author: PHILLIPS, Chief Justice.

text:
    Bryan W. FORISTER, Jr., et al., Appellants, v. W. R. COLEMAN, et al., Appellees.
    No. 12418.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Elvis G. Schulze, Law Offices of Gilbert Prud’homme, Austin, for appellants.
    J. Terry Weeks, Levbarg & Weeks, Austin, for appellees.
   PHILLIPS, Chief Justice.

This is the third time that this case has been appealed to this Court. Our opinion in the first appeal is reported in Forister v. Coleman, 418 S.W.2d 550 (Tex.Civ.App.1967). There, we reversed the judgment of the trial court and remanded the case for a new trial. The Supreme Court first refused application for writ of error, then on motion for rehearing issued a per curiam opinion refusing the application for writ with notation of no reversible error. 431 S.W.2d 2 (Tex.1968). The case was retried and again appealed to this Court. We reformed the judgment and affirmed the judgment as reformed. 497 S.W.2d 530 (Tex.Civ.App. 1973). On application, the Supreme Court granted the application for writ of error, and reversed the judgment of this Court and remanded the case to the trial court. That opinion is reported in 514 S.W.2d 899 (Tex.1974). On reversing the judgments of the courts below, the Supreme Court remanded the case solely for the purpose of determining “reasonable access under the 1955 deed.”

The question of “reasonable access under the 1955 deed” relates to the contention of appellant landowners to establish an unrestricted right to use certain lots for ingress and egress to the Bee Creek waterfront. Inasmuch as the facts are fully related in the opinions of this Court and of the Supreme Court cited above, we will not restate them.

Pursuant to remand of the case to the trial court, the cause was tried to a jury. The court attempted to limit the scope of the trial to the issue of “reasonable access under the 1955 deed” in conformity to the mandate of the Supreme Court.

The charge contained one special issue:

“Find from a preponderance of the evidence the (a) width, or widths, in number of feet, and (b) the geographical location, of the easement allowing passage across the land owned by the Defendants which is reasonably necessary to give to the owners of the one-foot strips reasonable access under the 1955 Deed to the walkway behind the one-foot strips of land bordering the water’s edge of Bee Creek. “In connection with the foregoing Special Issue, you are instructed that the grant of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient, and as little burdensome as possible to the owner in fee of the land.
“You are further instructed in connection with the foregoing Special Issue that the right of an easement granted in general terms granting the right to the grantees of the easement to pass through the lands owned in fee by another person does not include the right to linger for recreational purposes, or to exercise waterfront privileges.
“(a) Width, or widths, in number of feet.
“Answer: _
“(b) The geographical location of the easement.
“Answer: _

The answers of the jury to parts (a) and (b) of said Special Issue were as follows:

“(a) 30 foot easement increasing to 60 feet maximum at turn-around in Lot # 4 of Holloway-Coleman property.
“(b) The easement is measured 30 feet northwest from the boundary of Holloway-Coleman property and the A. S. Hull property extending northeast from Westlake Drive to the walkway behind the one-foot strips of land bordering the water’s edge of Bee Creek. Also included in the easement is the existing turnaround on Lot # 4 with a 30 foot radius the center of which lies 30 feet from the Holloway-Coleman and the A. S. Hull boundary.”

Pursuant to the jury’s answers to the issue, the trial court entered judgment that ■the deed granted an easement for a reasonable right of ingress and egress to the one-foot strips and the walkway referred to therein and no more, and the judgment further defined the boundaries of the easement in the terms of the jury’s answers to the special issue.

The court further found that the reference to Lot 4 above refers to Lot 4 of the Holloway-Coleman subdivision recorded in Book 25, page 9, of the Plat Records of Travis County, Texas; that the owners of the one-foot strips referred to in Emmett Shelton’s deed are entitled to (a) use the easement above defined for ingress and egress to the one-foot strips and (b) to use the walkway immediately adjacent to the one-foot tracts for purposes of access to them; and, that such owners have no other rights of user and none may be implied.

In our opinion, the trial court followed the mandate of the Supreme Court, and correctly applied the law to the facts as found. We affirm its judgment.

Although appellants are before us on a number of points of error, together, these points present the single contention that the trial court erred in confining the evidence presented at trial to that material to access to the property as it exists at the time of trial as distinguished from what might have been reasonable access over the property in 1955. There are no points complaining of the quantum of the evidence necessary to establish the easement.

By their points of error, which present slightly different shadings of the same contention, appellants complain of the trial court’s refusal to admit evidence extrinsic to the deed, relating to fraud, estoppel, reformation, mistake, constructive trust and other legal theories. Appellants say that such evidence would have reflected the intent and meaning of the 1955 deed.

We hold that the trial court was correct in excluding the evidence. The Supreme Court held that the 1955 deed was neither ambiguous nor incomplete. Therefore, “reasonable access” must be determined from the deed as written.

This Court is bound, as was the court below, by the law of the case as determined by the Supreme Court. The mandate of the Supreme Court was that the trial court determine “reasonable access under the 1955 deed.” The purpose of that grant in the deed was to make waterfront privileges available to the grantees. The special issue submitted asked the jury to determine reasonable access under the 1955 deed and the jury so found. The testimony was not confined to present day reasonable access and evidence was admitted concerning the use of the land in question over periods ranging from the 1930’s to the 1970’s. As stated above, the sufficiency of this evidence has not been attacked on this appeal.

The question of what was reasonable access under the 1955 deed was a fact issue to be determined by the jury. The trial court properly restricted the trial to that one issue, in light of the Supreme Court’s holdings that the deed was not ambiguous, that no additional rights passed by implication, and that the easement should burden the servient estate as little as possible.

We also hold that the trial court was correct in excluding any evidence of the number of persons with extraneous titles, i. e., titles to upland lots in the neighborhood as distinguished from those owners of the waterfront strips, or their assigns with respect to their rights as users of the easements. The Supreme Court held that the easements are appurtenant only to the land to which they pass, namely, the waterfront strips.

The trial court was correct in assessing costs against the appellants. The judgment is in all things affirmed.

Affirmed.

      . See: Stanolind Oil and Gas Co. v. State, 136 Tex. 5, 145 S.W.2d 569 (Tex.1940); MacDonald v. Follett, 193 S.W.2d 287 (Tex.Civ.App.1946, writ ref.).


source: Caselaw Access Project

license: Public Domain

text:
    Lenwood WALLACE, Appellant, v. INCOME PROPERTIES/EQUITY TRUST OF SANTA ANA, CALIFORNIA, Appellee. R. Marshall MILLER, Appellant, v. INCOME PROPERTIES/EQUITY TRUST OF SANTA ANA, CALIFORNIA, Appellee.
    Nos. 12443, 12447.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      J. L. Culpepper, Houston, for Lenwood Wallace.
    Paul C. Murphy, III, Murphy, Fenley & Lee, Houston, for R. Marshall Miller.
    Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellee.
   PHILLIPS, Chief Justice.

These two plea of privilege cases were docketed separately by this Court; one was heard in oral argument and the other submitted on briefs; however, as they involve identical questions and the appellee (the plaintiff below) is the same in both cases, we are consolidating them for the purpose of this opinion.

The appellee, Income Properties/Equity Trust of Santa Ana, California, brought suit in Williamson County on a promissory note against Sea Plaza, Inc., and against Lenwood Wallace, A. W. Charpiot, R. Marshall Miller, and E. N. Harper as guarantors under a contemporaneously executed guaranty agreement. Charpiot answered by general denial and appellants Wallace and Miller responded by pleas of privilege and general denials. Appellee filed controverting affidavits maintaining that venue was proper in Williamson County under Tex. Rev.Civ.Stat.Ann. art. 1995, subsection 4, as Charpiot was a resident of Williamson County and the remaining defendants were proper parties to the suit.

Trial was to the court and appellants’ pleas of privilege were overruled. We affirm this judgment.

Appellants assign error to the judgment of the trial court in that appellee failed to either plead or prove a cause of action against the resident defendant. Due to our disposition of this case, we do not reach appellant Miller’s point that he was denied an adequate opportunity to be present at the venue trial.

In order to establish venue against a nonresident under Article 1995, subsection 4, a plaintiff must plead and prove that (1) one defendant resides in the county of suit; (2) the plaintiff has a bona fide cause of action against the resident defendant; and (3) that the nonresident defendants are at least proper parties to the claim against the resident defendant. O. P. Leonard Trust v. Hare, 305 S.W.2d 833 (Tex.Civ.App.1957, writ dism’d), 1 McDonald, Texas Civil Practice § 4.10.2 (1965).

Appellants contend that appellee failed to plead ownership of the note, execution and delivery of the note, and that the balance due had not been paid.

In paragraph 11 of its petition appellee alleged:

“The Defendant, Sea Plaza, Inc., is the maker of that certain real estate lien note dated December 28, 1973, in the principal amount of $250,000 payable to Plaintiff, a copy of which is attached . . . The Defendants Miller, Harper, Wallace, Charpiot are personal guarantors of such note pursuant to that certain guaranty agreement executed contemporaneously with and attached . . . ” (Emphasis added)

In our judgment, the trial court correctly overruled appellants’ pleas of privilege because appellee sufficiently pleaded and proved a cause of action against the resident defendant Charpiot, and established the appellants as proper parties to that cause of action. Consequently, the court acquired jurisdiction over appellants, as nonresident defendants under Art. 1995, subsection 4.

It is undisputed that Charpiot was a resident of Williamson County. In addition to appellee’s pleadings, the original note and guaranty agreement were introduced into evidence, admissions and answers to interrogatories were filed, and testimony was taken before the court. No findings of fact or conclusions of law were requested or filed. Accordingly, all necessary fact findings in support of the order overruling the plea of privilege are implied and in determining whether there is any evidence to support the order, the record should be reviewed in the light most favorable to the order. Pittsburgh Plate Glass Co. v. Bragg, 383 S.W.2d 623 (Tex.Civ.App.1964, writ dism’d).

Appellee alleged that Sea Plaza, Inc., was the “maker” of the note. By definition, the maker is “one who makes or executes.” Black’s Law Dictionary, 4th Ed. (1968). Although, we have found no Texas cases on this point, other jurisdictions have held that pleading “maker” is a sufficient pleading of “execution.” Rawleigh v. Snider, 207 Ind. 686, 194 N.E. 356 (1935). Here the allegation that the contract was made is equivalent to an allegation that it was executed, and the word “executed” includes delivery. Also see Hazelet v. Holt County, 51 Neb. 716, 71 N.W. 717 (1897), holding that “made” is equivalent to “execute.”

Although appellee did not plead that it was the present owner of the note, ownership is sufficiently averred by a plaintiff who is payee of the note and who pleads that the defendant executed and delivered the note to it. Peters v. Lyles-Madry Implement Co., 41 S.W.2d 69 (Tex.Civ.App.1931, writ dism’d), 9 Tex.Jur.2d Bills and Notes § 343 (1969).

Even though appellee did not plead that appellants “executed and delivered” the note to it, delivery need not be pleaded when the plaintiff is payee of the note and has possession thereof. Aydelotte v. Anderson, 280 S.W.2d 945 (Tex.Civ.App.1955, no writ).

Under Rule 93, Texas Rules of Civil Procedure, denial of execution of an instrument in writing must be verified or the written instrument shall be received into evidence as fully proved. Neither Charpiot nor any of the other co-defendants filed such a sworn denial. In the absence of such denial, execution will be deemed admitted at the plea of privilege hearing, Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ. App.1971, no writ).

Even if execution were not deemed admitted, appellee has proved ownership by the introduction of the note and guaranty agreement into evidence, and by appellants’ admissions pertinent to its ownership.

We also overrule appellants’ contention that appellee failed to prove nonpayment of the note. Appellee proved nonpayment by introducing into evidence the original note, without any marks or indorse-ments. Such is prima facie proof of nonpayment. Naylor v. Gutteridge, 430 S.W.2d 726 (Tex.Civ.App.1968, writ ref. n. r. e.).

The judgment of the trial court is in all things affirmed.

Affirmed.

      . See: Dickson v. Dickson, 324 S.W.2d 442 (Tex.Civ.App.1959, no writ).

      . See: Associates Investment Co. v. Baker, 221 S.W.2d 363 (Tex.Civ.App.1949, writ dism’d).


text:
    Charles D. YARBOROUGH et al., Petitioners, v. INDUSTRIAL ACCIDENT BOARD, Respondent.
    No. 12453.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      Frank H. Pope, Jr., Law Offices of Yar-borough & Pope, Inc., Bedford, for petitioners.
    John L. Hill, Atty. Gen. of Texas, Anthony J. Sadberry, Asst. Atty. Gen., Austin, for respondent.
   PHILLIPS, Chief Justice.

Petitioners, Eddie B. Carter and the law offices of Yarborough & Pope, Inc., brought this action in the trial court seeking a writ of mandamus to compel Respondent, Industrial Accident Board, to hold a final hearing on a workman’s compensation claim.

Upon hearing, the court sustained certain special exceptions to a Petitioners’ petition and dismissed the case. We reverse this judgment and remand the case to the trial court.

Petitioners alleged that Eddie B. Carter received serious accidental injuries in a motor vehicle accident while in the course and scope of his employment for Bridgeport Drapery and Carpet Company, which company was insured at this time with a policy of workman’s compensation insurance issued by National Automobile & Casualty Insurance Company.

A guardianship was established on Carter’s behalf and his mother was appointed temporary guardian. As temporary guardian, she appointed Petitioner’s law firm as attorneys for Carter to pursue his claim.

At a prehearing conference held before the Fort Worth office of the Board, the parties hereto failed to reach a settlement as Carter’s attorneys demanded lifetime (open) medical benefits, which insurer refused to offer, even though the insurer did offer Carter total and permanent lump sum compensation benefits.

Four days later, the Industrial Accident Board, on its own motion, canceled a final hearing which had previously been set for September 26, 1975. Then on October 6, 1975, the Board entered a “nonappealable” order. Petitioners then brought this proceeding in mandamus.

In its order of October 6, the Board ordered the insurer to pay Carter’s guardian 26 weeks at $70 per week compensation benefits, with $59.50 (85%) per week to be paid to Carter’s guardian, and $10.50 (15%) per week to be paid to the law offices of Yarborough & Pope, Inc., as attorney’s fees. This order stated that it “is not a final award of the Board and no appeal shall be taken therefrom.”

Although Petitioners are before us on a number of points of error, their principal complaint, and the primary reason for bringing the mandamus action, is to force the Board to hold a final hearing in which this administrative proceeding can be finally determined.

At the trial of this case, the Board, represented by the Attorney General, levied a number of special exceptions to Petitioner’s petition, which exceptions were sustained and the case was dismissed.

The only question raised by special exception that we need notice, and the one that goes to the heart of this matter, is the Board’s assertion that under Tex.Rev.Civ. Stat.Ann. art. 8309a (Supp.1975), it has the discretion to issue the “nonappealable” order complained of above.

Article 8309a is as follows:

“Art. 8309a. Hearing of claim by Industrial Accident Board; postponement of hearing
“When an injured employee of a subscriber under the Workmen’s Compensation Act has sustained an injury in the course of employment and filed claim for compensation and given notice as required by law, the Industrial Accident Board shall hear his claim for compensation within a reasonable time.
“Provided, however, the Industrial Accident Board may, in its discretion, delay or postpone the hearing of such claim under the following circumstances and no appeal shall be taken from any such order of the Board:
“(a) When such injured employee is being paid compensation as provided in the Workmen’s Compensation Act, and the Insurance Association is furnishing either hospitalization, chiropractic service or medical treatment to such employee.
“(b) When the parties have failed to file all written medical reports that are available from a duly licensed physician or chiropractor covering the injury after being directed to do so in writing by the Board.”

Petitioners pleaded: “Since the date of the Board’s said order, the insurance carrier has failed, neglected or refused to make payment of the following medical expenses, which, to the best of Relator’s information and belief, are still outstanding and unpaid:

Arlington Neurosurgical Association_$ 40.00
Radiology Associates___$ 43.00
Bridgeport Hospital_$135.20

Under said order, the Claimant has no recourse against the insurance carrier for such non-payment.”

The general rule in Texas is that where the effect of the sustaining of special exceptions is to dismiss the suit as not stating a cause of action, the exceptions are the equivalent of a general demurrer, and the allegations of the petition must be taken as true by an appellate court reviewing the dismissal. Hazlitt v. Provident Life and Accident Insurance Company, 212 S.W.2d 1012 (Tex.Civ.App.1948), aff’d, 147 Tex. 426, 216 S.W.2d 805 (1949); Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App.1970, writ ref. n. r. e.); City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App.1968, writ ref. n. r. e.).

By the terms of Article 8309a, the Industrial Accident Board is vested with discretion to delay the final hearing of a claim provided that . . the Insurance Association is furnishing either hospitalization, chiropractic service or medical treatment to such employee.” Petitioners allege, and we must accept as true, that at least part of the medical expenses of the claimant have not been paid by the Insurance Association. As a result, upon the pleadings, the Board had no authority to postpone or delay the hearing.

We reverse the judgment of the trial court and remand the cause for proceedings consistent with this opinion.

Reversed and Remanded.


author: CADENA, Justice.

text:
    Ruben SALMON et al., Appellants, v. Jose S. HINOJOSA (Guardian of the person & Estate of Jose O. Hinojosa, a minor) et al., Appellees.
    No. 15501.
    Court of Civil Appeals of Texas, San Antonio.
    June 9, 1976.

      Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellants.
    Pope & Pope, Rio Grande City, for appel-lees.
   CADENA, Justice.

Defendants, Ruben Salmon and Noel Salmon, partners who are operators of a fertilizer plant known as Red Barn Chemical Company, appeal from a judgment, following a nonjury trial, against them and Tomas Vasquez in the sum of $1,128.20 for damages to buildings. Vasquez has not perfected an appeal.

The damage to the buildings resulted when a truck owned by the partnership and operated by Vasquez, an employee of the partnership, crashed into the buildings. The litigation originated as two separate suits. The first suit was filed by plaintiff, Jose S. Hinojosa, as guardian of the person and estate of Jose Octavio Hinojosa, while the second suit was filed by plaintiff, Raul Guerrero. The two suits were consolidated for trial and a single judgment, awarding both plaintiffs recovery, was rendered.

The sole question here concerns the legal and factual sufficiency of the evidence to support the implied finding that, at the time of the accident, Vasquez was acting in the course of his employment.

Vasquez had been working for Ruben and Noel Salmon since the Salmons purchased and began operating the business, which is located in Rio Grande City. He worked six days a week for a weekly salary of $42.00.

Ruben Salmon owned a ranch located about three miles from Rio Grande City. This ranch was not part of the partnership property and Noel Salmon owned no interest in it. At the time of the accident, Vasquez was living at the ranch. He paid no rent, and there is no evidence that he performed any duties at the ranch, although there is testimony to the effect that his son took care of the cattle.

Vasquez owned no car, and he was allowed to use the company’s truck for the purpose of going to and from work, keeping the truck overnight at the ranch. There is no evidence that while going from the ranch to the plant, or from the plant to the ranch, he was expected to perform any duties in connection with his employment at the plant. Nor is there any evidence that he did anything in connection with his employment at the plant while he was at the ranch.

On Monday, January 14, 1974, after completing his duties at the plant, Vasquez returned to his home at the ranch as usual, using his employer’s truck. At about 10:00 P.M. the night of the 14th he decided to cross the border into the Republic of Mexico for the purpose of getting some of his clothing, which he said was at the home of his family in Camargo, Mexico. He left Ca-margo at about 5:30 A.M. on Tuesday, January 15, 1974, to return to Rio Grande City. Since he had to report for work at 7:00 A.M., he did not return to his home at the ranch but proceeded directly to his place of employment. Shortly before 7:00 A.M., while operating the vehicle on Main Street in Rio Grande City, he lost control of the truck and crashed into the buildings owned by plaintiffs.

Vasquez had not been given permission to take the truck into Mexico for any purpose. On the return trip he made no stops involving the business of his employer. His employer had given him no instructions concerning the route he should follow in going to and from work, but at the time of the accident he was traveling over one of the two routes he normally followed on his journeys from the ranch to work.

It is undisputed that at the time of the accident Vasquez was employed by the Salmons and that he was operating a truck owned by his employer. These facts give rise to the presumption that, at the time of the accident, he was acting within the scope and course of his employment. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940). However, this presumption was rebutted by direct and positive evidence that at the time of the accident Vasquez was merely on his way to work and was not engaged in the furtherance of his employer’s interests. The presumption in question is not considered to be based on a preponderance of probabilities. Instead, it is based on the fact that one of the parties has peculiar knowledge of the facts or peculiar access to the relevant evidence, so that once the facts on which the presumption is based are established, it is not unfair to cast on such party the burden of producing the relevant evidence. Therefore, the facts on which the presumption is based, i. e., employment and operation of the employer’s vehicle, have no probative value, standing alone, on the question of whether or not the employee was acting within the scope of his employment. That is, such facts do not support an inference that the driver was acting within the scope of his employment. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 355-56 (Tex.1971). The burden was then on plaintiffs to introduce independent evidence showing that the employee was acting in the course of his employment, and in the absence of such independent evidence there is no basis for a verdict or judgment in their favor.

The evidence brings the case within the rule that an employee is not acting within the scope of his employment while going to and from work, even though he uses his employer’s vehicle as the means of transportation. The .facts in this case are not distinguishable from those involved in Thompson v. B. B. Saxon Co., 472 S.W.2d 325 (Tex.Civ.App. — San Antonio 1971, no writ), where we held that the evidence established as a matter of law that the servant was not acting within the course of his employment at the time of the accident.

The cases relied on by plaintiffs are not in point. Collin County Motor Co. v. Howard, 121 S.W.2d 460 (Tex.Civ.App. — Dallas 1938, writ dism’d). The problem was created by the fact that the employee, after beginning a journey admittedly in furtherance of his employer’s business, “deviated” from the performance of his duties in order to perform a mission “purely his own.” The only holding in Howard is to the effect that, after such deviation, the employee had returned to the performance of his duties and, at the time of the accident, was engaged in the furtherance of his employer’s business. Gulf Refining Co. v. Texarkana & Ft. S. Ry. Co., 261 S.W. 169 (Tex.Civ.App. —Texarkana 1924, writ dism’d), is another “deviation” case. The holding there was simply that the deviation was so “slight” that the employee was still engaged in the performance of his duties at the time of the accident. 261 S.W. at 170.

We do not understand plaintiffs’ reliance on the opinion of the Austin Court of Civil Appeals in Royal Indemnity Co. v. H.E. Abbott & Sons, Inc., 399 S.W.2d 343 (Tex.1966). The issue in that case was not whether the driver of the vehicle was acting within the scope of his employment, since the case did not involve the liability of a master for the negligence of his servant. The sole question was whether, at the time of the accident, the driver was operating the vehicle with the consent of its owner, so as to bring the case within the “omnibus clause” of a liability insurance policy issued to the owner which extended coverage to any person using the vehicle with the consent of the insured. Even if the holding of the Court of Civil Appeals, to the effect that the driver was operating the motor vehicle with the owner’s consent, can, in some manner, be interpreted as supporting plaintiffs’ contention in the case before us, we are precluded from adopting such interpretation by the fact that the judgment of the Court of Civil Appeals was reversed by our Supreme Court. Royal Indemnity Co. v. H. E. Abbott & Sons, Inc., supra.

Since there is no evidence in the record to support the implied finding that, at the time of the accident, Vasquez was acting within the course and scope of his employment, the judgment of the trial court is reversed and judgment is here rendered that, as against Ruben and Noel Salmon, plaintiffs take nothing.

      . Plaintiffs did not mention this fact in their brief.


author: PER CURIAM.

text:
    Lawrence MAYNARD, Appellant, v. COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General and Ed W. Hancock, Attorney General, Appellees. William B. PAXTON, Secretary, Department of Transportation, et al., Appellants, v. COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General and Ed W. Hancock, Attorney General, Appellees. William B. PAXTON, Secretary, Department of Transportation and Department of Transportation, Appellants, v. COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General and Ed W. Hancock, Attorney General, Appellees.
    Supreme Court of Kentucky.
    May 28, 1976.
    See also, Ky., 516 S.W.2d 865.
    Thomas L. Hogan, Frankfort, for Lawrence Maynard.
    Joseph J. Leary, Frankfort, for Ted Huddle.
    William L. Willis, Gen. Counsel, Asst. Atty. Gen., Dept, of Transp., Gary L. Dai-ley, Dept, of Transp., Frankfort, for William B. Paxton.
    Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellees.
   PER CURIAM.

These actions test the constitutionality of KRS 186.177 and KRS 186.178. KRS 186.-177 provides that amateur radio operators, upon the payment of an additional license fee of $10, may be issued a license plate upon which shall be inscribed, in lieu of the usual numbers, the amateur radio-call letters of the station assigned by the Federal Communications Commission, and the year for which the plate was issued. KRS 186.-178 provides that members of the Kentucky General Assembly, upon the payment of an additional license fee of $10, may be issued a license plate with an inscription containing, in lieu of the usual registration numbers, letters indicating whether the member was a senator or a representative, followed by the number of the member’s senatorial or legislative district, and in place of the county name, the word “Legislature,” and the licensing period for which the plate was issued.

At issue is whether the statutes violate section 3 of the Constitution of Kentucky, which provides in part:

“All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; * * (Emphasis added)

The court is of the opinion that the statutes do not, in fact, grant to amateur radio operators or members of the general assembly emoluments or privileges. Certainly there is no pecuniary gain bestowed on the licensee, nor is the state any the poorer. It is unimaginable that the license plate could enhance the economic prestige of the licensee. The licensee pays not only the usual registration fee but also $10 which presumably covers any additional expense to the state. The court is also of the opinion that the license plate is merely a badge of identity rather than evidence of a privilege in the constitutional sense. In one instance the plate identifies the owner as an amateur radio operator and in the other as a member of the general assembly. The plates are not tickets to special favors.

The court is immediately confronted with Reeves v. Gerard, Ky., 255 S.W.2d 21 (1953), which presents a holding with regard to amateur radio operators contrary to the present view of this court. On further reflection the court is of the opinion that the rule announced in Reeves is not consistent with a reasonable interpretation of section 3 of the State Constitution and the case is now expressly overruled.

The judgment is reversed with directions to enter a judgment upholding the validity of KRS 186.177 and KRS 186.178.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Duane L. VINCENT, Respondent.
    Supreme Court of Kentucky.
    May 28, 1976.

      Leslie G. Whitmer, Director, Ky. Bar Ass’n, John T. Damron, Asst. Director, Ky. Bar Ass’n, Frankfort, Frank Trusty, II, Covington, for complainant.
    Louis DeFalaise, Adams, Brooking, Step-ner & Mitchell, Covington, for respondent.
   PER CURIAM.

This is a disciplinary proceeding initiated on December 10,1973, by the Inquiry Tribunal of the Kentucky Bar Association against a member of the bar for allegedly unprofessional conduct as specified in three counts. After a hearing the Trial Committee of the Association recommended dismissal of Counts 1 and 2 and a private reprimand on Count 3. By a unanimous vote the Board of Governors of the Association found the respondent guilty on all counts, and by a vote of 10-1 it recommended that he be suspended from the practice of law for a period of 30 days.

The gist of the charges and pertinent evidence is as follows:

Count 1. In April of 1969 one Betty Jane Lawrence engaged the respondent to obtain a divorce for her. He filed her complaint and a reply to the husband’s counterclaim. In response to her inquiries as to the status of the matter he directed her to bring a residency witness and come to his office for the purpose of giving their depositions. When Mrs. Lawrence and her witness, Joyce Turner, came to his office he was not there, but his secretary proceeded to take the depositions in his absence. Opposing counsel was not present. Subsequently Mrs. Lawrence made repeated inquiries about the status of the case and was told by the respondent that everything had been filed and all that needed to be done was for the judge to read the record and sign the judgment. Actually, as Mrs. Lawrence finally ascertained from the court clerk, no depositions had been filed and no further steps had been taken after filing of the reply. Mrs. Lawrence discharged the respondent and employed another lawyer to complete the case. Respondent refunded $75 of the $100 deposit Mrs. Lawrence had given him.

The most serious aspect of this charge centers on the alleged deposition. The respondent testified that he took the deposition himself and denied categorically that it had been taken by his secretary. At some time after the commencement of this disciplinary proceeding the deposition was discovered in his files, and he introduced it with his testimony. He explained that his reason for not filing it in the divorce suit was that Mrs. Lawrence had decided to discontinue the action. The deposition shows that it was taken before and certified by Cynthia Carol Martin, a notary public, that the defendant had been served and had failed to answer or enter any other pleading (this being in error, of course), and that the plaintiff was present in person and by counsel, the respondent.

Respondent explained the misstatements made by the notary on the face of the deposition as probably having resulted from her inexperience. She was his secretary and had worked in a law office for only four or five months. He speculated that she may have copied the certification from some other similar document in his office. Her deposition finally was taken on April 22, 1976, but her testimony proved to be so vague that it had virtually no probative value one way or another.

The evidence supporting Count 1 is persuasive, but a finding that the respondent was not present when the Lawrence deposition was taken would be tantamount to finding that he has committed perjury in this proceeding. Considering the conflicting testimony on this point, we are disposed to give the respondent the benefit of the doubt, and on Count 1 find him guilty of no more than neglect in the conduct of his client’s business.

Count 2. In April of 1968 Mr. and Mrs. Otis Beams consulted with the respondent with a view toward bringing suit for damages occasioned by leaks in the basement of their home. On May 3, 1968, they paid him $100 by check. According to the Beams, he agreed to file the suit and later advised them that he had done so, first saying that it had been filed in the Boone Circuit Court, then that it had been filed in the Kenton Circuit Court, and finally that it had been filed in the federal court at Lexington. The Beams got in touch, successively, with the respective clerks of these three courts and learned that no such action was pending. Eventually they retained another attorney to bring the action. The respondent refunded their $100. His version of the matter was that upon investigation he determined that the prospective defendant was judgment-proof, that he so advised the Beams, and that he never told them a suit had been filed. On this count we are disposed to agree with the Board of Governors that the respondent is guilty, which means that he not only neglected the business of his clients but lied to them as well.

Count 3. In May of 1970 Creed K. Boat-right, Jr., of Alexandria, Virginia, employed the respondent to file a foreclosure suit against Sidney DeWitt Williams and wife, the purchasers of a home he and his former wife had conveyed or agreed to convey to them, and paid him $200 by check. On July 27, 1970, in reply to an inquiry from Boat-right, the respondent advised him by letter that “your cause of action against Mr. and Mrs. Williams is proceeding in our Boone Circuit Court and that said case will probably be tried in the Boone Circuit Court in December of 1970.” The next correspondence was a letter from Boatright on January 25,1971, asking for a. progress report, to which the respondent evidently did not reply. On March 8, 1971, Alphonse J. Audet, Jr., an attorney of Alexandria, Virginia, advised the respondent by letter that Boat-right had retained him to ascertain the status of Boatright vs. Williams and asked several questions, including when the case was set for trial, whether any payments were being made under the contract and, if so, whether the acceptance of such payments would constitute a waiver. In a reply dated April 5, 1971, the respondent advised Mr. Audet that the Williamses were not delinquent in any of their payments to the savings and loan association (which apparently was acting as collection agent), that there had been no waiver, and that Mr. Williams was negotiating for a loan to pay Boatright. In this letter the respondent further advised Mr. Audet as follows:

“A complaint has been filed in the Boone Circuit Court and an Answer has been filed by Mr. Williams, however, it is my opinion that if Mr. Williams does obtain the loan and pays Mr. Boatright, then the complaint would be dropped.”

Some 19 months later, in November of 1972, Mr. Audet obtained from the Boone Circuit Clerk a statement that she had checked her records and could not find an action styled Boatright v. Williams. Boat-right thereupon discharged the respondent and directed him to relinquish the file to another attorney.

To Count 3 the respondent had no defense except “human error”, in explanation of which he said that Boatright is an unusual name in the area, there being but one other, and that by coincidence he had a case involving the other Boatright, which he confused with the Creed Boatright matter. He did not, however, produce any evidence to show the nature or similarity of the other Boatright case. Frankly, we can well understand why even the Trial Committee, in its superabundant lenience, could not swallow that one. We do not believe and therefore cannot accept as a fact that on two separate occasions, once in the letter of July 27, 1970, and again in the letter of April 5, 1971, the respondent thought he was referring to another case. Again we cannot avoid the conclusion that he not only neglected his client’s business but deliberately lied to him as well.

The sum of our findings on the three counts against respondent is that he is guilty of unprofessional conduct calculated to bring the bench and bar into disrepute. Cf. RAP 3.130.

Citing the fact that Count 2 arose out of conduct occurring more than five years before the formal charges were filed in this proceeding, respondent invokes the statute of limitations, KRS 413.120(2). Though KRS 30.170(l)(a) and (b) direct this court to prescribe a code of ethics and to establish practice and procedure for disciplining, suspending and disbarring attorneys, the power of the court to do so does not depend upon the statute, but is inherently a judicial function, without which courts of justice could scarcely survive. If it were a matter of, legislative dispensation the General Assembly could not constitutionally delegate it to another branch of government. Const. § 28. Hence KRS 30.-170(l)(a) and (b) can have no more than a hortatory effect, this is not a proceeding on “a liability created by statute,” and KRS 413.120(2) does not apply. Nor do we think that there was such an unreasonable delay in bringing the matter to the point of formal charges that the equitable doctrine of laches should be applied.

In its report and recommendations filed pursuant to RAP 3.360 the Trial Committee expressed concern that some of the charges had been “agitated and solicited” by unnamed members of the Boone County bar, commenting as follows: “The legal profession is perhaps the only one in the world which disciplines itself by proceedings similar to this. Solicitation of complaints . from citizens by attorneys against a fellow attorney is a reflection upon the profession as a whole. The Trial Committee is of the opinion Complainant’s staff was aware of this situation and, to a certain extent, participated in it.”

Obviously, and of course, no complaint against anyone, lawyer or nonlawyer, should be fanned by winds of jealousy or other evil motive. But it occurs to us that the good name of the profession suffers not so much from the barratrous activities of its members against each other as it does from their well-known reluctance to incur the personal animosity that results from doing what they ought to do when the professional misconduct of fellow-lawyers is brought to their attention. The law is an honorable profession. Those who are called to it should be men and women of honor. Men and women of honor should be able to live comfortably under the honor system. Though our rules and canons do not impose that system, in the sense that one who knows must report or be in violation himself, certainly they partake sufficiently of its spirit that lawyers are morally bound, if they would police their own profession, to see to it that the plain misconduct of other lawyers is not tolerated.

Our conclusion is that the respondent should be and he is suspended from the practice of law in the courts of this Commonwealth for a period of 12 months. To the extent that this period overlaps a similar suspension heretofore imposed in a separate proceeding against the respondent they shall run concurrently.

All concur.


author: PALMORE, Justice.

text:
    Eva GRAVES, Administratrix of the Estate of Doctor Elijah Graves, Appellant, v. DAIRYLAND INSURANCE GROUP, Appellee.
    Supreme Court of Kentucky.
    May 28, 1976.

      Carl R. Clontz, Allen, Clontz & Cox, Mount Vernon, for appellant.
    Joe L. Travis, Smith & Blackburn, Somerset, for appellee.
   PALMORE, Justice.

Dr. Elijah Graves, a pedestrian, was struck and killed by a truck driven by Tommy Graves. Tommy Graves was the insured under an automobile liability insurance policy issued by Dairyland Insurance Group. The policy protected him against liability for injuries or death caused by accident arising out of the use of the truck. In a wrongful death action against Tommy Graves the estate of Dr. Graves recovered a judgment for $9999.99. Dairyland denied coverage by reason of the following condition of its policy:

“Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.”

In other words, Dairyland took the position that the fatal event was an assault and battery committed by Tommy Graves against Dr. Graves and therefore was not an accident within the terms of its policy. A suit brought by the estate of Dr. Graves against Dairyland to collect the amount of its judgment against Tommy Graves culminated in a jury verdict and judgment in favor of Dairyland. The estate of Dr. Graves appeals. The only question relates to the propriety of the instructions given to the jury.

The following instruction offered by the appellant was rejected:

“You will find for the plaintiff, Eva Graves, unless you believe from the evidence that upon the occasion in question, Tommy E. Graves committed an assault and battery upon the person of Doctor Elijah Graves by intentionally causing his truck to strike Doctor Elijah Graves, in which event you will find for the defendant, Dairyland Insurance Group.”

Instead, the trial court instructed the jury in this respect as follows:

“If you believe from the evidence that Tommie E. Graves did, while driving a pickup truck insured by the defendant, Dairy-land Insurance Group, commit assault and battery against the person of the deceased, Doctor Elijah Graves, then you will find for the defendant, Dairyland Insurance Group.
“But unless you believe that Tommie E. Graves committed assault and battery against the person of the deceased, Doctor Elijah Graves, you will find for the plaintiff, Eva Graves, Administratrix of the Estate of Doctor Elijah Graves.
‡ * sfc ⅜ ⅜ ⅜
“Assault and battery as used in these instructions is an unlawful touching of the person of another by the agressor himself, and the force or violence attempted or offered must be physical and no words of themselves can constitute an assault.”

It will be noted that nowhere did the instructions given by the trial court indicate that intent is an essential element of assault and battery. For that reason they were erroneous.

The last sentence of the instructions, defining assault and battery, is the second sentence of a two-sentence definition appearing in Sec. 84 of Stanley’s Instructions to Juries, taken from Hixson v. Slocum, 156 Ky. 487, 161 S.W. 522, 523, 51 L.R.A. (N.S.) 838 (1913). The first portion of this two-sentence definition is as follows (emphasis added):

“An assault is any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, under such circumstance as shows [sic] an intention to do it, coupled with the present ability to carry such intent into effect.”

In the Hixson opinion the two sentences were quoted from text material in 3 Cyc. 1020-1022. They were not prescribed for use as instructions and are not appropriate for that purpose. But even if they were, the second could not be used without the first, because it is only in the first that the reader is told that the circumstances must be such as to justify an inference of intent.

According to Prosser, there has been “some occasional confusion, and some talk of a negligent ‘assault and battery,’ but in general these terms are restricted to cases of intent.” Prosser on Torts (4th ed., 1971), § 7, p. 30, citing as an example the early Kentucky case of Anderson v. Arnold’s Ex’r, 79 Ky. 370 (1881). And as explained in Bentley v. Commonwealth, Ky., 354 S.W.2d 495, 496 (1962), a line of cases holding that the criminal offense of assault and battery can be committed by gross negligence grew out of an erroneous application of homicide precedents in Balee v. Commonwealth, 153 Ky. 558, 156 S.W. 147 (1913).

Probably the confusion mentioned by Prosser originates in the nature of the “intent” that is required for an assault or a battery, or both.

“The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant’s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it. The driver who whips up his horses with a loud yell while passing a neighbor’s team will not be credited when he denies that he intended to cause a runaway; and the defendant on a bicycle who rides down a man in full view on a sidewalk where there is ample room to pass may find the court unwilling to accept his statement that he did not mean to do it.”

“On the other hand, the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts on the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a substantial certainty.” Prosser, supra, § 8, p. 32.

The point is illustrated by Sigler v. Ralph, Ky., 417 S.W.2d 239 (1967), in which the trial court directed a verdict for the defendant on the ground that the plaintiff had failed to prove a hostile intent but this court reversed because the factual circumstances were such that the jury could reasonably have inferred intent. Contrary, however, to any suggestion that intent might not be a necessary constituent of assault and battery, our opinion in that case specifically says this: “So far as the proof is concerned, the cause of action depends upon an intentional laying on of hands and could not succeed on negligence; nevertheless, the use of a firearm under these circumstances was enough to justify a jury in inferring intent.”

Again, as in Hixson v. Slocum, 156 Ky. 487, 161 S.W. 522, 523, 51 L.R.A. (N.S.) 838 (1913), the definition of assault and battery quoted in Sigler was not intended and would not be appropriate for use in an instruction to the jury. For example, how is a jury to know what is meant by “unlawful”? The word “unlawful” or “unlawfully” should never be used in an instruction if there is any way to avoid it, and most assuredly it must never be used without a careful definition relating it to the factual situation presented by the evidence. It is difficult enough for courts and lawyers to understand fully what is “lawful” vis-a-vis “unlawful,” much less to entrust a definition to the individual notions of untrained laymen.

Since intent is an essential element of assault and battery, the degree of recklessness from which it may reasonably be inferred is an evidentiary question, and could not be incorporated in the instructions without violating the fundamental principle that the jury should not be instructed on the weight of the evidence. In this respect, therefore, it is not proper to lift the definition of assault and battery verbatim from a textbook and put it in an instruction. Whether the conduct of the defendant was such that he must have intended the consequences is, however, an appropriate subject of argument to the jury unless the answer is so clear that it may be decided by the trial court as a matter of law.

In the event of another trial the jury should be instructed substantially in accordance with the instruction offered by the appellant.

The judgment is reversed with directions for a new trial.

All concur.

      . The common-law crime has been superseded by the Kentucky Penal Code, cf. KRS Chapter 508, thus obviating further consideration of this line of decisions.


author: HOLMAN, Judge. BARDGETT, Judge

text:
    In re Hon. Paul E. CORNING, Jr., Respondent.
    No. 59450.
    Supreme Court of Missouri, En Banc.
    June 24, 1976.
    As Modified on Courts Own Motion July 12, 1976.

      David 0. Danis, Whalen, O’Connor & Danis, St. Louis, for Commission on Retirement.
    Albert A. Michenfelder, Jr., Dudley C. Dunlop, Clayton, for respondent.
   HOLMAN, Judge.

This case involves the question as to whether respondent should be removed from office as a St. Louis County Circuit Judge. Removal was unanimously recommended under S.Ct. Rule 12.08 by the Commission on Retirement, Removal and Discipline (hereinafter called Commission).

The Commission was authorized and created by a constitutional amendment which became effective January 1, 1972. Art. V, Sec. 27, Mo.Const. Since that date the Commission has made a number of recommendations to this court which have been disposed of by orders or brief per curiam opinions. This is the first case, however, in which it has been recommended that a circuit judge be removed from office.

In order to provide for the organization and procedure of the Commission this court adopted Rule 12. Rule 12.06 provides for the removal of a judge “because of permanent sickness or physical or mental infirmity.” Rule 12.08 authorizes the Commission, after an appropriate hearing, to recommend that a judge “be removed from office, suspended from the performance of his duties for a period of time or otherwise disciplined” upon a finding, inter alia, that the judge “is guilty of misconduct, willful neglect of duty, . . . incompetency.”

Paul E. Corning, Jr. was admitted to the bar in 1953. In 1966, he was the Republican nominee and was elected to a circuit judgeship, assuming office in January, 1967. As will hereinafter more fully appear he immediately adopted a practice of holding cases under submission for an unreasonable length of time. In 1970 St. Louis County adopted the nonpartisan plan for selection of circuit judges. See Art. V, Sec. 29(a), (b). In the general election in 1972, respondent was retained in office for another term. It is of some significance, however, that in a poll of St. Louis County lawyers a majority voted against his retention. Respondent testified that in another poll conducted by the Missouri Bar he was favored for retention.

On October 31, 1975, a notice was served on respondent by the Commission advising him that a hearing would be held beginning December 11, 1975, at which the Commission would investigate the following charges against him:

“I. Between January 1,1973, and July 1, 1975, you violated Supreme Court Rules 2.02, 2.07 and 2.08 in the following respects:

“(a) You failed to administer judicial matters before you in a speedy and careful manner (Rule 2.02); you failed to exhibit industry and application commensurate with the judicial duties imposed upon you (Rule 2.06); you failed to be prompt in the performance of your duties, recognizing that the time of litigants, jurors and attorneys is of value and you habitually lacked punctuality (Rule 2.07); and you failed to organize the Court with a view to the prompt and convenient dispatch of its business and you failed to cooperate with other Judges of the Circuit Court to promote more satisfactory administration of justice (Rule 2.08).

“(b) You failed on numerous occasions to rule on motions, trials and other matters before your Court with reasonable dispatch after said matters were submitted to you for ruling, thereby causing inconvenience. Rules 2.02, 2.06 and 2.07.

“II. Between July 1, 1975, and October 1, 1975, you violated Sup.Ct.Rule 2 as amended effective July 1, 1975, Canon 3, in the following respects:

“You failed to promptly dispose of the business of your Court and were dilatory in deciding motions, trials and other matters before your Court.

“HI. On or about July 5, 1975, Interrogatories were directed to you on behalf of the Commission on Retirement, Removal and Discipline, regarding listing of cases presently under submission by you and also cases partially heard by you and not finally adjudicated, said interrogatories returnable July 25, 1975; thereafter at your request the returnable date was extended to August 11, 1975; thereafter you failed to answer or object to said Interrogatories or to respond in any manner, and said failure constitutes a violation of Sup.Ct.Rule 12.13.

“IV. Between January 1, 1973, and October 1, 1975, you violated the provisions of Mo.Const. Art. V, Sec. 29F, and Sup.Ct. Rule 2.28, and Sup.Ct. Rule 2, Canon 7, by your association and affiliation with the Normandy Township Republican Club.” (Unless otherwise indicated citation to S.Ct. Rules are to those in effect prior to July 1, 1975).

It was appropriate for the Commission to undertake an investigation of the conduct of Judge Corning and where found to be appropriate to conduct a hearing. Rule 12.08(a) so contemplates. When the Commission has reason to believe that a judge, trial or appellate, has wilfully failed to perform his duties in a timely and proper manner it should conduct an investigation to determine whether such information is correct and whether for any reason some disciplinary action should be recommended to this court.

A hearing was held at the time stated and on February 25, 1976, the Commission made the following findings and conclusions:

“FINDINGS OF FACT

“I. Respondent delayed ruling on several matters before him and over the period of time from January 1,1973, through October 1, 1975, demonstrated a persistent pattern of delay which impaired the prompt determination of judicial matters, so as to impede a speedy determination of the rights of litigants before him which has created a backlog of cases pending before him, and the delays included the following:

“(a) In the case of State vs. Rogers, Cause 324174, the defendant was indicted by the Grand Jury on a charge of Murder in the First Degree, tried before a jury, which found defendant guilty of Manslaughter in March of 1972, and the jury assessed defendant’s punishment at two to ten years in the Missouri Department of Corrections. Respondent accepted the verdict, and assessed the defendant’s punishment at two years. Thereafter, post-trial motions were filed and heard. Sentencing was set for July 28,1972, at 10:00 A.M. The next entry in the Court file dated August 11, 1972, indicates the sentencing was continued to September 22, 1972, at 10:00 A.M. On August 24, 1972, the case was removed from the docket of September 22, and set for October 11, 1972. No further entries appear in the file. The defendant has never been sentenced or granted probation, and the file was still pending in St. Louis County Circuit Court on the date of the hearing three years and nine months after the verdict.

“(b) Between January 1, 1973, and October 1, 1975, Respondent failed to promptly rule upon the merits of cases submitted to him including the cases of Aach vs. Widmer, Cause No. 335174, which was submitted on February 15, 1974, and not ruled upon until October 14,1975; Palmertree vs. State, Cause No. 362846, submitted on December 19, 1974, and not ruled upon as of December 5,1975; Hoelzer vs. Beard, Cause No. 337658, submitted on September 25, 1974, and not ruled on until 10-17 — 75; Fleming vs. Fleming, Cause No. 345783 submitted on October 1, 1973, and not ruled upon until September 23,1974; In Re Mary Hanebrink, Cause No. 359696, submitted on 2-10-75 and not ruled upon as of December 5,1975; Woods vs. Western Life, Cause No. 335953, submitted on 5-1-75 and not ruled upon until November 10, 1975; Costello vs. Costello, Cause No. 355658, submitted on 9-11-74, and not ruled upon until 2-10-75; Cannon vs. Cannon, Cause No. 334966, wherein the case was heard and submitted on January 3,1973, and not ruled upon until June 14, 1973.

“(c) Between January 1, 1973, and October 1, 1975, Respondent failed to promptly rule on Motions to Dismiss and other motions submitted to him including the motions in the cases of: Zurheide vs. London, Cause No. 285415, (G20755), wherein objections to Request for Admissions were submitted on 2-21 — 75 and not ruled upon 12-8-75; Bilgere vs. Bippen, Cause No. 359467, wherein several motions were submitted on 3-14-75 and one of the motions was not ruled upon as of 12-11-75; Scoggin vs. Scoggin, Cause No. 350732, wherein a Motion to Dismiss was submitted on 4-23-75 and not ruled upon until 12-8-75; Harlin vs. Somogyi, Cause No. 365833, wherein a Motion to Quash was submitted on 5-23-75 and as of 12-3-75 no ruling had been entered; Mastin vs. Parkway, Cause No. 366407, wherein a Motion to Dismiss was submitted on 5-16-75 and not ruled upon as of 12-3-75; Green vs. Rose, Cause No. 356825, wherein a Motion to Dismiss was submitted on 5-19-75 and not ruled upon as of 12-3-75; Crescent vs. Linclay, Cause No. 362508, wherein a Motion to Dismiss was submitted on 7-1-75 and not ruled upon as of 12-3-75, and several other eases.

“(d) Between January 1, 1973, and October 1, 1975, Respondent failed to rule promptly on Motions for temporary alimony and child support in numerous cases, including the cases of: Smith vs. Smith, Cause No. 306295, submitted on 9-27-74 and not ruled upon until 7-31-75; Smith vs. Smith, Cause No. 314560, wherein the Motion was submitted on October 17, 1973, and not ruled upon until June 18, 1974; Dogeny vs. Dogeny, Cause No. 318051, wherein a Motion was submitted on 7-16-75 and not ruled upon as of 12-11-75; Georgeff vs. Georgeff, Cause No. 289065, wherein the Motion was submitted on 9-12-74 and not ruled upon until 2-18-75.

“II. Between January 1, 1973, and December 3, 1975, Respondent arrived at St. Louis County Circuit Court after the time designated by Respondent as the opening of court and the calling of the Docket, and as a result thereof, witnesses, parties, attorneys and jurors were delayed and in particular Respondent was late on: March 11, 1974, 3-21-74, 3-22-74, 3-29-74, 4-8-74 and 4-9-74, 4-10-74, April 24, 1974, 4-26-74, 4-29-74, 9-16-74, 10-10-74, 10-28-74, 10-29-74, April 22, 1975, and 12-3-75.

“Respondent was habitually late in arriving at the courthouse and at the opening of Court. Respondent concedes his habit of arriving late at Court but states that he arises early but has difficulty in arriving at Court on time. Respondent further states that he has difficulty in functioning until later in the day.

“III. The Commission on Retirement, Removal and Discipline in order to determine the number of cases and the status of the cases pending before the Respondent at the time of the investigation by the Commission served several Interrogatories upon Respondent to evaluate the status of his caseload and Docket on or about July 5, 1975. Thereafter, at the request of Respondent, Respondent was granted additional time until August 11,1975, within which to file Answers to the Interrogatories. Respondent has failed to ever file Answers to the Interrogatories and has never informed the Commission of the number of cases or the status of cases that were pending during the investigation of this matter, and, therefore, the Commission has been unable to fully and completely determine the number and status of all the cases handled by Judge Corning during the period in question and pending before Judge Corning at the time of his hearing.

“IV. That for a number of years while a Circuit Judge under the Non-Partisan Court Plan, Respondent was an active member of the Normandy Township Republican Club and paid dues as an active member. Respondent regularly attended monthly dinner meetings of the Normandy Township Republican Club and requested Magistrate Lloyd Kelly to swear in the new officers at the installation meeting of the Normandy Township Republican Club in March, 1975. Respondent resigned as a member of said Club on June 80, 1975.

“V. The Commission fails to find that Respondent did not cooperate with other Judges of the Circuit Court.

“VI. That the Respondent had knowledge of the dilatoriness of his docket, cases, and motions for a number of years. The Supreme Court of Missouri, en banc, issued an order to Respondent on November 13, 1970 wherein it pointed out that at that time Respondent has ‘a large number of cases and proceedings in connection therewith under submission undisposed of, some of which were submitted for decision as much as three years ago.’ The Supreme Court in its order of November 13, 1970, directed that no cases be assigned to Respondent until further order of the Supreme Court. Respondent was further directed to report weekly to the Supreme Court as to the cases disposed of by Respondent and to report to the Chief Justice of the Supreme Court when all cases under submission has been disposed of by Respondent.

“That this Commission through its Chairman wrote Respondent a letter dated February 23,1973 to arrange a conference relative to Respondent’s docket. That a conference between Respondent and the Commission’s Chairman was had shortly thereafter wherein a discussion was had relative to Respondent ‘being late for court and holding cases under submission too long.’

“That on May 10, 1973 the Commission again wrote Respondent wherein it pointed out that it had received information that Respondent was habitually late for court and was habitually dilatory in disposing of cases, motions and legal matters.

“These warnings to Respondent regarding his dilatoriness in ruling on legal matters and arriving at Court late went unheeded.

“Testimony was presented at the hearing on behalf of Respondent by several attorneys, that Respondent possesses good judicial temperament, and was a fair-minded and intelligent Judge on the Circuit Bench of St. Louis County.

“CONCLUSIONS OF LAW

“Based upon the foregoing Findings of Fact, the Commission makes the following Conclusions of Law:

“Respondent violated Supreme Court Rule 2.02 by failing to administer the matters before his Court in a speedy manner and by failing to conduct the business of his Court so as to make it useful to litigants and to the community.

“Respondent violated Supreme Court Rule 2.06 by failing to exhibit an industry and application commensurate with the duties imposed upon him.

“Respondent violated Supreme Court Rule 2.07 by failing to be prompt in the performance of his judicial duties and failing to recognize that the time of litigants, jurors and attorneys is of value and that habitual lack of punctuality on his part justifies dissatisfaction with the administration of the business of the Court.

“Respondent violated Supreme Court Rule 2.08 by failing to organize his Court with a view to the prompt and convenient dispatch of his business.

“Respondent violated Supreme Court Rule 2, Canon 3, effective July 1, 1975, by failing to dispose promptly of the business of his Court and failing to diligently discharge his responsibilities.

“Respondent violated Supreme Court Rule 12.13 by failing to respond to the Interrogatories directed to Respondent by the Commission on July 5, 1975.

“Respondent violated Supreme Court Rule 2.28 by being an active promoter of the interests of one political party as against another, making payment of contributions to party funds, and through his association and activities with the Normandy Township Republican Club, Respondent engaged generally in partisan activities.

“Respondent violated the provisions of Article V, Section 29F of the Missouri Constitution by making annual dues, contributions to a political party or organization, to-wit, the Normandy Township Republican Club.”

We have carefully read the transcript (consisting of 490 pages) and have concluded that the evidence supports the findings of the Commission. Respondent in his brief makes no objection to Findings I and 1(a). Only minor exceptions are taken to most of the other findings of fact. Respondent’s counsel do not contest or deny the allegations that respondent was habitually late in arriving at his courtroom in the morning and was habitually dilatory in disposing of cases, motions, etc., that were taken under advisement. As hereinafter more fully discussed they seek to justify such conduct because it is said to have resulted from a mental condition and hence was involuntary.

In view of the position taken by respondent we will not discuss the evidence in detail. There are some items, however, which should be mentioned. As a result of complaints that had been received this court, on November 13,1970, made an order directing that respondent not be assigned any new cases for hearing until he had decided all matters under submission. At that time he had 23 cases under submission, one of which had been submitted in June, 1967, just five months after respondent had assumed office. He had decided all but one of the cases when we permitted him to resume taking assignments on February 1, 1971.

Apparently respondent did not change his manner of conducting court business as the chairman of the Commission conferred with him in February, 1973 and wrote him in May of 1973 in regard to the complaints. On July 5,1975, interrogatories were directed to respondent by the Commission seeking information as to the cases under submission and the dates submitted as well as a list of the cases adjudicated between May 25 and July 5, 1975. Respondent was granted additional time until August 11, in which to answer but never submitted any response whatsoever. In his testimony respondent said his records were not in very good shape and he got busy and just never got around to preparing the answers. There is no validity to that excuse. Most circuit judges could have prepared the information in no more than one hour. We can understand that it might have taken respondent longer since there was testimony that the desk, table and some chairs in his office were covered with files, correspondence and other papers to a depth of from 6 to 18 inches. However, we think he should have been able to assemble the information in one day. It is our view that respondent failed to answer those interrogatories either because he knew the facts would be very unfavorable to him or else he just didn’t want to bother with assembling it or both. In any event his failure to respond was inexcusable and constitutes a strong factor in supporting the recommendation of the Commission.

There was also testimony that because of complaints he had received, the court administrator for the circuit suggested to respondent that he not try any cases during the summer of 1975 until he had decided everything under submission. Respondent did not follow that suggestion.

It is obvious that respondent had strong warnings between November, 1970, and the date this proceeding was commenced that his record was unsatisfactory and under scrutiny but there was no permanent change in his manner of conducting the business of the court.

Respondent testified that he would get up of a morning at 5:30 but that he moved slowly and didn’t function very well of a morning; that although it was only a 20 minute drive to the courthouse he had difficulty getting there before 9:30 or perhaps a little later; that he worked several nights a week until 9 or 10 o’clock but that it took considerable time for him to decide matters because he wanted to be sure he had fully considered all the facts and law.

At the conclusion of the hearing it was suggested by respondent's attorneys that an explanation of respondent’s deficiencies might be found by a physical and mental examination to which they said he had agreed to submit. In response the Commission agreed to withhold a decision until the examination was made. It was also agreed at that time that, as a result of the examination, respondent had the option of requesting the Commission to consider disability retirement under Rule 12.06 if such appeared desirable and appropriate.

The examinations were made and on February 17, 1976, a report of Dr. Murray E. Finn, a psychiatrist, was submitted to the Commission, which, after reciting the respondent’s history, concluded as follows:

“DIAGNOSIS: The diagnosis is Obsessive Compulsive Neurosis.

“COMMENT: This patient has an obsessive reaction which accounts for his difficulty in reaching decisions and other conflict in his position as a judge. All physical findings were within normal limits. This patient has a rather marked obsessive compulsive personality disorder which is causing serious interference with his work.”

At the request of respondent’s attorneys the report was made a part of the record. It undoubtedly was considered by the Commission although it was not referred to in its findings of fact. Respondent did not request that the Commission consider his retirement under Rule 12.06. Instead, his attorneys requested that respondent be permitted to continue his work for 90 days while undergoing treatment by Dr. Finn in an effort to determine whether he could be cured or improved by such treatment. The delay was not granted.

In this court counsel for respondent contend that it would be inappropriate to remove respondent for cause because the matters complained of were involuntary due to his mental condition. It is suggested instead that we in some manner terminate this proceeding and permit respondent to resume his duties as a circuit judge under appropriate supervision; that he would continue treatment by Dr. Finn until it could be determined whether or not his condition could be cured.

We cannot grant that request. Respondent is precluded from acting as a judge while this matter is pending. Sec. 27(4), Art. 5, Mo.Const. And we have concluded that the evidence does not justify terminating this proceeding in a manner favorable to respondent. Even if we assume (but do not decide) that the fact respondent’s conduct might have been involuntary would be a defense, we do not think the facts would support same. We note that when strong measures were taken respondent could change his manner of conduct. For example, when the order of this court was made in 1970 he decided 22 cases in about 75 days. Also, when the Commission warned respondent in 1973 concerning complaints it had received he reported to the Commission on June 15, 1973, that during the preceding four weeks he had always arrived at the courthouse between 8:45 and 9:00 a. m. Unfortunately his conduct in that regard did not continue.

As indicated, we rule that the evidence does not support the request made and that it does support the recommendation of the Commission.

In the alternative respondent’s counsel request that, if we cannot grant the preceding request, that respondent be found to be suffering from a mental infirmity and be retired from office under Rule 12.06. We do not have jurisdiction to take that action. Under the Constitution and Rule 12.06 we can only retire a judge from office for disability upon a recommendation of the Commission supported by the affirmative vote of four members thereof.

At the time of oral argument there was some discussion, which resulted from a question by one of the judges, about the possibility of remanding this case to the Commission with directions that it consider respondent’s retirement under Rule 12.06. We do not think respondent is in a position to request that action. As heretofore indicated, the Commission gave respondent the option of requesting that action after his examination was completed and he did not do so. Instead, he permitted the matter to go to a decision, no doubt hoping that the decision would be something more favorable than removal. Now, after the Commission has recommended removal from office and other requests for relief have been rejected by this court, we rule that respondent is in no position to request that we remand the case for consideration of an entirely different type of proceeding.

Another ground for removal was the fact that respondent continued as a member of the Normandy Township Republican Club from the time St. Louis County adopted the nonpartisan court plan until June 30, 1975. He attended the regular monthly meetings; paid $2.00 annual dues and at one time obtained a magistrate to swear in the officers of the club. Respondent says that his membership in the club was continued under the good faith belief that such did not violate the Constitution or Supreme Court Rule and that the two dollar payment of membership dues was a de minimus matter.

Section 29(f), Mo.Const., provides that, “No judge of any court of record in this state, appointed to or retained in office in the manner prescribed in sections 29(a)-(g), shall directly or indirectly make any contribution to or hold any office in a political party or organization, or take part in any political campaign.” Rule 2.28 (in effect at the time in question) stated, in part, that a judge “should neither accept nor retain a place on any party committee nor act as party leader, nor engage generally in partisan activities.”

We have concluded that respondent’s membership in the partisan club violated both the Constitution and Rule. We have the view that it was the intention of the people in adopting the nonpartisan court plan to prohibit the judges selected thereunder from engaging in any partisan political activity. Although it was small, the annual two dollar payment to the club was a contribution to a political organization. And respondent’s membership and activities in the club violated our rule which prohibited engaging “in partisan activities.” We need not determine whether that conduct alone would have justified removal. It is sufficient in this case to hold that it constituted additional support for the recommendation of the Commission.

We have performed our function under Rule 12.08(b), have reviewed the record and have concluded that the recommendation of the Commission should be followed. It is accordingly ordered, adjudged and decreed by this court that respondent, Paul E. Corning Jr., be and is hereby removed from office as a judge of the twenty-first judicial circuit of Missouri.

SEILER, C. J., and MORGAN, HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result in separate opinion filed.

BARDGETT, Judge

(concurring in result).

I concur in result. However, I desire to state that I have substantial doubt as to the views expressed in the principal opinion concerning Art. V, sec. 29(f), Mo.Const., and whether or not it was violated in this case.


author: CLEMENS, Presiding Judge.

text:
    Joyce CZAPLA, Respondent, v. Richard L. CZAPLA, Appellant.
    No. 37697.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 8, 1975.

      John J. Stewart, Clayton, for appellant.
    Robert Ahrens, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-respondent was granted a divorce on June 14,1966. The court gave her custody of their children and child support of $15 per week per child. On May 13,1974 plaintiff filed a motion to modify the original divorce decree to increase the amount of child support.

The sheriff of St. Louis County served defendant with a copy of the motion to modify. No summons was attached to the motion and the sheriff made his return on the reverse side of a copy of the motion, stating defendant had been served with the motion on May 22, 1974.

On November 22, 1974 a memorandum was filed in the trial court setting the matter for hearing January 8, 1975. A copy of the memorandum was mailed to defendant at No. 6 Bridgeview Court, Imperial, Missouri. Defendant did not appear at the hearing and the trial court granted plaintiff the requested increase in support payments, an attorney’s fee and assessed court costs against defendant.

Defendant moved to vacate the modification order on the ground he had received no notice of the hearing of said motion. He testified his correct address (where he had lived for a number of years) was No. 6 Bridgeview Court, Arnold, Missouri, not Imperial, Missouri. The court denied defendant’s motion to vacate.

On appeal defendant contends the trial court erred in denying his motion to vacate because he was neither summoned to appear in court on respondent’s motion to modify nor given notice of the hearing date of the motion to modify. We agree and reverse.

Rule 44.01(d), VAMR, is disposi-tive of this case. A motion to modify a divorce decree “is treated as a petition in an original action.” Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323(8) (1952). Reasonable notice must be given to litigants. This notice may be achieved by service of summons. There are alternative methods of giving notice, and plaintiff’s memorandum would have sufficed had it been sent to the correct address. It was plaintiff’s oversight which prevented defendant from being notified of the impending hearing on her motion.

Defendant received only half of the requirements of Rule 44.01 — a copy of the written motion. Without notice that he must appear at a certain time, his failure to appear at the hearing could not be considered a default.

The judgment granting modification is reversed.

DOWD and STEWART, JJ., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Keith UMFLEET, Appellant.
    No. 9546.
    Missouri Court of Appeals, Springfield District.
    May 3, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Morris A. Shenker, Cordell Siegel, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   HOGAN, Judge.

A jury found Keith Umfleet guilty of two counts of possession of controlled substances in violation of § 195.020, RSMo Supp.1973. His punishment was assessed at 12 years’ imprisonment on count one (possession of morphine) and five years’ imprisonment on count two (possession of barbiturates). The sentences have been made to run concurrently. Defendant appeals.

The sufficiency of the evidence to support the verdicts is not questioned, and a brief recitation of the facts will be sufficient. On February 2, 1972, the Cape Girardeau Police Department received a “tip” from an unidentified informant advising them that the defendant, Ronald Wiley and Gary Moore had drugs stored in an apartment on North Ellis Street in Cape Girardeau. The informant further advised the police that the three men were eating, and when they finished they were going to Carbondale, Illinois, to dispose of the drugs. Having ascertained that the apartment described was occupied by Gary Moore and his wife and that the neighborhood fit the informant’s description, the police acted on the information. Lt. Stover and Officer Moore of the Cape Girardeau Police Department, together with three deputies of the sheriff’s office entered the apartment on North Ellis about 5:30 p. m. on February 2. Drugs were found in the refrigerator. Defendant, Wiley and Gary Moore and his wife were arrested and taken in custody. On March 10, 1972, the Prosecuting Attorney of Cape Girardeau County filed an information charging appellant and Wiley with a) “joint possession of a controlled substance, to-wit: three bottles of morphene sulphate [sic],” and b) “joint possession of a controlled substance, to-wit: 50 capsules of Fiorinal with Codeine # 1.”

At this trial, Moore testified that he, defendant and Wiley pooled their money to buy the drugs; that he first saw the drugs in a hotel in Indiana, and that defendant was present at the time. The defendant had called a person named Joe. Joe brought the drugs to the hotel. Moore paid Joe for the drugs (three bottles of liquid and a bottle of capsules) with money which belonged to defendant, Moore and Wiley. Moore further testified that defendant had come to the Ellis Street apartment to eat and to “[t]ry to get the drugs out” to Car-bondale. Moore freely admitted he was testifying as an immunity witness.

David Hill, a witness for the State, testified that he had seen the drugs at the “apartment on Ellis” “around” February 2. Defendant had told the witness the drugs were his, but “[defendant] had been busted before and he didn’t want to have them [the drugs] in his house.”

The defendant testified that he had gone to Moore’s apartment only to eat with Moore and his wife. He had gone to Indiana with Moore but he denied any knowledge of or connection with the drugs, stating that he had not seen them before he was arrested and taken in custody at Moore’s apartment. Other facts will be noticed as relevant to the issues presented.

The first point advanced here is that the trial court erred in permitting amendment of the information at the close of the State’s case-in-chief. With deference to counsel, the point is asserted in such “shotgun” fashion that we have difficulty determining what his precise complaint is, but the record shows that Robert C. Briner, a forensic chemist, undertook a qualitative analysis of the three bottles of liquid and the bottle of yellow and red capsules taken from the Moore apartment. Briner testified that the three bottles of liquid were sealed, but a small quantity of material was removed from each bottle with a hypodermic needle. This material was then put on a glass plate with wells in the plate, and a testing compound called marquis reagent was added. The material from the bottles was clear; when the marquis reagent was added the liquid turned purple. Such a reaction indicates the presence of a morphine ring. The solid material contained in the bottles was then extracted from solution and subjected to further analysis by gas and thin layer chromatography processes which were explained in some detail. The finding from this analysis was that “this material [from the three bottles] compared exactly with the standard morphine which we have in the laboratory from the Bureau of Narcotics.” Briner testified that the solute found in the State’s exhibits “B”, “C” and “D” “would come under Schedule II . which indicates opium or opiate, salt, compound, salt or derivative, I believe is the way it is stated.” Spectrographic and gas chromatographic analyses of the capsules revealed that they contained a mixture of codeine and isobu-tylallyl barbituric acid, which is a derivative of barbituric acid.

Cross-examination of this witness indicated no quantitative analysis of any of the specimens had been undertaken, and that the fluid taken from the bottles had not been analyzed to determine whether the solute was morphine as a sulfate or as another salt or derivative.

At the close of the State’s case-in-chief, the prosecuting attorney asked leave to amend both counts of the information. Count one of the original information charged that “Ronald Wiley and Keith Um-fleet . . . did then and there . have in their joint possession a controlled substance, to-wit: three bottles of mor-phene sulphate [sic]”. Count two charged that Wiley and Umfleet “did have in their joint possession a controlled substance, to-wit: 50 capsules of Fiorinal”. The State was permitted to amend count one of the information to read that defendant “did . . . have in his possession a controlled substance, to-wit: three bottles of a substance containing an opium compound, to-wit: morphine”. Count two was amended to read that defendant “did . have in his possession a controlled substance, to-wit: fifty capsules of a substance containing a quantity of a derivative of

barbituric acid”. The defendant now asserts that permitting the State to amend the information deprived defendant “of his rights to be informed of the nature and cause of the accusation, confrontation of witnesses and to effective assistance of counsel, under the Sixth Amendment as applicable to the states under the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, § 18(a) of the Missouri Constitution and contrary to Mo.Rev.Stat., § 545.300 and Mo. Sup.Ct. Rule 24.02.” Various arguments are advanced in support of this contention.

Rule 24.02 provides that the trial court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced, and the right to amend is not as limited as defendant seems to believe. If it can be clearly gathered from what is stated in the information that the prosecuting attorney intended to charge a particular offense or the violation of a specific statute, the information may be amended, as to both form and substance, even if the original information is insufficient to charge the defendant with a crime. State v. Morris, 470 S.W.2d 467, 469[2] (Mo.1971); State v. Starks, 419 S.W.2d 82, 84-85[2] [3] (Mo.1967).

In our opinion the amendment did not charge the defendant with an offense different from or additional to that with which he was originally charged. The offense charged in both informations is unlawful possession of a controlled substance. Section 195.020 makes it unlawful (with certain enumerated exceptions) for any person to “possess . . . any controlled substance”. Both the original and amended informations charge the offense of possession of a controlled substance substantially in the language of the statute. The amendment merely specified with more particularity the charge contained in the original information. There is no showing that any defense to the original charge would not have been equally available under the amended information, and the amendment was therefore proper. State v. Lockhart, 501 S.W.2d 163, 165[3] (Mo.1973).

Defendant also claims that he was prejudiced by the amendment because it came too late for him to cross-examine the forensic chemist “relative to and in light of the new charge.” The record does not support this complaint. Defendant’s trial counsel requested an opportunity to cross-examine Briner after the amendment and found that Briner had returned to Cape Girardeau. The State then closed its case-in-chief, and the trial court specifically afforded defendant the right to recall Briner. Defendant put on his evidence and made no attempt to recall Briner. No oral or written request for a continuance was made. In addition, defendant’s trial counsel, in objecting to the amendment, pointedly stated that “I anticipated — I expected an amendment for a long time ”. (Emphasis added.) There is no basis for the assertion that defendant was prejudiced by the amendments to the information; the point is without merit.

Defendant also asserts that evidence of other crimes was erroneously admitted, to his prejudice. He admits in his brief that his objection to “most” of the testimony or remarks to which he refers were sustained, and that the jury was instructed to disregard them, but he complains that the trial court should have declared a mistrial.

Without going over all the isolated answers, or “remarks”, to which this assignment of error is directed, one example is illustrative of the order of importance of this point. During direct examination, Hill was asked: “What did Keith Umfleet tell you about the drugs in Gary Moore’s ice box, and further did he tell you — tell us whether or not he told you they were in the ice box.” The answer was: “He had been busted before and he didn’t want to leave them in his house.” Trial counsel objected and asked that the jury be “instructed to disregard and the jury panel be dismissed. This man is testifying to opinions, hearsay and it is highly prejudicial and completely irrelevant to the charge against Mr. Um-fleet.” The trial court ruled that it would allow the witness to answer, “confining it entirely to what the defendant said, we will let him answer as to what the defendant alone said, not what someone else said.” The witness was then permitted to state that the conversation took place about “six-thirty, seven in the evening” on February 2.

It will be noted that defendant objected to the quoted unresponsive answer on the grounds of hearsay and relevancy; now he would expand his objection by asserting that Hill’s answer constituted proof of a crime different and distinct from that for which he was being tried. A point raised on appeal must be based on the same theory as the objection made at the trial; a defendant may not object on trial on the ground that evidence was improperly received because it was hearsay, opinion evidence and irrelevant, and then on appeal maintain that the same testimony was prejudicial because it constituted proof of other independent crimes. State v. Spencer, 486 S.W.2d 433, 434[1] (Mo.1972); State v. Johnson, 483 S.W.2d 65, 67-68[3-5] (Mo.1972); State v. Larkins, 518 S.W.2d 131, 134[1] (Mo.App.1974). Examples might be multiplied, but they are of like tenor and merit. We doubt that any of the evidence or “remarks” about which defendant complains tended to establish the commission of other unrelated crimes, but if so, the real question presented is whether, as a matter of law, the trial court abused its discretion in refusing a mistrial. State v. Smith, 431 S.W.2d 74, 82-83 (Mo.1968). Having examined the record, we find no such abuse of discretion.

A further diffuse assignment of error is that defendant’s sentence on count one is excessive and constitutes cruel and unusual punishment, that the jury should have been instructed on the “lesser included offense” of possession of a controlled substance listed in Schedule III rather than Schedule II, and that § 195.200 is unconstitutional in several enumerated respects because it provides for cruel and unusual punishment. The claim that defendant’s punishment is excessive and the assignment that the statute under which defendant was convicted is violative of U.S.Const. Amend. VIII and U.S.Const. Amend. XIV as well as Mo.Const. art. I, § 21, appears for the first time on appeal. We may not consider this assignment, because it was not presented below either upon trial or in the motion for new trial. State v. Brownridge, 459 S.W.2d 317, 319[4] (Mo.1970); State v. Turnbough, 388 S.W.2d 781, 787[9] (Mo.1965); State v. Harms, 507 S.W.2d 29, 31[1] (Mo.App.1974).

The assertion that the trial court should have instructed the jury on the “lesser included offense” of possession of a controlled substance listed in Schedule III, § 195.017, requires more discussion. Section 195.017, para. 6, subpara. (5)(h) includes, among other things, mixtures or preparations containing not more than 50 milligrams of morphine, or any of its salts, per 100 milliliters or per 100 grams with one or more active, nonnarcotie ingredients in recognized therapeutic amounts. Such a preparation or mixture is, or was, at the time defendant was tried, a Schedule III controlled substance. Section 195.240 prohibits possession of Schedule III controlled substances, with exceptions not here applicable, and § 195.-270 provides, in effect, that the penalty for possession of a Schedule III substance shall be imprisonment in the penitentiary for not less than two nor more than ten years, or by confinement in the county jail for a term of not more than one year, or by a fine of not more than one thousand dollars, or by both fine and confinement in the county jail.

A lesser offense is said to be “necessarily included” in a graver offense within the meaning of Rule 26.02, para. (6), and Rule 27.01, para, (c), if the greater of the two offenses includes all the legal and factual elements of the lesser, State v. Amsden, 299 S.W.2d 498, 503-504 (Mo.1957), and in the circumstances presented, we suppose a charge of unlawful possession of morphine in solution would necessarily include possession of a less concentrated solution. The question is whether the proof required instruction that the jury might find defendant guilty of unlawful possession of the Schedule III controlled substance described in para. 6, subpara. (5)(h) of § 195.017. Instructions on lesser or included offenses are required only if there is evidentiary support for them. State v. Goodman, 490 S.W.2d 86, 88[4] (Mo.1973); State v. Washington, 357 S.W.2d 92, 95[8] (Mo.1962).

The State’s evidence indicated that the three bottles of solution found in the Moore apartment contained morphine. At least as the law stood when defendant was prosecuted, the State was not required to prove the concentration of the morphine per unit of volume. State v. Young, 427 S.W.2d 510, 513[2 — 6] (Mo.1968). Cross-examination of the forensic chemist did establish that no quantitative analysis of the three bottles of morphine solution had been made, but neither the State’s evidence nor that of the defendant indicated that the three bottles of morphine sulfate contained “[n]ot more than 50 milligrams of morphine . per 100 milliliters . . . with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.” Since there is no proof in the record that defendant was guilty of the lesser or included offense of possession of a Schedule III controlled substance, the court was not required to instruct the jury that they might find the defendant guilty of that offense.

Defendant also asserts that his Fourth Amendment rights were infringed by the search and seizure made without a search warrant on February 2, 1972. He seems to assume that the merits of this appeal are necessarily governed by the decision of our Supreme Court in State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975). We do not know that this is true as a matter of law;, no part of the record in State v. Wiley, supra, was ever before this court, and ordinarily we cannot notice proceedings in another and different court, England v. Eckley, 330 S.W.2d 738, 744[4] (Mo. banc 1959), unless the record of those proceedings is put in evidence. Layton v. State, 500 S.W.2d 267, 269[5] (Mo.App.1973). Upon severance, this case became a separate case, see State v. Castino, 264 S.W.2d 372, 375 (Mo.1954), and therefore the decision in State v. Wiley, supra, governs this appeal only if Wiley’s appeal involved identical subject matter and questions of law, because defendant was not a party to that appeal. 5B C.J.S. Appeal & Error § 1833, at 210 (1958). We shall not pursue the matter, for the point is not briefed here, and by our rules, must be considered abandoned, Rule 28.02, even though counsel may not wish his brief to have that effect.

No prejudicial error appears. The judgment is therefore affirmed.

All concur, except BILLINGS, J., who took no part in the consideration or decision of this case

      . References to statutes and rules are to RSMo Supp.1973, V.A.M.S., except where otherwise noted.

      . We observe from our record that defendant was charged jointly with one Ronald Wiley. Wiley was tried in the Circuit Court of Cape Girardeau County. See State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975). Appellant was tried in Stoddard County, which is in our territorial jurisdiction. Section 477.060, RSMo 1969, reenacted Laws of Mo. 1973, p. 84, § 1. The opinion in State v. Wiley, supra, sets out the background facts more fully.