text:
    STATE of Missouri, Plaintiff-Respondent, v. Raymond COX, Defendant-Appellant.
    No. 36686.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 2, 1975.

      Thomas J. Nold, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Raymond Cox, was charged, tried and found guilty by a jury of the offense of burglary, second degree. § 560.045, RSMo 1969. In accordance with the jury verdict, the court, after overruling appellant’s motion Tor new trial, granting allocution and finding him to be a second offender, sentenced him to ten years in the department of corrections. He appeals. We affirm.

On this appeal, defendant-appellant raises two points: (1) “The trial court erred in denying defendant’s motion for judgment of acquittal at the close of all the evidence, because the evidence adduced failed to prove the necessary element of an intent to steal,” and (2) “[t]he trial court erred in overruling the defendant’s objection to the admissiability [sic] of . the defendant’s bib overalls [because they] had little probative value and had a highly prejudicial effect on the jury.”

Appellant’s first point is that the evidence is insufficient to make a submissi-ble case. Resolution of the defendant’s appeal compels us to review the evidence in the light most favorable to the state considering as true all the evidence favorable to the state, direct and circumstantial, and all reasonable inferences deducible therefrom, and we disregard all evidence and inferences unfavorable to the state. Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence favorable to the state is sufficient to make a submissible case. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974); see also State v. Brunson, 516 S.W.2d 799, 801 (Mo.App.1974).

At the time of the alleged burglary, July 17, 1974, Mr. John Neal owned a two-story house in the 1300 block of Warren Avenue in the City of St. Louis. He lived in the upstairs portion of the house (1307a Warren) with four of his children. His stepdaughter also lived in the upstairs portion in another “apartment.” To get to the Neal living quarters it is necessary to pass through a gangway leading to the back of the house and then up a flight of steps to a porch. There are two doors that lead from the porch to Mr. Neal’s “apartment.” The “one on the side” was permanently nailed shut by Mr. Neal. The door that is always used can only be locked by the use of a hook on the inside. These two doors provide the only means of egress and ingress to the Neal “apartment.”

On the morning of July 17, 1974, John Neal left for work at the American Foundry Manufacturing Company at about 7:20 a. m. He left his son Larry, age ten, home alone. Sometime that day, Larry went outside to play with his friend David Kes-singer. As he left the apartment, he shut the door behind him. Later in the day, the two boys started to go back into the Neal apartment. From the porch Larry saw a man “looking out” the kitchen window. David entered the apartment. The man did not talk to Larry, but Larry stated that “[h]e asked my friend did he want to use the bathroom.” Both boys then ran. Larry “ran” down the stairs and to the American Foundry to get his father. He told his father that he saw somebody in the house. Mr. Neal and Larry then returned to the house. Mr. Neal started to enter the house but saw a bag with “blue clothes in it” sitting by the door and decided “I better not go in, and I better go down and rail the police. And I called the police.” Mr. Neal and Larry then waited outside for the police to arrive.

At about 4:16 p. m., Police Officer Kurt Shram and Ms partner, Harold Nester, received a radio call to proceed to 1307a Warren. When they arrived, they found Mr. Neal and Larry waiting outside. Several other police officers arrived at about the same time. The police then proceeded up the steps leading to Neal’s apartment. Both doors were secured from the inside. One of the doors “appeared to be opened or forced open in some manner. There were force marks on the door, but I had to reach inside and remove a nail that was secured.” Officer Shrum also testified that he found a bent “bracing bit” lying on the porch. The police entered the apartment and found the defendant standing in the kitchen. He had a mustache and was wearing a black nylon jacket and blue bib overalls.

Mr. Neal and Larry followed the police into the apartment. Upon searching the apartment, Mr. Neal discovered that the chest in which he keeps his clothes had been tampered with. The chain lock which secures the chest was broken. It had been secured when he left for work that morning. Mr. Neal also noticed that an extension cord that he kept in a closet next to the chest was missing. A radio that had been on a chair when he left for work was moved to the kitchen table. Nothing else was missing.

Officer Shrum arrested Cox for burglary, handcuffed him, conducted a cursory weapon search and took him to the police station. At the station, the police searched the defendant and took his clothes, except underwear. Officer Shrum noted that the overalls that the defendant was wearing were peculiarly constructed — “inside of each lower pants leg is another piece of material that looks like part of another trouser leg, and it’s sown [sic] to the inside. Then there’s a shoestring drawn through each, so that when it’s on the legs, the inside part can be drawn shut and tied.” At trial, out of the hearing of the jury, defendant objected to the introduction of the overalls as being prejudicial and of no probative value. The court overruled the objection, and the overalls were admitted.

Officer Shrum found an electric extension cord in one of the inside lower leg “pockets.” He initialed it and placed the department serial number on the plug. Later that evening, one of the officers took the cord to Mr. Neal for identification. Neal identified the cord as the one missing from his closet.

At the close of the state’s case, the defendant moved for judgment of acquittal on the ground that the state failed to prove the crime charged. The motion was overruled. The defendant offered no evidence, and at the close of all of the evidence the defendant again moved for judgment of acquittal which was again overruled. The court instructed the jury. The jury returned a verdict of guilty. Thereafter, on October 29, 1974, the court, having found from the evidence and the record that defendant had been convicted of a felony in Missouri, assessed punishment at imprisonment in the department of corrections for a period of ten years.

On November 21, 1974, the court overruled defendant’s motion for new trial, and on the same day, allocution having been granted, the court rendered judgment and pronounced sentence in accordance with the jury verdict.

As stated, defendant contends that the evidence is insufficient to make a submissi-ble ease.

The state’s case is based on both direct and circumstantial evidence. In order to make a submissible case based upon circumstantial evidence, however, the facts and circumstances must (1) be consistent with each other, (2) be consistent with the hypothesis of the guilt of the accused, (3) be inconsistent with innocence, and (4) point so clearly to guilt as to exclude every reasonable hypothesis of innocence. State v. Cain, supra, 507 S.W.2d at 441; State v. Gamache, 519 S.W.2d 34, 40 (Mo.App.1975).

The elements of the offense of burglary second degree are the breaking and entering with the intent to commit a felony or to steal therein. § 560.045; State v. Little, 501 S.W.2d 562, 563 (Mo.App.1973). To constitute a breaking, the force necessary need be no more than the pushing open of a door which has been shut. State v. Bradley, 485 S.W.2d 408, 412 (Mo.1972). And it has been said that the opening of an unlocked door constitutes a forcible breaking within the meaning of the second degree burglary statutes. State v. Fritz, 379 S.W.2d 589, 590 (Mo.1964).

The requisite intent to steal accompanying a charge of burglary can, of course, be proved from the circumstances of the case, and even where no stealing is shown, the intent to steal may be shown by circumstantial evidence. State v. Fritz, supra, 379 S.W.2d at 590; State v. Faber, 499 S.W.2d 790, 794 (Mo.1973); State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968). Intent is generally not susceptible of direct proof and may therefore be established by the circumstances of the case. State v. McCreary, 504 S.W.2d 132, 135 (Mo.App.1973); State v. Mills, 495 S.W.2d 715, 716 (Mo.App.1973).

Tested by these legal principles, we hold that the evidence when viewed in the light most favorable to the state is sufficient to make a submissible case. We have the following: A man was seen inside the Neal apartment by Neal’s son, Larry. Larry had shut the door when he went out to play. When the police arrived, they found both doors to the apartment secured. They found the defendant inside the apartment. One of the doors had “force marks” on it. The lock on Mr. Neal’s clothes chest had been tampered with, and his radio had been moved from a chair to the kitchen table. An electric extension cord was missing. The defendant was arrested and taken to the police station for processing. At the station, he was searched. It was discovered there that his overalls had “pockets” sewn on the inside lower legs. Inside one of these “pockets” the police found an electric extension cord which was later that evening identified by Mr. Neal as the one stolen from his apartment.

This evidence is consistent with the state’s hypothesis that defendant broke into and entered Neal’s apartment intending to steal and is sufficient to submit the issue of guilt to the jury.

Defendant suggests that the testimony concerning his comments to David Kessinger about using the bathroom raises a reasonable hypothesis of innocence. He contends that the facts and circumstances as a whole are not inconsistent with the theory that he entered the apartment with the intent and for the purpose of using the bathroom. However, a close reading of the testimony in this regard indicates that, if anything, the defendant asked David if he [David] wanted to use the bathroom. Mr. Neal testified that, after his arrest, defendant may have made a comment regarding using the bathroom. Defendant posits that when considering the time from which the defendant was first discovered by Larry to the time the police arrived, his presence in the apartment negates any inference of an intention to steal. We find it difficult to determine with any degree of certainty the time between Larry’s discovery of the defendant and the police’s arrival. However, we note that there is no evidence that the defendant saw Larry at the same time Larry viewed him, nor is there any indication that the defendant had any reason to suspect that someone had gone for help. His only confrontation was with David Kessinger, whom Larry, age ten, referred to as a “little boy.” In any event, the longer the time interval involved, the more inconsistent this would be with the theory that he entered the apartment to use the bathroom.

Defendant next contends that the court erred in overruling the objection to the introduction of his “bib overalls” into evidence. He contends that, since it was not shown that they were used in connection with a crime, they were inadmissible, and their introduction into evidence had a highly prejudicial effect in that the jury was permitted to draw an inference from their unique construction that defendant had an intent to steal.

The intent with which the defendant entered the Neal apartment is a material matter at issue between the parties. This matter may be proved through the introduction of circumstantial evidence from which the jury can reasonably infer that the defendant possessed the requisite intent to steal. Such circumstantial evidence is relevant and hence will be admitted “if it tends logically to prove or disprove, [or] to support or establish a fact or issue between the parties.” State v. Jenkins, 516 S.W.2d 522, 525 (Mo.App.1974); State v. Walden, 490 S.W.2d 391, 393 (Mo.App.1973). The evidence need not exclude every adverse possibility.

Here, defendant was discovered inside the victim’s apartment. He was wearing bib overalls which were found to have secret “pockets” sewn on the inside lower legs. Inside one of these inside “pockets” the police found an electric extension cord which Mr. Neal later that evening identified as the one stolen from his closet. Defendant argues that there is no showing that his overalls were used in the commission of a crime because at trial “[t]he victim stated that the extension cord found in the overalls was not his.” This was an issue for the jury to determine. On the day of the robbery, July 17, 1974, Mr. Neal identified the extension cord as the one stolen from his apartment. This cord was subsequently initialed by Officer Shrum, and the department serial number was placed on it. Although Mr. Neal did state at one point that the cord shown to him at trial was not the one that the police had brought to his home for identification and was not his, he later indicated at trial that he could not be certain if the cord shown to him at trial was his.

The fact that the overalls were uniquely constructed coupled with the fact that defendant when arrested was in possession of the victim’s extension cord provides sufficient evidence from which the jury could reasonably infer that the defendant entered Mr. Neal’s apartment with the intention to steal. Defendant cites a number of cases in which demonstrative evidence such as tools or weapons was admitted because relevant to some material issue. Defendant then argues that overalls do not fit the category of tools or weapons. But there is no requirement that relevant evidence be confined to tools or weapons. The unique construction of the overalls was such that the jury could reasonably infer that they were to be utilized in the commission of a burglary with intent to steal. The overalls were relevant and tended to have a bearing on the ultimate fact sought to be established. The charge alleged need not be proved by direct evidence but it may be done entirely by circumstantial evidence. State v. Stout, 198 S.W.2d 364, 367 (Mo.App.1946).

We believe that the overalls, uniquely constructed and adaptable for concealment purposes, are relevant to the issue of intent and were properly admitted for the consideration of the jury.

We have read the entire transcript, the briefs and authorities relied upon by the parties and conclude that (1) there was sufficient circumstantial evidence presented to make a submissible case, (2) the facts and reasonable inferences therefrom are consistent with each other, are consistent with the hypothesis that defendant committed the offense charged, and exclude every reasonable hypothesis of innocence, and (3) the court did not err in admitting the overalls into evidence.

Finding no prejudicial error, we affirm the judgment of conviction.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . Larry was questioned by the court out of the hearing of the jury. The court found that he understood what it meant to tell the truth, the consequences of lying, the difference between a lie and the truth, and had the intelligence and mental capacity to observe, retain and relate events. The court then ruled that Larry was competent to testify.

      . It is unclear from the record how far the foundry is from the Neal house. Mr. Neal testified that it was “[a]bout five blocks.”

      .It is difficult to determine from the record with any degree of certainty the time interval between Larry’s discovery of the man in the apartment and the arrival of the police. Larry testified that it took about ten minutes for him to run to the foundry. He had to talk to two people before he saw his father and reported seeing a man in the apartment. Mr. Neal remembered this to be at “about 5:30.” Mr. Neal testified that it then took him and Larry “I’d say about nine minutes” to get back to the apartment. Mr. Neal then started to enter the apartment but decided to call the police. Neal testified that the police arrived ten or fifteen minutes later. Officer Shrum testified that he and his partner received the radio call at “[a]bout 4:16 p. m.” He further testified that at the time he received the call he was on 14th Street and got to the Neal house in “I’d say less than a minute.”

      . There is some testimony to indicate that Larry sometimes plays the radio. However, Mr. Neal testified that the radio was on the chair because it could be plugged in from there. The radio was not plugged in when it was found on the table.

      . There is testimony by Mr. Neal that after they had placed the handcuffs on the defendant he said to Larry something like, “You were the little boy that was sitting at the front.” There is further indication that he may have said something “about using the bathroom.”

      . Officer Shrum testified that he conducted a cursory search of the defendant for weapons at the scene. He stated that he only “did a pat-down of his upper body” and did not reach along his legs.

        . Mr. Neal had trouble identifying the cord at trial. He testified on one occasion that the cord shown him at trial was not his and not the one the police brought to his house. He noted some differences in the socket. However, on another occasion at trial, Neal indicated that he was not sure if the cord shown him at trial was his.

      . “The long established rule prevailing in this state regarding the adequacy of circumstantial evidence to prove the essential elements of a criminal offense, and peripheral limitations attached thereto, is anciently rooted in State v. Hill, 65 Mo. 84 (1877) and asserted with positive clarity in State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963), wherein the court stated that when the state’s case rests upon circumstantial evidence ‘the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and ex-elude every reasonable hypothesis of his innocence.’ . . . State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970), with equal clarity, properly cautions that the circumstantial evidence rule in criminal cases should not be unduly distorted in its application: ‘In a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[;] . . . the mere existence of other possible hypothesis is not enough to remove the case from the jury.’ (Emphasis added.) . . ” State v. Brunson, supra, 516 S.W.2d at 803.

      . In State v. Brunson, supra, the Kansas City District held that the evidence was sufficient to support a charge of burglary second degree. The evidence showed that the homeowner secured the door; no one had permission to enter; two neighbors saw defendant and another go on the front porch, and one of the neighbors saw defendant peering in; the glass was broken and the door was slightly ajar; a policeman saw a shadow-type movement inside the house and ordered whomever was there out; the defendant came out; a dresser drawer was found open. Under these facts, the court held that the facts and reasonable inferences were sufficient to make a case of circumstantial evidence.
      In State v. Duncan, 336 Mo. 600, 80 S.W.2d 147, 151 (1935), it is stated that “if any valuable thing is kept or deposited [in a building], the act of breaking and entering the building is burglary.”

      . See State v. Russell, 324 S.W.2d 727 (Mo.1959), in which the court admitted into evidence “gloves” and a “crowbar” because they are common tools of burglars; State v. Johnson, 361 S.W.2d 662 (Mo.1962), in which the court allowed the introduction of a flashlight, pliers, hammer and large screwdriver into evidence; State v. Lindner, 282 S.W.2d 547 (Mo.1955), in which the court allowed into evidence, as relevant to and probative of an intent to steal, two revolvers and two crowbars found in the victim’s store.

      . In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the United States Supreme Court overruled some of its prior contrary rulings and elevated “mere evidence” to the status of instrumentalities, fruits of crime and contraband. In ruling that the seizure and introduction of “mere evidence” does not violate the Fourth Amendment, the Court stated: “Nothing in the language of the Fourth Amendment supports the distinction between .‘mere evidence’ and instrumentalities, fruits of crime, or contraband.” 387 U.S. at 301, 87 S.Ct. at 1647.
      Since the Hayden decision, “mere evidence” has been accorded equal evidentiary status with instrumentalities, fruits and contraband — subject only to tests of relevancy and materiality. See State v. Glenn, 431 S.W.2d 200, 204 (Mo.1968).


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Mildred SMITH, Defendant-Appellant.
    No. 9973.
    Missouri Court of Appeals, Springfield District.
    Sept. 2, 1975.
    John C. Danforth, Atty. Gen., Robert House, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Randolph Maness, Maness & Maness, Don-iphan, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Mildred Smith was found guilty of the first degree murder of her husband and sentenced to life imprisonment.

The verdict of the jury was returned January 9, 1975. No motion for new trial was filed nor application for or extension of time for such motion was made or granted within the 10-day period after the verdict. On January 21, 1975,' two days after the expiration of the 10 days allowed for the filing of the motion for new trial, the court entered an order granting defendant two weeks to file the motion.

Rule 27.20(a), in part, states: “Such motion [new trial] shall be filed before judgment and within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days . . . .”

Rule 31.02 provides: “Whenever by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court, for good cause shown, may at any time in its discretion, (1) with or without motion or notice order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect; but the court may not enlarge the period for filing a motion for new trial or for taking an appeal as provided by these Rules.” (Emphasis added).

The defendant’s motion for new trial was due to be filed within the 10-day period following the verdict [State v. Morse, 526 S.W.2d 432 (Mo.App.1975), decided August 22, 1975; Rule 27.20(a)], absent an application and the court’s extension of the time for filing the motion within the allotted time (Rule 31.02) and the court’s order of January 21, 1975, was unauthorized and a nullity.

“The provisions of Rule 27.20(a) relating to the time for filing a new trial motion are mandatory [State v. Tucker, 451 S.W.2d 91, 92[1] (Mo.1970)] and we are bound to recognize the late filing sua sponte as neither the court nor the parties can waive the rule’s requirements. State v. Rapp, 412 S.W.2d 120, 122[2] (Mo.1967). Having been filed tardily, the motion for a new trial was a nullity and preserved nothing for consideration. State v. White, 439 S.W.2d 752, 753[1] (Mo.1969).” State v. Morse, supra.

The abortive motion for new trial was overruled February 4, 1975, at which time allocution was granted and the court rendered judgment and pronounced sentence. Rules 28.03 and 81.04 mandate the notice of appeal shall be filed not later than 10 days after judgment. State v. Morse, supra. Defendant’s notice of appeal was filed February 18,1975, four days late. Adequate and timely filing of a notice of appeal is a prerequisite to our exercise of jurisdiction, and the notice of appeal having been out of time, and no special order entered as provided in Rule 28.07, we have no appellate jurisdiction of this case. State v. Morse, supra, and cases cited therein.

The appeal is dismissed.

All concur.


text:
    Walter R. DULEY, Appellant, v. Marie LEININGER, Respondent.
    No. 9947.
    Missouri Court of Appeals, Springfield District.
    Sept. 5, 1975.

      Gary L. Smith, Powell, Ringer & Smith, Dexter, for appellant.
    Paul McGhee, Dexter, for respondent.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

In this jury-waived case the court entered judgment against 87-year-old Walter R. Duley in his multiple-count suit against his daughter Marie and her husband. Plaintiff sought to recover the value of certificates of deposit, government bonds and silver coins allegedly converted by the defendants, to obtain cancellation of deeds conveying certain real estate to the defendants, and to recover punitive damages for alleged fraud and wrongdoing. Since this appeal was filed plaintiff has dismissed his son-in-law from the case and dismissed his appeal as to that portion of the judgment denying cancellation of the deeds. We affirm.

In this bench trial the scope of our review is governed by Rule 73.01, and while we review the case both upon the law and the evidence we give due regard to the opportunity of the trial judge to judge the credibility of the witnesses. Further, we accord deference to the trial judge’s conclusions where there is conflicting testimony [Schmitt v. Pierce, 344 S.W.2d 120 (Mo. banc 1961); Dill v. Poindexter Tile Co., 451 S.W.2d 365 (Mo.App.1970)], and the judgment is not to be set aside unless the evidence is palpably insufficient to sustain the lower court’s findings and judgment. Hounihan v. Farm Bureau Mutual Ins. Co. of Mo., 523 S.W.2d 173 (Mo.App.1975); R. L. S. v. J. E. S., 522 S.W.2d 5 (Mo.App.1975).

Since no findings of fact or conclusions of law were requested or made we must assume all fact issues were found in accordance with the result reached. Nutz v. Shepherd, 490 S.W.2d 366 (Mo.App.1973). We are obliged to accept as true the evidence and permissible inferences therefrom favorable to the prevailing party and disregard such testimony as is contrary thereto and not disturb the judgment unless it is clearly erroneous or, put another way, the evidence palpably insufficient. Hounihan v. Farm Bureau Mutual Ins. Co. of Mo., supra; Dill v. Poindexter Tile Co., supra.

Although plaintiff no longer raises any issue as to the deeds conveying his property, these conveyances shed some light on subsequent events and the viable issues in this appeal.

In the early 1930’s the plaintiff operated a machine shop in Dexter, Missouri. He was married to Sophia and they had two children, Marie and John R. A man named Dock Morris worked for plaintiff for some period of time. Dock Morris’ wife was Elizabeth Louise Penrod Morris, known as Lizzie.

In 1935 plaintiff conveyed all of his real estate, consisting of various town lots in Dexter, to his wife Sophia. Near the same time the Morrises moved from Dexter.

In 1959 Sophia and plaintiff conveyed a portion of the lots to Marie, reserving life estates. The remaining lots were similarly conveyed to their son, John R. Sophia died in 1966, and Marie and her husband moved from Michigan to Dexter. Plaintiff conveyed his life estate in some of the lots previously deeded to Marie to her, and she and her husband built a house on part of the realty.

In 1967 son John R. died intestate, leaving a widow, four daughters and a son, John W. In 1968 the widow and children of John R. conveyed back to plaintiff the lots deeded to John R. by his parents in 1959. Shortly thereafter, plaintiff conveyed several of these lots to John W. in fee. He then conveyed the other lots to his son’s widow and daughters with a life estate reserved in himself. Plaintiff also transferred by bill of sale the personal property and fixtures of the machine shop to his grandson, John W.

In 1970 plaintiff released to Marie the life estate he had previously reserved in the remaining lots he and Sophia had conveyed to her in 1959.

The Honorable Wallace Morgan, deceased Dexter attorney, prepared all of the instruments except the 1970 deed, the latter having been prepared at plaintiff’s request by the Honorable Elvis C. Mooney, Bloomfield attorney.

Over the years prior to 1971 the plaintiff had purchased government bonds and bank certificates of deposit. Originally these securities were issued in the joint names of plaintiff and Sophia, plaintiff and son John R., and plaintiff and Marie. After the death of his wife and son, plaintiff had the ownership of the bonds and certificates changed sp as to be payable to himself or Marie, or the survivor.

Lizzie remarried in 1958 to a Mr. Pauden and for some time before 1971 this couple was living in Poplar Bluff, Missouri. Lizzie and plaintiff had been “engaged” for various periods of time during the years preceding 1971 but in September of that year “became engaged to get married” although she and Mr. Pauden were still residing together in Poplar Bluff and their marriage was not terminated by divorce until February 1973.

In September of 1971 plaintiff and Marie appeared at Attorney Mooney’s office in Bloomfield. They had with them the bonds and certificates of deposit showing their joint ownership. Attorney Mooney knew both parties quite well since Sophia and Mrs. Mooney’s mother were sisters and his father-in-law, Rand Evans, deceased, and plaintiff had in past years discussed plaintiff’s property situation in Mr. Mooney’s presence. Mr. Evans and plaintiff had discussed with him, the possibility the latter might be sued because of plaintiff’s particular “situation” with another man’s wife. Attorney Mooney was aware of the “situation” and the wife involved was Lizzie.

The testimony of plaintiff and Marie as to the purpose of the 1971 visit to and the events which transpired in Attorney Mooney’s office conflict. The testimony of Attorney Mooney fully corroborates Marie’s testimony and is here summarized.

Plaintiff was fearful he might be sued by Lizzie’s husband, as well as by another party because of a recent automobile collision. He was apprehensive of potential judgment creditors obtaining the monies represented by the bonds and certificates and told Attorney Mooney he wanted Marie to have this money.

The attorney explained to plaintiff he could not prevent one with an existing claim from reaching the securities but as to future claims a present and complete transfer of ownership to the daughter would be effective. “I told [plaintiff] that his only alternative for future situations was to completely, if that’s what he wanted to do, was give them, make an absolute gift, and explained to him if he did that, he never could get them back.” Plaintiff said he did not want the securities back and handed them to Marie with the admonition to “go right then and have them transferred.” He told Marie “not to give them back, not give the money back to him under any circumstances, even if he came and demanded it back.” The bonds and certificates were in Marie’s possession when she and her father left Attorney Mooney’s office. Thereafter, the securities were reissued in her name alone.

Approximately a year later, in 1972, plaintiff and Marie returned to Attorney Mooney’s office. Plaintiff was wanting assurance that Marie’s sole ownership of the securities and the manner in which he had previously conveyed his real estate would prevent “them” from getting the money or real estate. “He wanted to be sure that it could not be reached, that it would stay in the name of the person that it had been placed in.”

During 1972 plaintiff and Lizzie were seeing each other, although she and her husband continued to occupy their home in Poplar Bluff. She told plaintiff they could not consummate their “engagement” by marriage until she could get “about $3,000.”

On January 26, 1973, following a stormy session the day before between plaintiff and Marie, the daughter gave her father $3,000. He turned this money over to Lizzie, and she used a portion of it to take her husband to Texas in January and pay his apartment rent ($750.00) for a year.

Lizzie obtained a divorce from Mr. Pau-den in February 1973, and on March 30, 1973, she and plaintiff married. This suit followed May 7, 1973.

On the record before us we have no difficulty in affirming the judgment of the trial court. We defer to his determination of the credibility of the witnesses and his resolution of conflicting testimony concerning the key issue of whether plaintiff made a valid inter vivos gift of the bonds and certificates to his daughter in September 1971.

The elderly plaintiff, usually in response to leading questions propounded by his attorney, testified his transfer of ownership of both his real estate and the securities originated with his daughter; that he never intended to give Marie his money and the change of ownership of the securities was so he would get more money [interest]. He understood the various real estate conveyances were “wills” and “If I signed a deed I didn’t know it.” On cross-examination plaintiff did not recall talking about the money represented by the securities in Attorney Mooney’s office, and said he did not deliver the securities to Marie at that time and did not talk to the attorney about having the joint ownership of the securities transferred solely to Marie. He denied his 1935 conveyance of all of his real estate to his wife was prompted by his fear of being sued by the then Lizzie Morris.

There is substantial evidence to support the circuit court’s conclusions. Attorney Mooney’s positive and unequivocal testimony is sufficient evidence to find a valid gift from plaintiff to his daughter. A present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee result in a valid inter vivos gift. In re Estate of Hoffman, 490 S.W.2d 98 (Mo.1973). There is evidence of each of these elements, and Marie’s ownership took effect immediately and absolutely in September 1971. Wantuck v. United Sav. and Loan Ass’n, 461 S.W.2d 692 (Mo. banc 1971), overruled on another point in In re LaGarce’s Estate, 487 S.W.2d 493 (Mo.1972).

In his brief plaintiff contends he did not intend to make a gift of the securities to Marie. His words and conduct in Attorney Mooney’s office refute this contention. No precise language is required in order to create a gift and one’s conduct is an enlightening ingredient in discerning one’s intent. In re Estate of Hoffman, supra at 103. Here, we have an expressed intent to give the securities to the donee accompanied by a physical delivery by the donor to the donee, in a third person’s presence, of the subject matter of the gift. The donee, Marie, accepted delivery of the securities before leaving Mr. Mooney’s office and immediately took the necessary steps to have the securities reissued in her name alone.

Plaintiff also contends there existed a confidential and fiduciary relationship between him and his daughter and he was the victim of her undue influence — even while they were in Attorney Mooney’s office. In furtherance of this position he also states that by reason of the cousin kinship between Marie and Mrs. Mooney a confidential and fiduciary relationship existed between plaintiff and Attorney Mooney.

We have laboriously reviewed the transcript in its entirety. We are of the view a normal and natural daughter and father relationship existed between Marie and her father until a short time prior to his and Lizzie’s marriage. Marie was opposed to the marriage and advised Lizzie that plaintiff did not have money or property. At the time of the visit to Mr. Mooney’s office in 1971, the record strongly indicates the plaintiff knew what he was doing and why. The trial judge was in a position to carefully weigh the testimony of and observe the witnesses as they testified and determined the charges of undue influence and confidential and fiduciary relationship against the plaintiff. We find nothing in the record to support the charge of there being a confidential relationship between plaintiff and Mr. Mooney.

The only evidence relating to the $500 in silver coins came from plaintiff. He said he had turned these coins over to Marie for “safekeeping” [buried under her house] and she had refused to give them back. Since other evidence, uncontradicted, demonstrates that plaintiff received $3,465 [cash and bills paid for plaintiff] from his daughter, and plaintiff pleaded defendant was entitled to credit of $3,000, we find no error in the judgment denying plaintiff recovery of the $500.

In view of the foregoing, plaintiff’s points concerning interest on the securities and punitive damages are not for review.

The judgment is affirmed.

All concur.

      . Another $200.00 was paid by Lizzie to her Poplar Bluff attorney as a retainer to initiate this suit.

      . Plaintiff also argues lack of acceptance by Marie. In addition to the facts recited showing an acceptance, plaintiffs argument overlooks the rule that where a gift is beneficial and imposes no burden on the donee, acceptance will be presumed even if the donee never assumes possession. In re Estate of Hoffman, supra.


author: HENRY, Justice.

text:
    Ann N. MOREDOCK, Petitioner, v. Douglas McMURRY, et al., Respondents.
    Supreme Court of Tennessee.
    Sept. 8, 1975.
    W. Thomas Goodall, Jr., Charles W. Bone, Gallatin, for petitioner.
    William H. Woods, Goodpasture, Carpenter, Woods & Sasser, Nashville, for McMur-ry-
    James M. Hunter, Gallatin, for Green Executors.
    Thomas A. Higgins, Cornelius, Collins, Higgins & White, Nashville, for Colonial Baking Co.
    Thomas H. Peebles, III, Trabue, Sturdi-vant & DeWitt, Nashville, for Green & Little.
    R. B. Parker, Jr., Parker, Nichol & Finley, Nashville, for Maness, Executor.
   OPINION

HENRY, Justice.

The sole issue with which we deal is the proper practice under Rule 51.01, Tennessee Rules of Civil Procedure.

We have considered the opinion of the Court of Appeals in the light of the petition for the writ of certiorari and the most excellent briefs submitted by all counsel and, except to the extent of its treatment of Rule 51.01, Tennessee Rules of Civil Procedure, we are in full accord with the findings and conclusions of that court.

We deny the petition with a published opinion because we consider it in the best interests of the bench and bar that the new Rules of Civil Procedure be interpreted, construed and clarified with all deliberate speed.

This wrongful death action was tried to a jury in the Circuit Court at Gallatin. Prior to the jury charge counsel had submitted numerous special requests. The record affirmatively shows that the court declined to inform counsel of its proposed action on these requests and persisted in that refusal in the face of a specific motion for compliance with the rule.

In passing upon the assignment raising this question, the Court of Appeals said:

We adopt the minority rule, namely that it is reversible error for the Trial Judge to fail to comply with Rule 51.01. The rule is a wholesome one. Its purpose is to enable counsel to present more intelligently his client’s case to the jury and determine more intelligently whether he should ask for further special charges. (Italics ours)

We agree with the Court of Appeals that this is a wholesome rule and that failure of the trial judge to abide it is error; however, we are not prepared to hold that reversal is demanded in each and every case wherein the Rule is violated. Whether this is reversible error would depend upon many factors, including the complexity of the issues, the number of special requests, their nature, purpose and merit, the necessity for them and, above all, the existence of a bona fide and particularized need for the guidance of counsel in advance of argument.

This is a question of first impression in this jurisdiction; however, Rule 51.01 of the Tennessee Rules of Civil Procedure is identical with Rule 51 of the Federal Rules of Civil Procedure to the extent of this provision. Decisions under the Federal Rules are, therefore, persuasive.

The requirement that the judge inform the parties prior to final argument of his action on requested instructions enables the parties to argue the instructions to the jury without being surprised when the instructions are given. Hetzel v. Jewel Companies, 457 F.2d 527 (7th Cir. 1972).

As noted in the Court of Appeals opinion, the majority of decisions from other jurisdictions seem to require an affirmative showing of “material prejudice” before awarding a new trial for failure of the trial court to announce which requests will be charged and which will be refused. See 91 A.L.R.2d 836, Anno. “Disclosing Proposed Instructions”, 1963.

In the case of Hardigg v. Inglett, 250 F.2d 895, 897 (4th Cir. 1957), objection was made to the trial court’s refusal to inform counsel, in advance of arguments to the jury, of its proposed action upon written requests for instructions. The court held that Rule 51 of the Federal Rules of Civil Procedure was mandatory on the court to so inform counsel. The court further stated, however, that noncompliance with the Rule does not warrant a new trial unless material prejudice can be shown to exist.

In a Tennessee case, Bradshaw v. Thompson, 454 F.2d 75, 81 (6th Cir. 1972) where the appellant objected to the district court’s refusal to inform counsel of its intended jury charges prior to closing argument as required by the Rule, the court noted only that “mechanical and administrative reasons” existed for this failure. The court recognized that:

“Although this does not satisfy the unconditional mandate of the rule, noncompliance does not warrant a new trial unless material prejudice is shown to exist.”

In Garland v. Material Service Corporation, 291 F.2d 861 (7th Cir. 1961), the trial judge refused to hold a conference and go over the instructions which had been tendered. The judge advised counsel that he was going to give the “essential Jones Act instructions”, and plaintiff’s counsel did not request permission to read the instructions before argument. The court held that Rule 51 did not require the trial judge to go over each of the instructions which he proposed to give, and that although he did not strictly comply with the Rule, nevertheless he substantially complied by indicating the nature of the charge he would give to the jury.

The case before this Court can be differentiated from the three aforementioned cases.

In Hardigg, supra, no exception was noted by counsel to the trial judge’s charge and no contention was made as to the correctness or incompleteness of the charge. In this case, exceptions were noted and the correctness and completeness of the charge were challenged.

In Bradshaw, supra, there is no indication that counsel requested to be informed of the proposed instructions. In this case, counsel timely requested the charge information from the trial judge; the trial judge, in essence, advised that he was not going to divulge which requests would be charged because it would take too much time.

In Garland, supra, the court held that noncompliance with Rule 51 was not reversible error because the trial judge had substantially complied by indicating the nature of the charge. In this case, numerous requests had been offered and it was impossible for counsel to know which ones would be charged. The record does not disclose how the trial judge substantially complied by indicating the nature of the charge. He did make the statement that he had charged everything that everyone had asked for and all that he could think of, nevertheless, exceptions were noted to the charge.

We hold that pursuant to Rule 51.01, Tennessee Rules of Civil Procedure, the trial court is under a mandatory duty to inform counsel in advance of argument, of its proposed action on each special request; that failure to so inform counsel is error; however, any inadvertent noncompliance is not reversible error unless material prejudice is shown to exist. Where a trial judge consciously and affirmatively refuses to abide the rule the error is reversible absent a showing of a lack of prejudice.

Writ denied.

FONES, C. J., and COOPER and BROCK, JJ., concur.

HARBISON, J., did not participate.

      . Rule 51.01 reads as follows:
      “51.01. Requests for instructions At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. The court may, in its discretion, entertain requests for instructions at any time before the jury retires to consider its verdict.”


author: PER CURIAM.

text:
    Julian GUILLORY, Jr., Petitioner, v. Ruby DAVIS, and in the interest of Children, Respondent.
    No. 7729.
    Court of Civil Appeals of Texas, Beaumont.
    April 24, 1975.
    Ernest J. Browne, Sr., Beaumont, for appellant.
    George W. Morris, Conroe, for appellee.
   PER CURIAM.

Petitioner has filed an application for leave to file a petition for a writ of prohibition as an original proceeding in this court. He alleges that the Court of Domestic Relations of Jefferson County, Texas, first acquired jurisdiction of a proceeding involving custody of the children involved in this cause, and has continuing jurisdiction over such children under the provisions of Tex. Family Code Ann. § 11.05(a) (1975). His suit, filed on March 25, 1975, contained an allegation reading: “No other Court has continuing jurisdiction of this cause and this Court has continuing jurisdiction of this cause.” Tex.Family Code Ann. § 11.-08(b)(1) (1975). According to the file marks shown upon the pleading, Cause No. 9010BG was filed in Jefferson County at 9:09 a. m., March 25, 1975.

The petition for the writ also contains a certified copy of a similar petition, filed on behalf of the mother of the children in the District Court of Montgomery County, on March 25, 1975, at 4 p. m., wherein the mother seeks custody of the same children. She makes the allegations that the Montgomery County court has continuing jurisdiction under § lL08(b)(l).

Upon presentation of the verified plea, the Jefferson County court issued an order directing the sheriff or any constable to pick up the children and restore their custody to petitioner in Jefferson County. The Montgomery County court, also acting upon the verified petition, ordered said children turned over to the mother and ordered a hearing to determine the custody of said children in that proceeding.

Upon presentation of the application for leave to file the petition, we ordered a notice to show cause to issue, returnable on April 10, at which time we invited argument as to our jurisdiction to entertain petitioner’s motion for leave to file.

Having examined the record and the authorities, we are of the opinion that this court does not have jurisdiction to entertain the application or to grant the writ, and the application for leave to file is now denied for the reasons to be stated.

Our appellate jurisdiction has not been invoked in any manner by any party to this proceeding; instead, petitioner seeks to prohibit the presiding judge of the District Court of Montgomery County from further proceeding with the cause now pending in that court by invoking our original jurisdiction.

In Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, 578 (1914), Justice Phillips, speaking for the Supreme Court, laid down a rule applicable to this court, saying:

“This court is not invested with any power of general superintendence of the inferior courts of the state; its control of their proceedings is purely appellate in its nature, with certain well-defined exceptions which are unrelated to the present case; and its authority to issue the writ of prohibition is by the Constitution and the statute limited to the enforcement of its own jurisdiction.”

In Texas Employers’ Ins. Ass’n v. Kirby, 150 S.W.2d 123, 124 (Tex.Civ.App.—Dallas), approved, 137 Tex. 106, 152 S.W.2d 1073 (1941), the court set out the entire constitutional and statutory base of the jurisdiction of the Courts of Civil Appeals to issue extraordinary writs in the exercise of its original jurisdiction. The court gave careful consideration to Tex.Const. art. V, § 6; Tex.Rev.Civ.Stat.Ann. arts. 1819, 1828, and 1824 (1964), before concluding that it had no jurisdiction to issue the writ of prohibition in the exercise of its original jurisdiction.

Although we have potential jurisdiction to review the assumption of jurisdiction by the District Court of Montgomery County upon appeal from a final judgment, we are not “authorized to assume active jurisdiction over any subject matter until invoked in the prescribed manner, for the simple reason that, it [Court of Civil Appeals] has not been given general supervisory control over district and county courts.” Kirby, supra (150 S.W.2d at 125).

In Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61 (1958), Justice Walker, citing both Kirby Cases, supra, laid down the rule governing the disposition of this ease:

“A court which is authorized to issue extraordinary writs to enforce its jurisdiction may not exercise that power in aid of its potential jurisdiction. It is only after that jurisdiction has been invoked in the manner prescribed by law and has thus become active that the court may act to enforce or protect the same.”

See also, Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex.1969).

Petitioner cites four cases, all decided by the Galveston Court of Civil Appeals before Kirby was handed down: Driscoll v. Casstevens, 110 S.W.2d 958 (Tex.Civ.App.—Galveston 1937, orig. proceedings); Guaranty Building & Loan Co. v. Brazil, 141 S.W.2d 694 (Tex.Civ.App.—Galveston 1940, orig. proceedings); National Debenture Corporation v. Adams, 115 S.W.2d 757 (Tex.Civ.App.—Galveston 1938, orig. proceedings); O. K. Theatres, Inc. v. Johnson, 145 S.W.2d 628 (Tex.Civ.App.—Galveston 1940, orig. proceedings), in support of jurisdiction to grant the relief sought.

The first three of the cases mentioned above were discussed at length in Kirby, supra, and Justice Looney, the author of the opinion of the Dallas Court in Kirby, registered his “dissent.” (150 S.W.2d at 125) The fourth case cited, O. K. Theatres, simply follows the earlier decisions and falls with Casstevens, et al. Thus, all of petitioner’s authorities were effectively overruled because the Supreme Court in Kirby said: “The Court of Civil Appeals very correctly held that it had no jurisdiction to grant the relief sought in that Court.” (152 S.W.2d at 1073)

Although we are not clothed with jurisdiction to issue the appropriate writs necessary to end this unseemly conflict between two courts of coordinate jurisdiction, we would be remiss in the discharge of our duties if we did not voice our disapproval of such a conflict.

Our record discloses that the Court of Domestic Relations in Jefferson County “has been informed by the State Department of Public Welfare that the children] [have] not been the subject of a suit affecting the parent-child relationship.” Tex. Family Code Ann. § 11.05(c) (1975). Thus, it has continuing jurisdiction. Obviously, since two courts cannot have continuing jurisdiction over the same children at the same time, the District Court of Montgomery County will be unable to rest its jurisdiction upon the provisions of § 11.05.

It has been axiomatic, at least since Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1070 (1926), that jurisdiction attached upon the filing of the suit in Jefferson County and that it cannot be taken away or arrested by the subsequent proceedings in another court.

Yet, under our present constitution, statutes, and authoritative decisions, we are powerless to act. However, once our appellate jurisdiction is invoked, we will have full and almost plenary authority to issue such writs as may be necessary to protect and enforce our appellate jurisdiction. Kirby Case, supra (150 S.W.2d at 126). See also, J. Norvell, “Original Jurisdiction of the Courts of Civil Appeals to Issue Extraordinary Writs,” 8 Sw.LJ. 389, 392-393 (1954), and cases cited.

Leave to file the application for the writ of prohibition is denied for want of jurisdiction.


author: CADENA, Justice.

text:
    Gregorio P. ZEPEDA, Jr., Appellant, v. AMERICAN NATIONAL INSURANCE CO., Appellee.
    No. 15367.
    Court of Civil Appeals of Texas, San Antonio.
    May 28, 1975.
    Rehearing Denied Oct. 1, 1975.

      James L. Branton, Hardberger, Branton & Herrera, San Antonio, for appellant.
    Thomas H. Sharp, Jr., San Antonio, for appellee.
   CADENA, Justice.

Plaintiff, Gregorio P. Zepeda, Jr., seeks reversal of a judgment, following a non-jury trial, denying him recovery for the death of his minor child under a family life insurance policy issued by defendant, American National Insurance Company.

Plaintiff purchased the insurance in question from defendant on November 8, 1965. At that time plaintiff was married to Maria Elena Zepeda. The policy named plaintiff as “the insured,” and named his then wife, Maria Elena, as “insured spouse.” Under the terms of the policy, defendant bound itself to pay $5,000.00 upon the death of plaintiff, the insured, $1,000.00 on the death of the “insured spouse” and $1,000.00 on the death of “each covered child.”

Two children were born to plaintiff and Maria Elena, one in 1966 and the other in 1968. The amount of premium payable under the policy was not affected by the number of children covered by the policy. The premium for the insurance on the life of plaintiff is $6.97 per month, and the premium for the insurance covering the “insured spouse” is $1.30 per month.

Plaintiff and Marie Elena were divorced in the spring of 1969, and in January, 1970, plaintiff married his present wife, Consuelo. Two children were born to plaintiff and Consuelo, the younger of which was Rachel Marie, who was born on July 30, 1972. Rachel Marie died on November 23, 1972, and by this suit plaintiff seeks to recover for death of such child. The judgment of the trial court is based on the conclusion that the deceased infant, Rachel Marie, was not a “covered child” under the policy.

It is undisputed that plaintiff has paid all premiums due and that the policy was in full force and effect at the time of the death of Rachel Marie. The policy was never changed to substitute Consuelo Zepe-da, plaintiff’s second wife, for Maria Elena Zepeda as “insured spouse.”

The policy contains the following definitions:

“THE INSURED: The term ‘THE INSURED’ shall mean the Insured named in the application for this Policy and specified on the Policy Data. Page.
INSURED SPOUSE: The term ‘INSURED SPOUSE’ shall mean the Spouse named in the application for this Policy and specified on the Policy Data Page.
COVERED CHILD: A child or legally adopted child of the Insured and Insured Spouse or a stepchild of the Insured or Insured Spouse shall be a Covered Child provided such child was named in the application and was born at least 15 days prior to the effective date of this Policy. A child born to the Insured and Insured Spouse after the effective date of this Policy shall become a Covered Child on the date such child attains age 15 days. A child legally adopted by the Insured after the effective date of this Policy shall become a Covered Child on the date such child was adopted or on the date such child attains age 15 days, whichever date is later. A child shall cease to be a Covered Child on the policy anniversary following such child’s 25th birthday.”

Both the application for the policy and the “policy data page” identify “the insured” as plaintiff, Gregorio P. Zepeda, Jr. The application names plaintiff’s then wife, Maria Elena, as “spouse.” The “policy data page” identifies “insured spouse” as Maria Elena Zepeda. It is clear, then, that in reading the policy, the term “the insured” must be read as “Gregorio P. Zepeda, Jr.,” while “insured spouse” must be read as “Maria Elena Zepeda.” With this in mind, the definition of “covered child” establishes the following categories:

1. A child of Gregorio P. Zepeda, Jr., and Maria Elena Zepeda, who is named in the application and was born at least 15 days prior to November 8,1965, the date of the policy. No contention is made that the deceased infant is included within this category.

2. A stepchild of Gregorio P. Zepeda, Jr., who is named in the application and was born at least 15 days prior to November 8, 1965. The deceased infant clearly does not fall within this category.

3. A stepchild of Maria Elena Zepeda who is named in the application and was born at least 15 days prior to November 8, 1965. This category does not include the deceased infant.

4. A child born to Gregorio P. Zepeda, Jr., and Maria Elena Zepeda after November 8, 1965, and who attains age 15 days. Rachel Marie, the deceased infant, was born to Gregorio P. Zepeda, Jr. and his second wife, Consuelo Zepeda, and, therefore, is not a “covered child” within this portion of the definition.

5. A child legally adopted by Gregorio P. Zepeda, Jr., after November 8, 1965, and who has attained age 15 days. The deceased child does not fall within this class.

If effect is given to the plain language of the policy, it must be concluded that Rachel Marie was not within any of the categories established by the definition of “covered child.”

Plaintiff argues that the “definition of ‘covered child’ was a description of the limits of relationship between the insured and a minor child so as to constitute said child a. ‘covered child,’ and not an all-inclusive, exhaustive definition of all relationships which constituted a ‘covered child.’ ” That is, plaintiff asserts that the definition of “covered child” merely describes “the outside limits or parameters of the covered relationships,” and that, since the coverage “extends to an adopted child of the insured alone,” it “necessarily includes relationships within the outer limit, to-wit: a natural child of the insured alone.”

We find nothing in the language of the policy to support this interpretation. In effect, plaintiff contends that the definition of “covered child” should be construed as though it were prefaced by the clause, “the term ‘Covered Child’ shall include, but shall not be limited to, the following:” or that the definition of “insured spouse” should be changed to, “The term ‘Insured Spouse’ shall mean the Spouse named in the application for this Policy and specified on the Policy Data Page, or any subsequent Spouse of the Insured.” It might be pointed out that even this re-wording of the definition of “insured spouse” would not be sufficient to justify plaintiff’s interpretation of the policy as extending to a “natural child of the insured alone,” since the term “natural child,” in both its technical and popular meaning, means an illegitimate child. Gibson v. Dickson, 178 S.W. 44, 48 (Tex.Civ.App.—Dallas 1915, writ ref’d); State v. Coliton, 73 N.D. 582, 17 N.W.2d 546, 549 (1945). We find no basis in the policy for changing the definition to read, “The term ‘Covered Child’ shall mean any child, adopted child or stepchild of the Insured.”

Plaintiff, relying on the testimony of one of defendant’s agents, insists that for 12 years preceding the trial of this case, defendant had interpreted the definition of “covered child” to mean “that if the child’s last name was the same as ‘the insured,’ then it was a ‘covered child’ under the definition.”

The testimony of the defendant’s employee does not support plaintiff’s contention. It is clear from the testimony that this employee was merely testifying as to representations which he made to persons whom he described as “my policyholders.” His testimony clearly relates to what he describes as “my own opinion” and his understanding. He stated, “As far as I understand ... as long as they have the same last name, step-children or natural-born children,” they are covered. It would require no little straining to interpret this testimony as establishing that defendant itself, as distinguished from this particular employee, interpreted the definition as covering children born after the issuance of the policy to the insured by a spouse other than the spouse identified in the policy.

The policy itself recites that the policy cannot be modified except by an endorsement signed by the president, a vice-president or the secretary of defendant. Under this recital, as well as under the provisions of Section 21.04, Tex.Ins.Code Ann. (1963), whatever statements the employee made to plaintiff following plaintiff’s second marriage cannot be given the effect of modifying the terms of the policy so as to extend the coverage of the policy. Therefore, the trial court did not err in sustaining defendant’s motion in limine to exclude representations made by the employee to plaintiff to the effect that Rachel Marie was covered by the policy. In any event, plaintiff was permitted to testify to the effect that, after he had divorced Maria Elena and married Consuelo, the employee had assured him that any children born of the second marriage would be covered. The evidence which plaintiff claims was wrongfully excluded was, in fact, admitted.

Defendant’s employee testified that an insurance policy of the type purchased by plaintiff can be purchased by one who does not, at the time he purchases the policy, have a spouse. He also testified that this type policy can be purchased by a married man who elects not to have his wife covered and, therefore, the policy would not include an “insured spouse.” Much of the testimony of this witness shows a clear lack of understanding of the provisions of the policy in question. The policy is identified in the application as a “two-parent family policy.” The policy shows on its face that it contemplates the insurance not only of the “insured,” but also of his spouse. On its face, the policy is labeled: “Non-Participating Family Policy — Whole Life Insurance with Accidental Death Benefit on Insured and Insured Spouse — Term Insurance on Each Covered Child to Policy Anniversary Following Such Child’s 25th Birthday.” It may be conceded that a “spouseless” insured can purchase a policy insuring him and his children, or that a married man may purchase a policy insuring him and his children but not his spouse. But it is difficult to understand how such a policy could be referred to as a “two-parent family policy” or as a “Non-Participating Family Policy” affording life insurance to “Insured and Insured Spouse.” Nor can it be readily understood how such a policy would contain a definition of “insured spouse” and define “covered child” with reference to the “insured” and “insured spouse.”

The record indicates that, at the close of the evidence on February 18,1974, the trial judge announced from the bench that his judgment was in favor of plaintiff. At that time counsel for plaintiff announced that he would prepare the judgment. The judgment was not prepared, and on March 26, 1974, the court, at the request of counsel for defendant, summoned plaintiff’s counsel and inquired why a judgment had not been tendered. Plaintiff’s counsel explained that the press of business had prevented his preparing the judgment and tendering it to opposing counsel and the court. The court then announced that it had changed its mind and was rendering judgment for defendant.

Plaintiff complains that the court erred in “carrying on ex parte proceedings on the merits without the knowledge of Plaintiff’s attorney after . . . judgment had been announced for Plaintiff and before the final judgment was tendered to the Court for entry. . . . ” The record does not disclose the holding of such ex parte proceedings. According to the transcript of the March 26 proceedings, counsel for defendant had ordered the record in the case, apparently preparatory to an appeal of the judgment previously announced orally, and had presented such statement of facts, together with the policy, to the court. We do not believe this establishes that the trial court conducted ex parte proceedings.

We also overrule plaintiff’s contention that the trial court erred in “changing its judgment on the merits in this case by reason of a small delay in tendering the judgment to the Court for entry. . . . ” There is nothing in the record to establish that the delay by plaintiff’s counsel in presenting a judgment for entry caused the trial judge to change his mind or influenced the final decision in any way. The trial court stated that he changed his mind after carefully re-reading the provisions of the policy.

The judgment of the trial court is affirmed.


author: CADENA, Justice. BARROW, Chief Justice

text:
    William R. CLENDENIN, Appellant, v. Lois Joy KROCK, Appellee.
    No. 15371.
    Court of Civil Appeals of Texas, San Antonio.
    June 11, 1975.
    Rehearing Denied Oct. 1, 1975.

      Forrest A. Bennett, Bennett & Leger, San Antonio, for appellant.
    Gardner S. Kendrick, San Antonio, for appellee.
   CADENA, Justice.

Plaintiff, Lois Joy Krock, filed this suit against her former husband, William R. Clendenin, for partition of United States Air Force Retirement benefits which had not been disposed of by the divorce decree, entered June 11, 1969, dissolving the marriage between plaintiff and defendant. Defendant appeals from a judgment that plaintiff recover of defendant the sum of $7,904.58, representing plaintiff’s community interest in the retirement benefits received by defendant from the date of the divorce to the date of judgment in this case, and ordering defendant to pay to plaintiff 45.28% of each retirement payment received by defendant in the future. The judgment recited that defendant would receive 45.28% of each future-payment as trustee for plaintiff.

This suit was filed by plaintiff on June 19, 1973, more than four years after the entry of the divorce decree. The divorce deci’ee recited that there was no community property acquired by the parties during their marriage.

Defendant entered the military service of this country on January 6, 1948, while he was a single man. Defendant and plaintiff were married in Guadalupe County, Texas, on December 31, 1948, and remained husband and wife until they were divorced in Bexar County, Texas, on June 11, 1969. Defendant retired at Randolph Air Force Base, Texas, on January 30, 1970. The judgment below is based on the fact that defendant retired after 265 months of service, and that plaintiff and defendant were husband and wife for 240 months during that period.

Defendant first asserts that the judgment is erroneous because the evidence establishes that the parties were residents of Texas for only three years during the time he was in the military forces, and that during the remainder of the time he spent in the service they were not residents of any state which had adopted the community property system.

We find no such evidence in the record. Defendant’s contention is supported by a reference to the transcript. The reference is to an instrument, incorporated in the transcript, embodying defendant’s answers to written interrogatories propounded by plaintiff under the provisions of Rule 168, Tex.R.Civ.P. (1975 Supp.). These answers were not introduced in evidence by either of the parties.

' Defendant next contends that the judgment in the divorce case is res judicata on the question of property rights, and that plaintiff may not now attack, directly or collaterally, such judgment.

It is well settled that where a “divorce decree fails to provide for a division of community property, the husband and wife become tenants in common or joint owners thereof.” Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). Busby contains a direct holding contrary to defendant’s contention that partition of community property not disposed of in a prior divorce proceeding is barred by the doctrine of res judicata. The rule permitting a subsequent suit for partition of unpartitioned community property is applicable even when the divorce decree recites that the parties acquired no community property during the marriage. The recitation in a divorce decree that no community property was acquired during the marriage “is not res judi-cata so as to prevent” plaintiff from bringing a suit to partition property shown to have been community property. Harkness v. McQueen, 207 S.W.2d 676, 679 (Tex.Civ.App.—Galveston 1947, no writ). Since the property here involved was not brought within the jurisdiction of the court in the divorce proceedings, it cannot be said that the divorce decree operates as a bar against the bringing of this action. Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ).

Under such authorities, plaintiff’s suit in this case is not a collateral attack on the divorce decree. It is simply a suit brought by one tenant in common or joint owner against another with reference to property not affected by the prior divorce decree. See also Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirberg v. Worrell, 44 S.W.2d 940 (Tex.Comm’n App.1932, holding approved).

There can be no doubt that under the holdings in Busby, Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.—San Antonio 1968, writ dism’d), and Kirkham v. Kirkham, 335 S.W.2d 393 (Tex.Civ.App.— San Antonio 1960, no writ), the retirement benefits were community property to the extent determined by the trial court.

Defendant next complains that the judgment is erroneous in that the trial court failed to take into account money and furniture received by plaintiff in connection with the prior divorce. This contention is without merit. As was clearly pointed out in Busby, the actual division made in connection with the divorce proceeding has no effect on a subsequent suit seeking partition of property not disposed of by the divorce decree. 457 S.W.2d at 555. The action taken by the trial court here is identical to the judgment of the Austin Court of Civil Appeals which was affirmed by the Supreme Court in Busby.

Defendant points out that, in the divorce suit, plaintiff testified that there was no community property. There is no evidence to this effect, but we may safely assume that the finding by the divorce court that there was no community property was based on some testimony, and the record indicates that only plaintiff testified at the divorce hearing. In any évent, this is irrelevant under the holding in Harkness v. McQueen, supra.

Defendant calls our attention to the opinion of the Amarillo Court of Civil Appeals in Ladd v. Ladd, 402 S.W.2d 940 (1966, writ ref’d n. r. e.), holding that a prior divorce decree partitioning specified community property barred a subsequent suit in which one of the parties to the divorce suit to recover part of the property alleged to be community property. However, in Ladd, there was a finding to the effect that the property rights being asserted in the second suit were the same rights which were put in issue in the divorce case. 402 S.W.2d at 941. In the case before us, the community property rights being asserted by plaintiff were not put in issue in the divorce suit. In any event, Ladd was not followed by the Austin Court of Civil Appeals in its decision in Busby v. Busby, 439 S.W.2d 687 (1969), which, of course, was affirmed by the Supreme Court.

The trial court did not err in decreeing that defendant, to whom the benefits are to be paid, should receive the payments as a constructive trustee for the benefit of plaintiff to the extent of plaintiff’s interest in such payments. Marshall v. Marshall, 511 S.W.2d 72 (Tex.Civ.App.—Houston [1st District] 1974, no writ). See also Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961); Marks v. Marks, 470 S.W.2d 83 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.); McBean v. McBean, 371 S.W.2d 930 (Tex.Civ.App.—Waco 1963, no writ).

The judgment of the trial court is affirmed.

BARROW, Chief Justice

(concurring).

I concur in the result. The record here does not establish that the retirement benefits were adjudicated in the original divorce proceeding; therefore, the finding of the trial court that there was no community property is not res judicata of the issue. We would have a different situation if the retirement benefits were before the court, and the court had erroneously concluded that these benefits were not community property.


author: NYE, Chief Justice.

text:
    Guadalupe FONSECA et ux., Appellants, v. COUNTY OF HIDALGO, Texas, Appellee.
    No. 954.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 19, 1975.
    Rehearing Denied Aug. 29, 1975.

      Eduardo E. de Ases, Corpus Christi, for appellants.
    Travis Hiester, Edinburg, for appellee.
   OPINION

NYE, Chief Justice.

The appellants seek to set aside an agreed judgment on the grounds of mistake. A final judgment in a condemnation case was signed and entered by the trial court on September 3, 1974, awarding to appellants $29,245.00 for a right of way easement on a tract of land owned by appellants and located in Hidalgo County, Texas. Three days later, the appellants filed a motion to set aside the final judgment entered on the ground of unilateral mistake. The trial court denied appellants’ motion. It is from that ruling that the appellants have duly perfected their appeal to this Court.

This action originated when the County of Hidalgo brought suit to condemn certain rights of way and easements necessary for the completion of a flood control project. The land, upon which these easements were located, was owned by Guadalupe Fonseca and wife, Otilia Fonseca, hereinafter referred to as appellants. The County requested that special commissioners be appointed to assess any and all damages which may result from the County’s exercise of their rights of eminent domain.

On May 22, 1974, the special commissioners, after hearing evidence, found and assessed damages to be paid by the County in the amount of $29,114.00. Subsequent to the award of the commissioners, certain objections and exceptions were levied on behalf of Mr. and Mrs. Fonseca to the award of the special commissioners and notice of appeal was duly filed in this proceeding. Appellants more specifically complained that the award of the commissioners was grossly insufficient, inadequate and less than the fair market value of the land. Thereafter, the County deposited into the registry of the court a check in the amount of $29,114.00 to cover the commissioners’ decree.

Negotiations then ensued between the appellants and H. M. Pike, the director of Hidalgo County’s right of way department. The appellants and the County’s agent agreed to settlement terms whereupon the appellants signed and executed easement deeds in favor of the County covering the lands owned by appellants. The County then sent an agreed judgment to appellants’ attorney, the Honorable Eduardo de Ases, together with copies of two executed easement deeds for his approval and signature. Appellants’ attorney did not contact his clients concerning this matter, but instead signed the agreed judgment and returned it to the court where final judgment was entered on September 3, 1974.

The two easement deeds reflect that the appellants granted to appellee an easement to enter and re-enter certain lands for the purposes as set out therein. The appellants were to receive the sum of $29,114.00 for such easement. The County’s exhibit 1 reflects, in addition, the receipt of certain monies from the appellants as set out below:

August 8, 1974
Received of Guadalupe Fonseca and wife, Otila (sic) Fonseca, $569.00, in cash, which, along with a credit of $131.00 due from Hidalgo County as balance for said easements and a note on the amount of $500.00, with no interest, due in 6 months, as full payment of all improvements located on the parcels which have Easement Deeds in favor of Hidalgo County.
It is also understood that these improvements are to be removed from site at Mr. Fonseca's expense, said moving to be accomplished within approximately 2 weeks.
HIDALGO COUNTY RIGHT OF WAY DEPARTMENT
By: /s/ H. M. Pike _ H. M. Pike, Director
ACCEPTED:
/%/ Guadalupe Fonseca Guadalupe Fonseca /s/ Otilia C. Fonseca " Otilia Fonseca

The County contends that this receipt reflects that an agreement was in fact reached with appellants. The County contends that the appellants executed the easement deeds in favor of the County in return for the County’s payment of an additional sum of $131.00 over that amount set out by the commissioners ($29,114.00), together with the County’s agreement to sell back to the appellants all of the improvements on said property for the sum of $1,200.00 under this agreement. The County would allow appellants to pay $569.00 in cash, while allowing a credit of $131.00 which would be paid to Hidalgo County when appellants withdrew the additional sum of money ($29,114.00) from the court, together with the execution of one promissory note by appellants in the amount of $500.00. Three days after the entry of the final agreed judgment, appellants filed their motion to set aside the judgment.

The appellants contend that they signed and executed the easement deeds with the intent that such would have no effect on their pending lawsuit concerning the amount of damages, and were thus mistaken as to the effect of such. The County on the other hand contends that there was no mistake and that the easement deeds were signed and executed with the understanding that a final settlement had been reached, such being the purpose of the agreed judgment.

After hearing evidence on the above contentions, the trial court denied appellants’ motion to set aside the judgment. From that judgment, the appellants have perfected their appeal to this Court.

The appellants bring forward their appeal on two points of error. In appellants’ first point, they contend that the trial court should have set aside the judgment on the basis that a mistake caused appellants to sign settlement papers and appellants’ counsel to approve the final judgment. This point is overruled. The trial court found among its findings of fact the following:

“XVIII.
Defendants, Guadalupe Fonseca and wife, Otilia Fonseca, and their nephew, Santos Fonseca, fully understood that they were talking to Mr. Pike to arrange a final settlement of the case and that the only way they could re-purchase the improvements from Hidalgo County would be to settle the entire controversy.
XIX.
Mr. Pike also told the Defendants and their nephew that if Defendants would sign the said Easement Deeds, the County would pay them an additional $131.00 and sell the improvements to the Defendants for the sum of $1,200.00, by allowing Defendants to pay $569.00 cash at that time, allowing a credit of $131.00, which would be paid to Hidalgo County when Defendants withdrew the additional sum of money from the Registry of the Court, and the execution of one promissory note by Defendants in the principal amount of $500.00, with no interest, payable to Hi-dalgo County in 6 months, provided also that they would move the improvements from the property at their expense within two weeks.
XXI.
The Defendants and their nephew fully understood the terms of the settlement and voluntarily signed the said Easement Deeds, knowing that they were settling their case and all claims against Hidalgo County in doing so.”

The first question we must determine is whether appellants are complaining of a mutual or unilateral mistake. The appellants contend that in the case at bar, the “mistake” is the settlement of the case which appellants wanted submitted to a jury. Here, the mistake could only be considered a “unilateral mistake”. The County states that there was no mistake on its part with respect to the execution of the easement deeds and the entry of the final judgment and appellants do not so contend to the contrary. The County contends that the effect of such easement deeds, together with the entry of the final judgment constituted the final agreed settlement of the case. We must agree.

The appellants cite as their authority James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 (Tex.Sup.1960). We agree that this case stands for the proposition that equitable relief will be granted against a unilateral mistake when the conditions of remedial mistake are present. However, it is proper to note what these conditions are. Generally, the plaintiff must show that: 1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; 2) the mistake relates to a material feature of the contract; 3) the mistake must have been made regardless of the exercise of ordinary care; 4) the parties can be placed in status quo in the equity sense, i.e., recission must not result in prejudice to the other party except for the loss of his bargain. See also Colvin v. Baskett, 407 S.W.2d 19 (Tex.Civ.App., Amarillo 1966, no writ). The burden here is on appellants to prove that the above conditions existed. It should be noted at the outset that there is no allegation of fraud.

The first condition which must exist is that the mistake is of so great a consequence that to enforce the contract, or as in this case the judgment, would be unconscionable. We do not believe appellants have satisfactorily shown that this condition exists. There was no evidence introduced showing that the sum of $29,245.00 was an unreasonable amount or that the easement and settlement agreement could be considered unconscionable. In fact, according to Mr. Pike, the appellants were given the option of retaining the house, water pump and shed by paying the County $1,200.00, a sum much less than their actual value. After the settlement, the appellants removed the building from the land apparently accepting the settlement agreement in part. It also appears that the $29,245.00 settlement figure was more than the award of the special commissioners. We cannot say that the mistake was of so great a consequence that to enforce the agreement and judgment would be unconscionable.

Another element which appellants had the burden of proving was that the mistake was made regardless of the exercise of ordinary care. Appellants’ burden here was to show that even by the exercise of ordinary care, the mistake would have occurred. Appellant Otilia Fonseca testified that she thought the papers (easement deeds), they were signing were for the buying of these improvements, “just buying' their house”. However, when asked whether she had read what she signed, she stated she just glanced at them and did not read what she had signed. Guadalupe Fonseca, in response to the same question, whether he tried to read those papers before signing them, testified that he did not. Had the appellants used ordinary care, that being to read the easement deeds prior to their signing them, the mistake might have been avoided.

The third and probably the most important condition that must be present for the granting of equitable relief against a unilateral mistake is that the parties must prove that they can be placed back in status quo (in the equity sense), causing no prejudice to the other party except for the loss of bargain. The county upon receiving the easement deeds which covered the appellants’ property also received all of the improvements that were situated thereon. These improvements were to be sold later by the County by public auction and removed from the property. The settlement agreement permitted the appellants to repurchase the house and all the other improvements for $1,200.00. After the settlement agreement had been signed, the appellants paid the County part of the re-purchase price ($569.00) in cash, and received a credit of $131.00. Thereafter, the appellants removed the house and other improvements from the land. However, after the suit was filed, they refused to tender or offer to tender back the property to the County or to offer to do any act which would restore the parties to the status existing prior to the settlement. Because the improvements have been removed from the land, it would be difficult (even if the appellants had offered) to restore the improvements to their same place and condition prior to the sale.

The appellants further contend that a court of equity will not permit a person to take advantage of another’s ignorance or mistake, even of the law, if that person knew of the misapprehension at the time of the transaction and did not correct it. Citing 22 Tex.Jur.2d Equity, § 18 (1961). The trial court found against the appellants on this fact question. There was no evidence that the County knew of appellants’ misapprehension at the time of the transaction. This is particularly true in view of the fact that had the appellants read the settlement papers prior to signing them, any questions that they may have had would have been cleared up. Appellants’ first point of error is overruled.

The case must be affirmed for still another reason. All of the settlement papers, including the easement deeds (after they had been signed by the appellants) were forwarded to the appellants’ attorney for his examination and approval. The attorney approved and signed the papers and returned them to the trial court for entry of judgment. No one contends that any fraud was involved in procuring the settlement or in obtaining the signatures of the parties or their attorney. It is the law in Texas that in absence of fraud, a party is as fully concluded by the acts of his attorney as if he were acting for himself. A court will not set aside a judgment because of the negligence or mistakes of his attorney. Citing Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App., Corpus Christi 1965, writ ref’d n.r.e.), reh. denied 385 U.S. 964, 87 S.Ct. 389, 17 L.Ed.2d 309; 34 Tex.Jur.2d § 213; 25 Tex.Jur.2d § 2-6; and cases cited therein. In re Y, 516 S.W.2d 199 (Tex.Civ.App., Corpus Christi 1974, writ ref’d n.r.e.). See also Metis v. Waits, 286 S.W. 923 (Tex.Civ.App., Austin 1926, no writ); Maeding v. Maeding, 155 S.W.2d 991 (Tex.Civ.App., Galveston 1941, no writ). It is obvious that had there been any misapprehension on the part of the appellants or any misunderstanding as to the terms of the settlement, such could have been concluded by an inquiry of the appellants’ attorney or by the appellants’ attorney contacting his clients.

Appellants in their other point of error argue that the trial court erred in attempting to recant its findings of fact and conclusions of law. On October 10, 1974, the appellants requested findings of fact and conclusions of law. Subsequently, the County filed with the trial court proposed findings of fact and conclusions of law. On the last page of such instrument, there appears the trial court’s notation: “adopted by Court November 4,1974”. . It was signed by the trial judge. The appellants then on November 6, 1974, gave notice to the trial judge of his failure to make findings of fact and conclusions of law. For some unexplained reason, the trial court then signed additional findings of fact and conclusions of law prepared by and favoring the appellants. The conflict was later discovered and cleared up by the trial court’s order dated November 21,1974, designated “Findings of Fact and Conclusions of Law” in which the court stated:

“It is the opinion and finding of the Court that the submitted Findings of Fact and Conclusions of Law filed by the Condemnor (County) are adopted by the Court and were adopted by the Court by a notation on such submission on the 4th day of November, 1974.”

The appellants contend that the attempt by the court to switch to its original findings of fact and conclusions of law comes too late since they were not done within the time specified by Rule 297 Texas Rules of Civil Procedure. This rule requires such findings and conclusions to be filed thirty (30) days before time for filing the transcript. That time would have been December 1, 1974. It is really unnecessary to pass upon the question of timely filing because even if the findings of fact and conclusions of law were not timely filed, they were filed in ample time for the appeal to be perfected, and the record to be timely filed in this Court. We have the completed record before us. The failure of a trial court to file its findings of fact in accordance with the rule will not call for a reversal if the record reaches the appellate court in time and it shows that the complaining party has suffered no injury because of its late filing. See Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App., Houston 1965, writ ref’d n.r.e.); Joe R. Starks Construction Co., Inc. v. G. A. Mallick, Inc., 425 S.W.2d 409 (Tex.Civ.App., Fort Worth 1968, no writ); Tippit v. Tippit, 360 S.W.2d 177 (Tex.Civ.App., Beaumont 1962, no writ); Brown v. Brown, 500 S.W.2d 210 (Tex.Civ.App., Texarkana 1973, no writ); 4 McDonald, Texas Civil Practice § 16.08.03(c) (1971). The appellants have not demonstrated probable harm because of the late filing of the findings of fact and conclusions of law. There is no reversible error. Rule 434, T.R.C.P.; Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945); Cantu v. Cantu, 253 S.W.2d 957 (Tex.Civ.App., San Antonio 1952, no writ).

The appellants next complain that certain findings of fact are mere conclusions of law and are directly contradicted by testimony of witnesses and are, therefore, inappropriate, unacceptable and form no basis for a final judgment. Rule 296, T.R.C.P., provides that conclusions of law and findings of fact be stated separately. However, this is directory only. The appellate courts will construe the finding and conclusion together and if possible to be in harmony with the judgment so as to support it. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.Sup.1963). Assignment of the wrong reasons by the trial court of its conclusions, transformation of the real character of finding, and conclusions, or finding and conclusion that might be mixed, is not reversible error. Whatever their nature makes them, they still are that in substance and in effect. See Shirey v. Albright, 404 S.W.2d 152 (Tex.Civ.App., Corpus Christi 1966, writ ref’d n.r.e.). This being a non-jury case, the trial court was the judge of the credibility of the witnesses and the weight to be given their testimony. The findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of the jury. Arnold v. Caprielian, 437 S.W.2d 620 (Tex.Civ.App., Tyler 1969, writ ref’d n.r.e.); 4 Tex.Jur.2d Appeal and Error — Civil, § 839 (1959).

We have carefully reviewed the entire record, including the findings of fact. There is evidence of probative force to support the findings and the judgment. As such, the findings are controlling on the reviewing court and will not be disturbed even though-the evidence is conflicting and the appellate court might have reached a different conclusion. Robinson v. Faulkner, 422 S.W.2d 209 (Tex.Civ.App., Dallas 1967, writ ref’d n.r.e.); 4 Tex.Jur.2d, Appeal and Error — Civil, § 839 (1959). Appellants’ second point of error is overruled.

The judgment of the trial court is affirmed.