref’d n. r. e.), “in aid of the judiciary, not to the exclusion of the constitutional powers of the judiciary.” To this extent, “the Legislature has set up machinery” for “the regulation of the practice of law,” Hexter Title & Abstract Co., Inc. v. Grievance Committee, Fifth Congressional Dist., State Bar of Texas, 142 Tex. 506, 509-10, 179 S.W.2d 946, 948 (1944); yet, the mechanics for enforcement are silent concerning the situation where the acts committed by a resident Texas attorney are not challenged until after he removes himself from the state. Notwithstanding, this silence is not determinative and the inquiry does not cease with the State Bar Act, for “(t)he first maxim of equity is that it will not suffer a right to be without a remedy.” Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419 (1954). As a result, it becomes necessary to invade that realm of implied authority noticed, but not invoked, in Hexter to determine if the district court has the implied authorization to entertain the disbarment proceeding against the now non-resident attorney.

Article 2, Sec. 1, of the Texas Constitution adopted in 1876 divides the powers of the state government among three distinct departments — i. e., the legislative, the executive, and the judicial — and directs that none of the departments shall exercise, except as may be constitutionally permitted, any power attached to either of the other departments. Art. 5, See. 8, of that document established the jurisdiction of the district courts over certain matters, but disbarment was not specifically mentioned there or in any other constitutional provision. By the 1891 amendment, the jurisdiction of the district court was extended to other matters including “general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution.” Meanwhile, the 8th Legislature had addressed itself to the regulation of the conduct of attorneys through legislation, one act of which is now Art. 313, V.A.C.S., enacted January 18, 1860, providing that any attorney who should be guilty of fraudulent or dishonest conduct, or of any malpractice, might be suspended or might have his license revoked by the district court of the county in which he resided or where such conduct or malpractice occurred.

In 1894 there was considered in Scott v. State, 86 Tex. 321, 24 S.W. 789, a disbarment proceeding instituted in the district court before the 1891 constitutional amendment. The Supreme Court, mentioning that statutory regulation of disbarment proceedings were embodied in the civil statutes, held that the disbarment action was a civil case over which the district court had original jurisdiction, stating, “The power to disbar attorneys is not expressly conferred by that section [Art. 5, Sec. 8, Texas Constitution] upon those courts, but it is a power necessarily inherent in all courts possessing such general jurisdiction as is given to the district courts by the Constitution of 1876. We have no serious doubt that the legislature was empowered to regulate the exercise of the jurisdiction of the district court in this matter, . . .” Later, Burns v. State, 129 Tex. 303, 103 S.W.2d 960 (1937), in reversing Burns v. State, 76 S.W.2d 172 (Tex.Civ.App.—Fort Worth 1934), where it had been observed that, absent legislation, the power of the court to appoint its attorney is inherent, and in holding that the legislative conferral upon the Supreme Court of the exclusive right to issue licenses to practice law did not take from the district court the power to disbar, seems not to have looked past the power to disbar it found in Art. 313, Y.A.C.S. Still later, the opinion in Grievance Committee of State Bar of Texas, Twenty-first Congressional Dist. v. Coryell, 190 S.W.2d 130 (Tex.Civ.App. — Austin 1945, writ ref’d w. o. m.), a case determining that certain acts constituted the practice of law whether done for compensation or not, had occasion to refer to “the inherent power of the court to control, supervise, and to determine who shall practice law.”

Parenthetically, we note that in Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 109 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.), we wrote:

. While it may be an exercise in semantics, when the courts speak of “inherent” powers, we believe they actually are speaking of “implied” powers. “Inherent” means something firmly in-fixed, as in a constitution from which the judiciary derives its initial powers. “Implied” has the connotation of something virtually involved as a requisite to the performance of a function. As our Supreme Court stated in Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270 (1939):
“Under our judicial system our courts have such powers and jurisdiction as are defined by our laws constitutional and statutory. Under our system there is no such thing as the inherent power of a court, ‘if, by that, be meant a power which a court may exercise without a law authorizing it’. Messner v. Giddings, 65 Tex. 301. Of course, jurisdiction is granted by law when it is either directly eon-ferred or ought to be implied from the jurisdiction directly granted. In other words, our courts have such powers and jurisdiction as are directly provided by law, and, in addition thereto, they have such further powers and jurisdiction as are reasonable, proper and necessary,— that is, as ought to be inferred, from the powers and jurisdiction directly granted.”

Accordingly, it is our studied opinion that the district courts derive from their constitutional grant of jurisdiction the implied — or, as some authorities prefer, the inherent — power to entertain disbarment proceedings, including those instituted against non-resident attorneys because of acts committed while those attorneys were Texas residents, even though the State Bar Act does not set forth the procedural machinery for such actions. Viewed from this perspective, the provisions of the State Bar Act are not in conflict, but operate to achieve a uniform regulation of the exercise of that jurisdiction over resident Texas attorneys. Neither do we find any conflict in the State Bar Rules promulgated by the Supreme Court pursuant to the State Bar Act to regulate the conduct of attorneys licensed by the Supreme Court; but, beyond that, our holding is harmonious with the State Bar Rules Sec. 11 command that “It shall be the duty of each District Grievance Committee and its members to receive complaints of professional misconduct, alleged to have been committed by an attorney within the district, or by an attorney having his office or residence therein;

.” (Emphasis supplied)
It follows that the judgment of dismissal for want of jurisdiction must be reversed. We express no opinion on any other matter not reached and passed upon by the trial court.

The judgment of the trial court is reversed and the cause is remanded for reinstatement on the docket of the district court.

      . Unless otherwise specified, all rules are cited by the number under which they appear in Texas Rules of Civil Procedure.

      .Rule 120a reads, in part:
      1. . . .a special appearance may be made by any party either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State . Such special appearance shall be made by sworn motion filed prior to plea of privilege or any other plea, pleading[s] or motion; .
      2. Any motion to the jurisdiction provided for herein shall be heard and determined before a plea of privilege or any other plea or pleading may be heard.
      3.If the court sustains the objection to jurisdiction, an appropriate order shall be entered. If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose.

      . The plea of privilege asserted that Pounds had the right to have the cause of action alleged against him transferred to Ponape (District), Eastern Caroline Islands.

      . Pounds placed the location of Ponape approximately three thousand miles west of Honolulu and one thousand five hundred miles east of Guam.


author: MeKAY, Justice.

text:
    H. L. BROWN AND ASSOCIATES, INC., Appellant, v. Jerry D. McMAHON, Appellee.
    No. 823.
    Court of Civil Appeals of Texas, Tyler.
    June 12, 1975.

      Davis & Nemer, John O. Davis, Palestine, for appellant.
    W. Boyen Weems, Dallas, for appellee.
   MeKAY, Justice.

Appellant sued Jerry D. McMahon, appel-lee, in 1972, for title and possession of a 25.2-acre tract of land in the J. Jones Survey, Anderson County, Texas. The trial was before a jury on the one issue of ten years’ adverse possession under Art. 5510, Vernon’s Ann.Civ.Tex.St., and the jury found for appellee. Judgment was rendered for appellee based upon the verdict.

Appellant acquired by deed a 200-acre tract of land from J. W. Files, et ux., and S. E. McCreary, et ux., on September 11,1962, which was in J. Jones Survey, A — 137, and called 320 acres less 120 acres. The tract in controversy is a 25.2-acre tract and a part of the 200-acre tract as shown on the following plat:

J. W. Files, et ux., and S. E. McCreary, et ux., purchased or inherited the land from T. S. Files and his heirs, T. S. Files having acquired the land in 1886.

As shown by the plat there is a 120-acre tract which joins the 25.2-acre tract on the west. The record title holder of the 120-acre tract at the time of the filing of this suit was appellee, Jerry W. McMahon. The 120-acre tract was known as the Branson tract since it was owned by Branson before the McMahons acquired it.

As the plat shows, there is a road running north and south immediately east of the 25.2-acre tract in controversy. There is a fence on the east line of the 25.2-acre tract immediately west of the road, and there is also a fence on the south boundary and the north boundary of the tract. There is a fence running east and west across the northern part of the tract which separates three or four acres from the remainder. There is no fence separating the 25.2-acre tract from the 120-acre McMahon tract.

In passing upon a no evidence point an appellate court must consider only the evidence and the inferences tending to support the finding by the trier of the facts and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

When the contention is made that the evidence is insufficient to support the jury finding a court of civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the findings of a vital fact. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.R. 361, 366 (1960).

Appellant complains that there is no evidence or factually insufficient evidence that appellee, Jerry D. McMahon or any other person in possession of the land for the period of time from 1937 to 1967, entered upon the land in controversy under a claim of right, and that there was no evidence or insufficient evidence of privity of estate between successive occupants and appellee. The record reveals that Arbie McMahon built the fence on the east side of the 25.2 acres in 1936 or 1937, but that he never had any interest in it other than running cattle on it since there was no fence between his 120 acres and the 25.2 acres, and that so far as Arbie knew, Files and Branson claimed it, and that he just ran the fence on the east side to keep everybody out and as a convenience to himself and that he did not build it with intent to claim or appropriate any of the Files land and that he did not know whether he built it on Files or Bran-son land. Arbie testified that he did not own any interest in the land in dispute and he never had and never claimed any interest.

According to the record Ansley McMahon bought the 120-acre Branson place (plus 33 acres in another survey) in 1946 and sold it in 1962 and that he “just taken what was under the fence,” but he knew there were more acres under fence than his deed called for, and that he thought some of the land belonged to the Bransons and that if anybody had said anything to him about his possession of the tract in controversy he “would have tried to do what was right about it.” Ansley at one point said, “I thought it all belonged to me at that time,” but later he again said that he recognized that the Bransons owned part of the land he bought. Ansley acknowledged that “If the Branson heirs had wanted the land I would have been willing to give it to them,” but he would not have given it to the Files had they asked for it, but he said, “I don’t know who owned it,” and that he recognized that someone else owned an interest in the property. He did not pay any taxes on the 25.2-acre tract. (Emphasis added.)

John William McMahon, appellee’s father, who owned the 120-acre tract for about one year said he thought the 25.2-acre tract “belonged to the place,” but that when Jerry brought him a new deed to sign in 1967 he learned that somebody else owned the 25 acres or that Jerry did not have a deed to it.

Appellee Jerry D. McMahon testified that he took possession of the land in August, 1962, and a metal gate was used to replace a wire gate to the road and the gate was kept locked from the time it was put there in 1962. He testified that he cut and baled hay, sold bermuda sprigs, planted vetch and grazed the cleared or coastal area. He testified he had cattle on the land 5 or 6 years, but not continuously every year. He said the primary use of the wooded area was deer hunting, and that he hunted deer on the property every year, put up some posted signs, and cut trees for roads for deer hunting and viewing the dogwoods in season.

Appellee further testified that he knew the 25.2 acres were not in the deed he received, and that there was more land than was actually covered by the deed. He said he knew that the title to the 25.2 acres was “shakey,” so he went to a lawyer who prepared a deed covering both the 120 acres and 25.2 acres. He further testified that no one ever talked to him about the ownership and possession of the 25.2 acres, until he received a letter from appellant’s attorney in the fall of 1972. He said that he had claimed it as his own all the time he had possession, and that in 1967 he filed the deed covering both the 120-acre tract and the 25.2-acre tract, and that he rendered both tracts together in 1967 and paid taxes on them thereafter.

From the record it appears, and it is our opinion, that a claim of right was not made by any prior occupant of the land in controversy.

To acquire title under Art. 5510, V.A.C.S., the ten-year statute of limitations, it is required that the claimant have had continuous, exclusive, peaceful and adverse possession of the land under a claim of right for ten years, and intention by the limitation claimant to hold adversely to the true owner is an indispensable element of adverse possession. Holland v. Nance, 102 Tex. 177, 114 S.W. 346 (1908); Heard v. State, 146 Tex. 139, 204 S.W.2d 344 (1947); Hensz v. Linnstaedt, 501 S.W.2d 463, 465 (Tex.Civ.App., Corpus Christi, 1973, no writ). One claiming limitations has the burden of proving all the elements of adverse possession, which includes a claim of right and such proof must be clear and satisfactory. Moore v. Wooten, 280 S.W. 742 (Tex.Com.App.1926). Under Art. 5515, V.A.C.S., to establish adverse possession there must be actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another. A person in possession of land can never acquire limitation title to it unless he intends to claim it as his own. Orlando v. Moore, 274 S.W.2d 86, 89 (Tex.Civ.App., Waco, 1954, writ ref’d, n. r. e.); Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707 (1960).

From the record we conclude that there was no privity of estate between ap-pellee and the prior occupants of the land in controversy. Art. 5516, V.A.C.S., provides that adverse possession need not be continued in the same person, but there must be privity of estate between them when held by different persons. Privity of estate is said to be shown when “Privity of possession between successive occupants or possessors of the land is shown to have existed, * * * by proof that the earlier occupants’ possession and claim passed or was transferred to the later occupant by agreement, gift, devise or inheritance.” Hutto v. Cook, 139 Tex. 571, 164 S.W.2d 513 (1942).

Appellee’s predecessors in possession, under the record, did not occupy the land in controversy with an intention to claim the land as their own, and therefore, there was no relationship of successive and concurrence of claim of right to appellee. Appel-lee, in addition, could not take advantage of the possession of his predecessors to show necessary adverse possession to mature limitation title under the ten-year statute, because there was no privity of estate or of possession between Arbie McMahon, Ansley McMahon, John William McMahon and Jerry McMahon. This is borne out by the fact that the record is silent regarding any agreement, gift, devise or inheritance involving the earlier occupants’ possession of the 25.2 acres, and there is nothing in the record to indicate that any earlier occupant intended to pass or transfer ownership or title to appellee, Jerry McMahon, or to his predecessors in possession.

With respect to appellant’s claim that there is no evidence or insufficient evidence of cultivating, using or enjoying the land in controversy for any specific and continuous period of time, and appellant’s further claim that there was no evidence or insufficient evidence that the use and possession of the land by appellee was of the character which would give notice of an adverse hostile possession required to mature title by limitation, there are several facets to be considered. First, we have concluded that the record shows that the erection of the fence which enclosed the 25.2 acres together with other land of the McMahons was not designedly built, but was built for casual or incidental purposes, and therefore, did not constitute actual and visible appropriation. Georgetown Builders, Inc. v. Heirs of Tanksley, 498 S.W.2d 222 (Tex.Civ.App., Austin, 1973, writ ref’d, n. r. e.); McDonnold v. Weinacht, 465 S.W.2d 136 (Tex.1971); Orsbom v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954); Pirtle v. Henry, 486 S.W.2d 585 (Tex.Civ.App., Tyler, 1972, writ ref’d, n. r. e.).

Secondly, the record reveals that ap-pellee made no different use of the land after gaining possession that would give notice of a different character of possession from that of the prior occupants until he filed a new deed in 1967 which included a description of the 25.2 acres. The record here indicates the best use of the land was for deer hunting and cattle grazing, but that the 25.2-acre tract of land would not alone support cattle in that there was insufficient grazing or feed for them. The record is silent whether there is water on the 25.2 acres. Appellee testified the best use to be made of the land was for deer hunting, and he used it each year for that purpose, but that the deer season was only six weeks in duration. We are of the opinion that the use of the land for deer hunting for six weeks out of the year is not sufficient to satisfy the limitation statute.

Since we have determined that deer hunting intermittently for some six weeks per year will not satisfy the limitation statute, appellee must rely, if he can, on cattle grazing to establish his adverse possession. Appellee ran cattle irregularly and sporadically on the 25.2 acres, but did not run cattle each year. Sporadic and irregular or occasional use of land does not satisfy the limitation statute. Vaughan v. Anderson, 495 S.W.2d 327 (Tex.Civ.App., Texarkana, 1973, writ ref’d, n. r. e.). The character of use varies with the nature of the land and its adaptability to a particular use. When grazing is relied upon to support the statute, there must be a sufficient enclosure so as to demonstrate that the land was designedly enclosed to assert a claim hostile to the owner, and when the disputed land was casually or incidentally enclosed with other lands held by the adverse claimant by deed, such casual or incidental enclosure and occasional grazing by cattle will not constitute such adverse possession as will support the statute of limitations. Chapa v. Garcia, 513 S.W.2d 953, 956 (Tex.Civ.App., San Antonio, 1974, writ ref’d, n. r. e.) and cases there cited.

Thirdly, we do not believe that appellee established for himself the requisite “claim of right” to have acquired the 25.2 acres in controversy by adverse possession. “Claim of right” which is inconsistent with and hostile to the claim of another includes more than a mental process. Scott v. Rodgers, 6 S.W.2d 731, 732 (Tex.Com.App.1928). “Claim of right” must be manifested by declaration or by open visible act. If there is not verbal assertion of claim to the land brought to the knowledge of the landowner, the adverse possession must be so open and notorious and manifested by such open or visible act or acts that knowledge on the part of the owner will be presumed. Orsborn v. Deep Rock Oil Gorp., supra.

Although appellee testified that he claimed the 25.2 acres in controversy since 1962, he made no verbal or written assertion of claim to the land until 1967 when he had the deed drafted and filed which was designed to show that he owned the 25.2 acres in controversy. Appellee did not do anything different from what was done by the prior occupants except to post “no trespassing” signs and to build the little road in the woods, not visible from the public road, to facilitate deer hunting. We do not believe that knowledge on the part of the owner can be presumed.

In viewing all the evidence and accepting as true all of the evidence offered by appellee, we conclude that appellee failed to adduce evidence of probative force proving the character or the use required by the limitation statutes, Arts. 5510, 5515 and 5516, V.A.C.S. Had we reached and ruled on the factually insufficient points we would have sustained them.

Appellant proved a record title which was not defeated by the adverse possession claim; therefore, judgment should have been for appellant.

Judgment of the trial court is reversed and judgment is here rendered for appellant for title and possession of the 25.2-acre tract in controversy.


author: WARD, Justice.

text:
    Lauro BARRAGAN, d/b/a Del Norte Saddlery, Appellant, v. Juan MUNOZ, d/b/a Fisher Hotel, Appellee.
    No. 6417.
    Court of Civil Appeals of Texas, El Paso.
    June 25, 1975.

      Scott, Hulse, Marshall & Feuille, Stephen B. Tatem, Jr., El Paso, for appellant.
    Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Malcolm Harris, El Paso, for appellee.
   OPINION

WARD, Justice.

The tenant, Lauro Barragan, sued his landlord, Juan Munoz, for the damages sustained to a stock of merchandise occasioned by water coming from the premises which were under the control and possession of the landlord. At the conclusion of the plaintiff’s case, the Court instructed the jury to return a verdict for the defendant. We affirm.

The tenant operates a western-wear store on the first floor of a three-story building known as the Fisher Hotel in El Paso. The landlord has retained the possession of the top two floors of the building where he conducts his business known as the Fisher Hotel. On the morning of October 13, 1969, a concealed water pipe located between the second and third floors and above a vacant room in the hotel developed a leak. The water seeped through the floor of the second story and flowed into the Appellant’s premises, and the damages resulted. Appellant’s claim for recovery for his loss is based on alternative theories of trespass, negligence and res ipsa loquitur.

The Appellant occupied his leased premises as a tenant since 1947. The most recent written lease covering the premises prior to the flooding was for the term of April 1, 1953, through March 31, 1955, and since the expiration of that lease the tenant has continued to occupy the same premises and paid the same rent of $175.00 a month as called for in the lease. The landlord urges that a hold harmless clause contained in Paragraph Ninth of this written lease controls the disposition of this case. Paragraph Ninth is to the effect that the landlord shall not be liable to the tenant for damages to property from latent or patent defects in the building, nor for damages to property “occasioned by or from plumbing, gas, water, steam and other pipes or apparatus being out of repair.” Such exculpatory provisions are not contrary to public policy and are valid and enforceable. Mitterlehner v. Mercantile National Bank at Dallas, 378 S.W.2d 137 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.). The question is then presented as to whether or not the tenant is bound by these terms of the expired lease by virtue of the “holdover doctrine.” It is the rule that proof of holding over after the expiration of a term fixed in the lease gives rise to the presumption that the holdover tenant continues to be bound by the covenants which were binding upon him during the term, in the absence of evidence to the contrary. 49 A.L.R.2d 483. The law implies an agreement on the part of the landlord that he will let and on the part of the tenant that he will hold on the terms of the expired lease. Overstreet v. Houston Oil Co., 64 S.W.2d 354 (Tex.Civ.App.—Beaumont 1933, writ ref’d). The holding over is normally a lease for a year binding on both parties in the absence of an express or implied agreement to the contrary. A second and subsequent holdover year can be created by holding over after the expiration of the first holdover year. Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477 (1945); 35 Tex.Jur.2d Landlord and Tenant § 26, p. 510.

The Appellant relies upon Paragraph Eighth of the expired lease as being the necessary contrary evidence which keeps the tenant from being bound by the exculpatory clause. Paragraph Eighth provides that:

“It is agreed that this lease terminates at the time herein specified and should Lessee tender his monthly rental for the month next ensuing after the termination hereof or for any other month and same be accepted by lessor, same shall not renew his lease, but he shall be regarded as a tenant-at-will for such time as he may continue to remain in and upon the premises after the expiration hereof, * *.”

Regardless of any such paragraph, all leases terminate by their own terms upon expiration, and where the tenant remains in possession and rent continues to be accepted the terms of the expired lease are presumed to continue, absent agreement to the contrary. The only change made in the present case was that the duration of the holdover was to be at will. Where a landlord and his tenant have agreed to a holding over but have made certain changes in the expired lease, the rule is that the tenant is still bound by the remaining covenants. 49 A.L.R.2d 490. Whether a particular clause in an original lease is applicable to a holdover depends upon the nature of the clause, that is, whether it was consistent with the new situation. The exculpatory clause in this case is as consistent to the situation after the holding over as it was during the term of the original lease.

The parties had allocated the risk of possible loss by the terms of the written lease. The tenant, knowing that he could not look to the landlord for the damages, had protected himself with insurance coverage and was so covered on October 13,1969. The tenant points this out by stating this is a subrogation case brought on behalf of the United States Fire Insurance Company of New York in the name of its insurer. In addition, the tenant testified he thought he was still operating under the written lease. We hold that the exculpatory clause remained in effect and barred recovery against the landlord for any negligence or unintentional trespass caused by the plumbing.

Additionally, we fail to see any evidence of a cause of action. The Appellant’s points complain of the directed verdict and insist that there was legally sufficient evidence to support the submission of the Ap-pellee’s negligence in failing to properly maintain the plumbing in the building, in failing to discover the water leak prior to the damage, and in failing to provide adequate supervision for the detection of water leaks. This being an instructed verdict case, the evidence is to be considered in its most favorable light in support of the plaintiff’s position. Seideneck v. Gal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970). The rule means we must view only the evidence and all reasonable inferences to be drawn therefrom most favorable to the plaintiff’s cause of action and disregard all contrary evidence and inferences.

In the case before us, there is no conflict in the evidence and it is very brief. As to liability, the plaintiff called only himself and the hotel manager, and both testified from depositions. The manager of the hotel said that he relieved his night clerk at 8:00 A.M, on the morning in question. Two hours later, a maid, while making her rounds in the hotel, reported that she had found water in Room 5, which had been unoccupied. The manager saw that the leak was coming from the ceiling in that room and he cut a hole in the ceiling where he found the leaking pipe. He shut the water off and repaired the pipe by capping it. He then saw some water in the store on the first floor below the room in question and attempted to telephone the Appellant. He stated that this pipe had not leaked before, that it was a concealed pipe located between the second and third floor of the building, and that it could not have been inspected without tearing down the walls and the whole building. He estimated that the building was seventy years old, that repairs and replacements had been made to the plumbing while he was there, that there had been other leaks in the pipes and from overflow from fixtures, but that prior to the instant case there had been no indication of a leakng pipe in Room 5. Nothing was offered as to the time or method used . in inspecting the premises or as to when the last inspection of the room was made before the discovery. There is no evidence as to the condition of the water pipe that broke other than a possible inference that it might be old. There is no evidence of the volume of water that had leaked out or of the size of the leak itself. There is nothing to use in estimating the time that the leak had existed. There is no evidence as to the condition of the exterior of the pipe around the break so that a determination could be made as to what a possible inspection might have shown regarding any visible defect.

The plaintiff testified that he had been a tenant on these same premises and with the same lessor since 1947, that he and his lessor were close friends, that lessor had told him when the written lease expired to continue on as before and that he didn’t need to sign a new lease. He did not visit the premises until the day after the leak had been repaired and he offered nothing as to the quantity of water which had entered his premises. He was silent as to any possible previous water leaks in the premises during his twenty-two years of continuous occupancy.

Where the landlord retains possession and control of a portion of the leased premises, such as in this case, then the landlord is charged with the duty of ordinary care in maintaining the portion retained so as not to damage the tenant. He is not an insurer but he is responsible for his own negligence. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963); see Anno. 35 A.L.R.3d 143, at 200. Under the facts before us, we hold that there is no evidence of any negligence on any of the grounds charged.

We further find no evidence in the record to support the submission of the theory of res ipsa loquitur. We know that an ordinary water pipe in an inaccessible part of the property under the landlord’s control sprung a leak. The control factor is present but the fact that such a water pipe sprung a leak is not of that character of accident as would support a reasonable inference that the lessor was negligent in causing or permitting it to occur. Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1974). These facts distinguish this incident from those in a case decided by this Court forty years ago where we approved the application of res ipsa loquitur when a faucet or toilet was permitted to overflow at the same Fisher Hotel. See Washington v. Ravel, 14 S.W.2d 367 (Tex.Civ.App.—El Paso 1929, no writ).

Points are also presented as to the failure to submit the Appellant’s theory that the water flowing onto his property created a trespass. These points are overruled as at best there was an unintentional and non-negligent intrusion caused by a failure to act. No abnormally dangerous activity is involved nor has any affirmative volitional act been done which immediately caused an invasion of the lessee’s property rights. Ruiz v. Forman, 514 S.W.2d 817 (Tex.Civ.App.—El Paso 1974, writ dism’d); First City National Bank of Houston v. Japhet, 390 S.W.2d 70 (Tex.Civ.App.—Houston 1965, writ dism’d).

We have considered all of the Appellant’s points concerning the liability of the lessor and they are overruled. Certain damage issue points are not reached.

The judgment of the trial court is affirmed.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri, Respondent, v. John W. BROWN, Appellant.
    No. KCD 27360.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Willard B. Bunch, Thomas M. Larson, Public Defenders, Mark D. Johnson, Asst. Public Defender, 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.
   ANDREW JACKSON HIGGINS, Special Judge.

John W. Brown was convicted by a jury of rape and the abominable and detestable crime against nature. The jury was unable to agree on his punishment and the court fixed punishment at fifteen years’ imprisonment for the rape and at fifteen years’ imprisonment for the crime against nature with the terms to run consecutively. Sen-' tence and judgment were rendered accordingly. §§ 559.260, 563.230, RSMo 1969, V.A. M.S.; Rules 24.04, 27.03, V.A.M.R.

Appellant does not question the sufficiency of evidence to sustain the conviction, and a jury reasonably could find that: On November 19, 1973, the prosecutrix was an apartment manager at 3740 Wyandotte, Kansas City, Jackson County, Missouri. At approximately 2:45 p. m., a man, identified in court as defendant John W. Brown, came to her apartment and inquired about renting an apartment. After providing him with three drinks of water, a cup of coffee, and showing him an apartment, defendant, armed with a pair of scissors, confronted her and ordered her to disrobe and lie on the floor. He then placed his penis in her mouth, shifted his position and again placed his penis in her mouth while placing his head between her legs, and, after again shifting his position, had sexual intercourse with her. Defendant left the apartment at 3:30 or 3:45 p. m.

At approximately midnight, the prosecu-trix viewed a lineup at the Kansas City police station and identified defendant as her assailant. Her identification of defendant at the lineup was corroborated by Detective Asa J. Steen. Detective Steen stated also that when arrested, defendant told him he had spent most of the afternoon looking for a job at Foremost, Dairy, address unknown, Watkins Cosmetics, 31st Street, Townley Company, 31st and Walnut, Wonder Bread Company, 31st Street, a printing company on 31st Street, and KCMO-TV (31st Street), and that he had shaved his beard around 5:00 p. m.

Defendant also offered the testimony of Mr. John Cavanaugh and Mr. Jerome Calla-way, the executive director and the employment counsellor at Dismas House, 3000 Campbell, to account for his time from 1:00 to 4:00 p. m. on November 19, 1973.

Appellant charges the court erred (I) in failing to grant defendant’s motion for mistrial during the State’s closing statement, viz:

“[Mr. Edwards for the State]: I don’t say, please, again, I’m not saying Mr. Cava-naugh was not telling what he believed to be the truth but he was truthful enough also to admit the possibility of the variation in time. He did not have a record of what time he actually spent with the man or what time it started or what time it ended. Now possibly one of the most important things in this case and it is important because of its absence from this case, though I have no idea who these people would be. If this man was job hunting that afternoon, who did he see?
“MR. JOHNSON [for defendant]: Your Honor, I’m—
“MR. EDWARDS: Where did he go and where are they? * * ⅞
“(Counsel approached the Bench and the following proceedings were had:)
“MR. JOHNSON: I would ask that the statement be stricken. The jury knows very well and has been instructed that the defendant has no burden of proof and no responsibility whatsoever to produce any witnesses whatsoever. The comments of the failure of the defendant to produce certain witnesses is certainly improper. I would ask that the prosecutor’s comments be stricked [sic] for that reason.
“(Proceedings returned to OPEN COURT.)
“THE COURT: All right, the objection is sustained. The last comments of the prosecutor are ordered stricken and the jury should disregard them.
“(Counsel approached the Bench and the following proceedings were had:)
“MR. JOHNSON: In addition, I will ask for a mistrial.
“THE COURT: Motion for mistrial is overruled.”

Appellant argues that it was improper to argue, as against defendant, his failure to call the witnesses to which the argument referred because they were equally available to defendant and the State; and that the only way the alleged prejudice could be cured was by granting a mistrial.

It is noted first that the court sustained defendant’s objection, and explicitly ordered the comment stricken and instructed the jury to disregard it. Second, it is difficult to conceive that the individuals defendant may have seen, if so, at the places of potential employment he claimed to have visited on the afternoon of November 19, 1973, were “equally available.” Defendant had the superior knowledge of their existence and identity, and the nature of their testimony and its value to him in support of his alibi, State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 649 (1942); and where such witnesses are not equally “available” to the State, the prosecutor is entitled to comment on their absence, State v. Barron, 465 S.W.2d 523 (Mo.1971).

In such circumstances, defendant received more relief than he was entitled to receive on his objection, and the failure to go further and declare a mistrial was a proper exercise of the court’s discretion in control of arguments. State v. Schlagel, 490 S.W.2d 81, 85-86 (Mo.1973); State v. Sheard, 276 S.W.2d 191, 195 (Mo.1955).

Appellant charges the court erred (II) in permitting Detective Steen to testify that the prosecutrix identified defendant in the lineup.

Appellant concedes “that no objection was made to either the question or the answer and that the admission of this question and answer was not cited as error in Appellant’s Motion for New Trial.”

Accordingly, the alleged error was not preserved for review; and with the adequate independent basis for in-court identification in this case, the alleged error does not constitute “plain error” under Rule 27.-20(c), V.A.M.R. State v. Brownridge, 459 S.W.2d 317, 320[9] (Mo.1970).

Appellant charges the court erred (III) in failing to dismiss the information in this case for the reason that it was filed pursuant to Rule 24.04, Y.A.M.R., which is unconstitutional.

Appellant asserts that Rule 24.04 is unconstitutional and in violation of Article V, Section 5, Constitution of Missouri, Y.A. M.S., in that the rule “deprives him of the right to have the trial judge determine whether multiple sentences shall run concurrently or consecutively,” because Section 546.480, RSMo 1969, requires that sentences following trial on multiple counts under Rule 24.04 shall be consecutive; and that Rule 24.04 “deprives him of his right to have each of the charges against him litigated at a separate trial”; and also that Rule 24.04 violates the equal protection clause of Amendment XIV, United States Constitution. He concedes that he “does not attack as arbitrary the singular operation of Rule 24.04 or the singular operation of Section 546.480 but rather attacks the rule and statute as they interrelate.” See State v. Neal, 514 S.W.2d 544 (Mo.Banc 1974).

If these were open constitutional questions and arguments, there would be no jurisdiction in this court to decide this case. The Supreme Court has ruled the precise issue, however, and all that remains is the application of the rule to this case. State v. Holley, 488 S.W.2d 925, 927[5] (Mo.App.1972).

State v. Baker, 524 S.W.2d 122 (Mo.Banc 1975), presented the identical questions and argument, and the court ruled: that “a defendant does not have either a federal or state constitutional right to be tried on only one offense at a time, * * that a denial of equal protection does exist but that the problem arises from § 546.480 rather than Rule 24.04; * * * if § 546.-480 is declared to be unconstitutional, as we have concluded it is, there is no problem remaining of unequal treatment in sentencing resulting from Rule 24.04. That being true, we hold § 546.480 to be unconstitutional * * *.” Declaring Section 546.480 unconstitutional “does not entitle appellant to a new trial. The statutory provision in question affected only the sentencing of appellant, not his trial.”

In this last respect, the trial court in this case appears also to have assessed consecutive punishments as though there was no alternative. Since, under State v. Baker, supra, the trial court is now freed of any compulsions of Section 546.480 and now has the authority to exercise judicial discretion whether to impose concurrent or consecutive sentences on the two-count conviction, the cause must be remanded for that limited purpose.

Accordingly, judgment of conviction is affirmed; the “mandatory” consecutive sentences are set aside, and the cause is remanded for the limited purpose of resen-tencing by the court in an exercise of discretion whether to impose the sentences in question consecutively or concurrently. State v. Baker, supra.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Bryant D. FRITH, Appellant.
    No. KCD 27317.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.

      Willard B. Bunch, Public Defender, Douglas N. Merritt, Asst. Public Defender, 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.
   ROBERT R. WELBORN, Special Judge.

A jury in the Jackson County Circuit Court found Bryant D. Frith guilty of burglary and larceny in connection therewith. The jury failed to agree upon the punishment and the trial court assessed two years; imprisonment on each count, to run concurrently (§ 560.110, RSMo 1969, Y.A.M.S.). Judgment was entered accordingly.

At around 12:30 P.M., November 4, 1973, Dolores McConnell and her three children left the house they occupied at 4337 Cleve- " land in Kansas City. The door was locked. When they returned to the residence “just before it got dark,” they discovered that the house had been ransacked. A window in the kitchen had been broken. A portable television set and a 20-gauge shotgun were missing.

The police were called. A police department evidence technician processed the house for fingerprints. He “lifted” two sets of prints from a camera and another from a vase in the house. The camera which was kept in a buffet drawer was found on the dining room table.

The prints were turned over to a police department evidence technician. He found that two of the prints taken from the camera corresponded with fingerprints of Bryant Frith in the department files.

Frith was arrested November 14, 1973. Following his arrest, he was interrogated by an officer. After brief questioning and when confronted with the fingerprint evidence, Frith admitted entering the McConnell house and taking the gun and television set. He admitted handling the camera but decided not to take it. His statement was reduced to writing and introduced in evidence at his trial.

At a pretrial hearing on the voluntariness of the statement, Frith testified that he was under the influence of “speed” at the time of his arrest and interrogation. He repeated this testimony at his trial. He testified that he had visited the McConnell home several times, the last time about a month before the burglary. He denied entering the house and stealing the gun and television set.

On this appeal, the claims of error relate to the fingerprint evidence and the introduction of the statement made to the police officer.

The evidence technician, Patrolman Harrison, testified to his examination of the premises for fingerprints. He explained that he examined objects which might have been touched, looking for “latent” prints. The objects examined are dusted with graphite and a powder solution and brushed lightly with a nylon brush. When a print appears, a clear “fingerprint” tape is placed over it, “lifting the print which is stuck to the tape.” The tape is placed on a fingerprint card and the print is compared with fingerprint records in the police file.

The officer testified that he made three cards from prints “lifted” at the McConnell residence on November 4, 1973. When he was asked to identify the cards which had been marked as State’s Exhibits 4, 5 and 6, defense counsel objected that the cards were not the best evidence. He asserted that the camera from which two of the cards had been made was the best evidence of the fingerprints. The objection was overruled. The ruling of the trial court is assigned as error.

Reliance here by appellant, as in the trial court, is on the best evidence rule, appellant asserting that “the jury has the right to know the nature of the surface from which the print was allegedly taken and to view the smudges, imperfections, overprints, and other physical evidence concerning the basis for the expert testimony.” He also points out that the camera was easily portable and not required for the health or welfare of the victim.

None of the authorities relied upon by appellant involved the situation here presented. Padgett v. Brezner, 359 S.W.2d 416 (Mo.App.1962); Findley v. Johnson, 142 S.W.2d 61, 67[10, 11] (Mo.1949), and Charles v. Charles, 313 Mo. 256, 281 S.W. 417, 419[5] (1926), all involved the traditional best evidence problem of proof of contents of a written instrument by means other than the production of the instrument itself. The best evidence rule is in fact limited to documentary evidence. State v. Curry, 473 S.W.2d 747, 748[2-6] (Mo.1971); Rice v. United States, 411 F.2d 485, 486[2, 3] (8th Cir. 1969); IV Wigmore on Evidence, § 1181, p. 419 (Chadbourn Revision 1972). Therefore, the trial court did not err in overruling the objection, based upon that rule. The state’s evidence showed the method by which the fingerprint tapes had been prepared. The expert testified to the comparison of the fingerprint impressions so produced with those in the files. There was no necessity that the camera have been produced before such testimony was admissible. Rice v. United States, supra.

Appellant’s second assignment of error relates to the introduction into evidence of the statement to the police officer. Officer Wiersma who took the statement was asked to identify what was apparently a carbon copy, signed by appellant, of the original typewritten copy of the statement. Defense counsel objected to the use of the carbon copy on the grounds that the officer had testified at the pretrial hearing on the voluntariness of the statement that he had signed the original as a witness. Arrangements were made for production of the original and counsel withdrew his objection, subject to such production. The officer then read the statement to the jury. A short time later the original copy was produced. It did not bear the officer’s signature as a witness. At that time, defense counsel asked for a mistrial because the witness had “falsified a statement on a material issue.” The request was denied. Counsel then objected to testimony about the statement because it was placed in evidence conditionally upon production of the original, signed by the witness, and asked the court to strike all evidence about the statement. The objection was overruled and the request denied. The officer was cross-examined about his earlier testimony that he signed the statement as a witness and acknowledged that if he did so his testimony was obviously in error.

On this appeal, appellant contends that the court erred in admitting the statement in evidence because when the original was produced “it in fact did not conform to the sworn testimony of the man who claimed to have originated such document.”

The objection raised by appellant did not affect the admissibility into evidence of the statement. There is no requirement that the statement have been witnessed in order to permit its introduction into evidence. The officer obviously was in error when he testified, indirectly, at the pretrial hearing to his having signed the original as a witness. At the most, such error would go to the credibility of the witness and would not render the statement inadmissible. The refusal of the trial court to strike the officer’s testimony or to grant a mistrial was not error.

Judgment affirmed.

All concur.


author: TURNAGE, Judge.

text:
    Frances Seeley LINDBERG, Plaintiff-Appellant, v. SAFEWAY STORES, INC., a corporation, Defendant-Respondent.
    No. KCD 27306.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Carl F. Sapp, Sapp, Woods, Dannov & Orr, Columbia, for plaintiff-appellant.
    Warren D. Welliver and William A. Atkinson, Welliver & Simon, Columbia, for defendant-respondent.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J. and TURNAGE, J.
   TURNAGE, Judge.

Plaintiff sought damages from the defendant as a result of a fall in defendant’s store in Columbia. Following a verdict and judgment in favor of defendant, plaintiff appeals on the sole ground the trial court erred in “sustaining defendant’s motion to quash the subpoena duces tecum” for the production of a report of plaintiff’s fall made by defendant’s assistant store manager.

By a subpoena duces tecum, plaintiff sought to force defendant’s store manager and assistant manager to produce at trial a written report of plaintiff’s fall made by the assistant manager within a few minutes after the accident. A motion to quash the subpoena duces tecum was filed and the parties have treated the court’s order as sustaining that motion. Defendant now argues the court erred in quashing the subpoena because the report was admissible in evidence. Defendant urges the court was correct because the question is one of dis-coverability rather than admissibility.

Plaintiff primarily relies on two cases to support her position. These are Shelton v. Wolf Cheese Company, 338 Mo. 1129, 93 S.W.2d 947 (1936) and State ex rel. S. S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W.2d 14 (1936). In relying on these cases to buttress her position, plaintiff has failed to distinguish between evidence which may be admissible and evidence which may be required to be disclosed. In Shelton and Kresge the court dealt with the admissibility of statements made by an agent as against either the principal or the agent himself.

In contrast, this case concerns the dis-coverability of a written report made by an agent to his principal on an accident which occurred on the principal’s premises. This case is thus covered by the rules concerning the discoverability of work product and privileged communications. For that reason, this case is governed by State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (banc 1953). There it was held that photographs taken immediately after an accident were protected from discovery because they were “work product” and were privileged as coming within the purview of communications between attorney and client. In that case, the court stated at 257 S.W.2d 73[10]: “[a] statement concerning an accident obtained by an employer from his servant for the bona fide purpose of being later transmitted to the employer’s attorney for advice, or to be used by the attorney in connection with pending or threatened litigation, is privileged, because it is part of the communication from the client to his counsel”.

In this case there can be no doubt the report was made by the assistant manager for the purpose of giving information to the defendant to be used in case of litigation arising from plaintiff’s fall. Such conclusion is based not only on hindsight, but on the realities of the situation which arises when a customer falls in a business establishment.

Under the holding in Flynn, the report in this case made by the assistant manager to the defendant was privileged and for that reason was not subject to discovery or production on the part of the plaintiff.

A very similar situation arose in Martin v. Lingle Refrigeration Co., 260 S.W.2d 562 (Mo.1953) in which a subpoena had been issued for production at trial of a statement made by two of the defendants. The court ruled the statement was not subject to production by subpoena because it was privileged. The court relied on Flynn in so holding.

In State ex rel. Kroger Company v. Craig, 329 S.W.2d 804 (Mo.App.1959) the court held written reports made by employees of Kroger were not subject to production by way of interrogatory and gave as one of the reasons for its holding that such reports would pertain to investigation and preparation for defense of a damage suit.

In this attempt to obtain the report, plaintiff does not rely on any rule of civil procedure. Plaintiff rests her claim only on the cases mentioned and on the subpoena power granted by Section 491.100 RSMo 1969, Y.A.M.S. Because such report is privileged, it is not subject to discovery through the subpoena process for the reasons stated in Flynn.

Finding no merit in plaintiff’s sole assignment of error, the judgment is affirmed.

All concur.


author: WASSERSTROM, Presiding Judge.

text:
    Neza ERNST, Respondent, v. Earl A. EMERICK, Appellant.
    No. 26856.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Thomas J. Conway, Popham, Popham, Conway, Sweeny & Fremont, Kansas City, for appellant.
    Warren D. Welliver, William A. Atkinson, Welliver & Simon, Columbia, for respondent.

      Before WASSERSTROM, P. J„ and SHANGLER and DIXON, JJ.
   WASSERSTROM, Presiding Judge.

Plaintiff brought this suit for wrongful death of her 14 year old son, Philip. The jury found for the defendant, but the trial court granted a new trial. Defendant appeals.

The fatal accident occurred in Sedalia, Missouri, about 8:00 p. m. on January 21, 1972. The weather was cold and drizzling. Defendant was driving south on Thompson Street, approaching 11th Street, and was following about two car lengths behind an automobile driven by Mrs. Charles. Mrs. Charles made a right turn into a shopping center parking lot, at which time defendant slowed down to approximately 10 to 15 miles per hour. After Mrs. Charles had completed her turn, defendant began accelerating and got his speed up to about 18 to 20 miles per hour. At this same time Philip was running or trotting west across 11th Street and when he reached about or just past the center of Thompson Street, he and defendant’s car came into collision. Defendant testified that he noticed someone on the east side of Thompson Street when defendant was about one-half to a block away from 11th Street and that he did not see the boy again until he was within only a very few feet of defendant’s automobile. Philip was rendered unconscious by the accident and died without making any statement.

The plaintiff submitted her case under Instruction No. 2, which was based upon failure of defendant to keep a careful lookout and failure to swerve after he knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision. Defendant submitted a converse, Instruction No. 3, and the issue of Philip’s contributory negligence under Instruction No. 4.

The ground sustained by the trial court for granting a new trial was that defendant’s converse Instruction No. 3 should have been modeled upon MAI 33.04(1), which applies where plaintiff has submitted multiple grounds of negligence, whereas the instruction instead followed MAI 33.03(2) which is intended for use where the plaintiff has submitted only a single ground of negligence. Defendant argues on appeal that this variation does not constitute prejudicial error; and he further argues that in any event the case should not have been submitted to the jury because Philip was guilty of contributory negligence as a matter of law. Plaintiff rejoins that contributory negligence was a jury issue under all of the evidence. She further contends that Instruction No. 3 was erroneous both for the reason given by the trial court and also because it failed to define the term “negligence.” Since we conclude that Instruction No. 3 is not properly subject to either of the objections leveled against it, there was no error in the jury submission, and it becomes immaterial whether a verdict should have been directed for the defendant on the ground that contributory negligence appeared as a matter of law.

With respect to Instruction No. 3, the first question for determination is whether the use of MAI 33.03(2) instead of 33.04(1) constituted error sufficient to justify the granting of a new trial. The difference between these two approved instructions consists simply of the first framing the issue in terms of whether “defendant was negligent,” whereas the second of the two approved instructions states the question to be whether “defendant’s conduct was negligent.” It is readily apparent that any distinction between these two virtually identical phrases would require a flight into fanciful metaphysics. Our Supreme Court has already held directly in Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 1. c. 57 (Mo.1973), that there is no significant difference in these two phraseologies. The Price opinion holds:

“We find no practical difference between a finding that ‘defendant’s conduct was negligent’ as set forth in MAI 38.04(1), and a finding that ‘defendant was negligent’ as set forth in MAI 33.03(2), and submitted in Instruction No. 8. Either instruction could use the language of the other and be correct.”

Plaintiff attempts to distinguish Price on the ground that the instruction there included a tail which referred to the alleged negligence of defendant “as submitted in Instruction No. 4.” However, the presence or absence of this tail cannot be of any decisive importance since the Notes on Use to both MAI 33.03(2) and 33.04(1) specifically state that this additional phraseology “shall be included or omitted at defendant’s option.” Moreover, the reasoning of the Supreme Court in the Price opinion attributes no significance whatsoever to the presence of the additional phraseology in question.

Trying to find support for the trial court’s ruling, plaintiff cites Davis v. St. Louis Southwestern Railroad Co., 444 S.W.2d 485 (Mo.1969), where the granting of a new trial was affirmed because of error in giving an MAI converse instruction which controverted only one out of multiple submissions of negligence. That was a case under the Federal Employer Liability Act which presented a situation and instructions entirely different from what is involved here. In Davis, the plaintiff submitted dis-junctively that the defendant failed to provide safe methods of work and that a fellow servant had dropped a brake beam on a hammer handle causing the hammer to hit plaintiff. The defendant’s converse instruction directed a verdict for the defendant “if you do not believe that defendant was negligent.” Obviously that instruction could have misled the jury into finding for the defendant even though it might have believed that the fellow servant did, in fact, drop the brake beam as charged. Furthermore, the Davis opinion calls attention to the fact that the converse instruction there improperly contained the phrase “if you do not believe,” contrary to the MAI Notes on Use. Davis is clearly distinguishable from the present case.

Next for consideration is plaintiff’s contention that Instruction No. 3 failed to define or otherwise indicate the meaning of the term “negligence.” While this was one of the points set forth in plaintiff’s motion for new trial, the trial court made no reliance thereon in granting the new trial. When the trial court granted a new trial on a specified basis, that ruling is deemed to constitute an overruling of the motion for new trial on all other grounds. Burnett v. Johnson, 349 S.W.2d 19, 24 (Mo.1961); Hoehn v. Hampton, 483 S.W.2d 403, 407 (Mo.App.1972). Of course it is permissible for plaintiff as respondent here to urge that the trial court should also have found Instruction No. 3 to have been defective because of failure to define negligence. However, in order to be successful on this argument, it is incumbent upon plaintiff to assume the burden of demonstrating error on the part of the trial court in failing to so hold. State ex rel. Sturm v. Allison, 384 S.W.2d 544, 547 (Mo.banc 1964).

Plaintiff here has wholly failed to demonstrate, as required by this rule, that the absence of a definition of negligence in Instruction No. 3 constituted error. The narrow and sole subject of Instruction No. 3 is whether defendant was negligent. Negligence as it related to anything which defendant did or failed to do had just been properly defined in Instruction No. 2, the plaintiff’s verdict director. These two instructions, one immediately following the other, must be read together. Kelso v. C.B.K. Agronomics, Inc., 510 S.W.2d 709, 726 (Mo.App.1974). So read, the jury must have understood that negligence on the part of the defendant meant “that degree of care that a very careful and prudent person would use under the same or similar circumstances” as set forth in Instruction No. 2.

It is wholly unreasonable to believe, as conjectured by plaintiff, that the jury could have been misled into thinking that Instruction No. 3 imported the definition of negligence contained in Instruction No. 4. The latter instruction covered the issue of contributory negligence by Philip and referred to the “degree of care which an ordinary boy of the same age, capacity and experience would use under the same or similar circumstances.” (Emphasis added). To assume that the jury would understand Instruction No. 3 as incorporating the definition in Instruction No. 4 would require the conclusion that they lacked the intelligence of reasonable men; and that we cannot do. Gathright v. Pendegraft, 433 S.W.2d 299, 311 (Mo.1968).

The issues in this case were shaply tried and were submitted to the jury upon accurate, readily understood instructions. The verdict reached by the jury should not have been disturbed. The case is reversed with directions to reinstate the jury verdict.

All concur.