author: ROBERT LEE CAMPBELL, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert A. PARKS, Defendant-Appellant.
    No. 10645.
    Missouri Court of Appeals, Southern District.
    Jan. 17, 1979.

      Jerry L. Reynolds, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before FLANIGAN, P. J., TITUS, J., and KENNEDY, MOORE, CAMPBELL and PYLE, Special Judges.
   ROBERT LEE CAMPBELL, Special Judge.

Defendant was convicted by a jury for stealing a motor vehicle and sentenced by the court to a term of seven years in the custody of the Missouri Department of Corrections. Defendant appeals. We affirm.

Sometime between 1:00 A.M. and 11:30 A.M. on November 3, 1978, a motor vehicle disappeared from a church parking lot in Springfield, Missouri. On November 4 at about 4:00 A.M., defendant was apprehended while driving the stolen car in Yates Center, Kansas. Defendant gave a written statement to the police. Defendant contended that he obtained the car from a man he met in a bar in Springfield, Missouri. The man supposedly gave defendant $80.00 to drive the car to Minneapolis, Minnesota.

At trial defendant testified in his own defense to substantially the same story contained in the written statement to the police. Towards the end of cross-examination of defendant, the prosecutor picked up the statement and asked defense counsel, “Was that ever introduced? Was that marked? Was that introduced?” Defense counsel then offered the statement in evidence which was refused on the basis of the prosecutor’s objection that the statement was “self-serving, hearsay.”

On appeal, defendant contends the court erred in failing to permit him to read the written statement to the jury in its entirety to show the jury that defendant’s testimony at trial was consistent with his original story to the police at the time of his arrest. The court did permit defense counsel to read any portion upon which defendant had been impeached. State v. Nelson, 459 S.W.2d 327 (Mo.1970), cited by appellant, succinctly disposes of appellant’s contention at l.c. 332[6] by stating, the rule is well settled that a defendant in a criminal case may not adduce his own self-serving statements which are not a part of the res gestae.”

In numerous sub-points, appellant also contends that defendant’s statement should have been admissible in its entirety to cure the implication that the statement contained inconsistent statements created by the prosecutor asking in front of the jury if the statement was ever introduced, to corroborate defendant’s trial testimony after he had been impeached by suggestion and implication of recent fabrication and contrivance, to show the context in which defendant’s prior statéments were made, and because the court’s refusal to allow the statement to be read in its entirety implied to the jury that the statement contained inconsistent and adverse statements by defendant.

The rather innocuous statements made by the prosecutor in front of the jury were certainly not at all similar to the conduct condemned in Dunn v. Terminal Railroad Association of St. Louis, 285 S.W.2d 701 (Mo.1956), among the cases upon which appellant relies. As stated in State v. Beishir, 332 S.W.2d 898, 903[6] (Mo.1960), also cited by appellant, “The trial court has a broad discretion in determining the extent to which additional portions of a statement may be read into evidence to show the context of and circumstances under which the impeaching portion was made for the purpose of minimizing its impeaching force.” The trial court was in a better position to determine the prejudicial effect, if any, of the prosecutor’s questions. The trial court failed to find any prejudice to defendant. We likewise fail to see any prejudice to defendant. The trial court ruled correctly. We find no error in the court’s ruling. Accordingly, the judgment and sentence of the trial court is affirmed.

All of the judges concur.


source: Caselaw Access Project

author: BILLINGS, Judge.

license: Public Domain

text:
    Samuel M. CORNELIUS and Mary M. Cornelius, his wife, Plaintiffs-Appellants, v. Lee R. TUBBESING and Eileen Tubbesing, his wife, Defendants-Respondents.
    No. 11084.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 22, 1979.
    Ronald K. Carpenter, Phillips, McElyea, Walker & Carpenter, P. C., Camdenton, for plaintiffs-appellants.
    John R. Casteel, Foster, Casteel & Drover, Camdenton, for defendants-respondents.
   BILLINGS, Judge.

Appeal from purported judgment denying injunction and damages for trespass for the alleged encroachment of a patio onto plaintiffs’ land. The trial court made the following entry on June 9, 1978:

“DOCKET ENTRY OF 6-9-78 . . . ‘Def. present additional evidence. Final argument by the attorneys. Judgment for Defendant and against Plaintiff on Count I and Count II of Plaintiff’s Petition. Cost taxed to Plaintiff.’ ”

In Missouri, appellate review is created and governed by statute and § 512.020, V.A.M.S., requires that appellate review of such matters must be preceded by rendition and entry of a final judgment. The instant docket entry constitutes nothing more than a finding that one of the parties is entitled to judgment. Cochran v. DeShazo, 538 S.W.2d 598 (Mo.App.1976). Furthermore, the docket entry is not final as to all the parties to the action as it refers to the parties in the singular despite the fact that there were two plaintiffs and two defendants. Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974).

The appeal is dismissed.

HOGAN and MAUS, JJ., concur.


author: CRIST, Presiding Judge.

text:
    STATE of Missouri ex rel. Edward L. DOWD, Executor of the Estate of Henry E. Leicht, Deceased, Relator, v. Honorable William TURPIN, Judge of the Circuit Court of Pike County, Respondent.
    No. 40668.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 23, 1979.

      Dowd & Oates, Francis M. Oates, St. Louis, for relator.
    E. Rex Bradley, Louisiana, for respondent.
   CRIST, Presiding Judge.

Application for Writ, of Prohibition to prohibit Honorable William Turpin, Judge of the Circuit Court of Pike County, from proceeding further in a cause pending before him on the ground of improper venue.

In June, 1977, Ethel and Edward Miller filed a two-count petition in the Pike County Circuit Court against multiple defendants, all of whom are non-residents of Pike County, Missouri. The first count alleged that plaintiffs and defendants had made an agreement for lease, with plaintiffs as lessees, of farm property owned by defendants, for the term of April 1, 1977 to December 31, 1977.

This count was captioned “Petition for Possession and Specific Performance of an Agreement to Lease Real Estate”. It described the farm and the terms of the lease. It alleged that plaintiffs had made preparations to farm the land by contracting for seed and materials and by making arrangements for machinery. Further that defendants would not let them farm the land, and plaintiffs had no adequate remedy at law. The prayer of Count I was as follows:

“Plaintiffs demand a judgment that the said defendants be required to specifically perform said agreement and deliver possession of said real estate to the Plaintiffs.”

In Count II, plaintiffs made essentially the same allegations as to the lease, and prayed for actual and punitive damages. A motion to dismiss for improper venue was timely filed and denied.

The question for determination is whether or not plaintiffs’ petition is an action for possession of real estate within the meaning of § 508.030, RSMo. whereby venue would be in Pike County.

Section 508.030, RSMo. provides that:

“Suits for the possession of real estate . shall be brought in the county where such real estate, or some part thereof, is situated.”

Had plaintiffs filed a proper suit for possession of real estate, venue would have been in Pike County. However, the suit for specific performance of the lease does not state a cause of action, for the reason that their remedy at law is adequate.

First, plaintiffs had an adequate remedy of law in that they could have brought an action in ejectment. State ex rel. Janus v. Ferriss, 344 S.W.2d 656, 659 (Mo.App.1961).

Secondly, and more importantly, plaintiffs had an adequate remedy of law in that damages would have been a more adequate remedy. Equity will decree specific performance only when by that means it can do more perfect and complete justice. 71 Am.Jur.2d § 10, p. 23. In determining whether adequate damages may be recovered in an action at law so as to bar specific performance, the inquiry is whether the award of damages will put the injured party in a situation as beneficial to him as if the agreement were specifically enforced. Fleischer v. James Drug Stores, 1 N.J. 138, 62 A.2d 383 (1948).

In our case, the suit was filed in June, 1977. Plaintiffs filed their amended petition on March 31, 1978. Plaintiffs claimed only a right to farm the land for the crop year. Count I was dismissed by the court on May 15, 1978, for the reason that the allegations had become moot. By the time the issues were joined there could have been no reasonable expectation of farming the land in 1977. An award of damages would put the plaintiffs in a better position than if the lease were specifically enforced. Brassfield v. Allwood, 557 S.W.2d 674, 681 (Mo.App.1977).

For the reason that the plaintiffs improperly filed a “suit for the possession of real estate”, venue was not in Pike County, Missouri. Accordingly, our provisional rule in prohibition is made absolute.

CLEMENS, J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Orville Louis JACKSON, Appellant.
    No. 39134.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 23, 1979.
    Robert A. Hampe, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Appellant, Orville Louis Jackson, was found guilty by a jury of illegal possession of heroin, and he has appealed from the ensuing judgment.

The only point presented on this appeal is that the trial court erred in failing to sustain appellant’s motion for judgment of acquittal because, as appellant asserts, the evidence failed to show that he was “aware of the presence and character of the heroin and was intentionally and consciously in possession of it.”

On December 26, 1975 Detective Robert Schaeffer searched a building, the legality of which is not questioned, in which appellant had an apartment where he lived with a “girlfriend” by the name of Anna Pernell. After knocking on the apartment door, Detective Schaeffer and three other officers were admitted by Anna Pernell. When the officers entered the kitchen appellant was wearing a bathrobe and standing about two feet from the kitchen table on which were various items, most of which were related to the use of drugs, and eighteen capsules which contained heroin. Appellant was placed under arrest, and when questioned about the items on the table he stated he had no knowledge of them, and that he had been awakened from sleep by the knocking on the door. A further search of the apartment revealed sixty additional capsules containing heroin in a closet in the bathroom.

Both possession and knowledge are essential elements of the offense charged, but either may be proved by circumstantial evidence. State v. Burns, 457 S.W.2d 721, 724 (Mo.1970); State v. Davis, 515 S.W.2d 773 (Mo.App.1974). Actual physical possession is not necessary. In State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975) the Supreme Court said:

“In narcotics or controlled substance cases, the law has developed the policy that a person in exclusive control of the premises will be deemed to have possession and control of the substance found on the premises. * * * ‘Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters.’
“The same principle that a person may be deemed to have possession of the substance found on the premises may be applied even when the defendant does not have the exclusive control of the premises, since there may be joint control with the same consequences as if there were exclusive control. But, [State v. Funk, 490 S.W.2d 354 (Mo.App.1973)] states * * [that] if there is joint control then there must be some ‘further evidence or admission connecting the defendant with the illegal drugs.’ ”

The essential issue here is whether, within the rule as stated in State v. Funk, supra at page 361, there is “further evidence * * * connecting [appellant] with the illegal drugs.”

In State v. Zimpher, 552 S.W.2d 345, 349 (Mo.App.1977), the defendant and another were in joint control of premises where a controlled substance was found in a “chest of drawers” presumably used for the storage of their personal effects and also in a “ ‘bedside stand’ adjacent to the bed in which the defendant and [another who with defendant was in joint control] were sleeping.” The court held that “These facts constituted ‘further evidence’ (other than joint control of the premises) within the rule as stated in Funk, as approved and adopted in Wiley, * * * In commenting that actual possession is not necessary but that “constructive possession will suffice where * * * other facts buttress an inference of defendant’s knowledge of the presence of drugs,” the court further stated; “One such incriminating fact is a defendant’s access to an area in which drugs are found.”

In this case appellant was two feet from a kitchen table upon which in plain view there were several syringes, ten measuring spoons, several empty capsules, and eighteen capsules containing a brown powder later identified by chemical analysis to be heroin. Appellant had actual access to the area where the heroin was found, and most of the items on the table were readily recognizable as drug related.

The factual situation to which the rule, as stated in State v. Funk, supra, and State v. Wiley, supra, applies is best demonstrated by State v. McGee, 473 S.W.2d 686 (Mo. banc 1971). In that case there were six to eight persons in a room, including the defendant, sitting around a table on which there were such items as a brown leather pouch, an aluminum carton for film, a “pill bottle,” a wine bottle, five “coke” bottles, and books and papers. Marijuana was found in some of these items. It is not disclosed that the marijuana was visible to those in the room and readily identifiable as such. The defendant had joint control of the premises with at least two other persons, but there was no other evidence which would reasonably connect him with the illegal drugs.

The facts of this case are distinguishable from State v. McGee, supra, relied on by appellant, and are within the same category as those in State v. Zimpher, supra. They clearly constituted further evidence, other than only joint control of the premises, connecting appellant with the possession of the illegal heroin.

The judgment is affirmed.

DOWD, P. J., and CRIST, J., concur.


author: CLEMENS, Judge.

text:
    STATE of Missouri, Respondent, v. Danny JAMES, Appellant.
    No. 40030.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 23, 1979.
    Robert C. Babione, Public Defender, Thomas Motley and Nick Zotos, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant Danny James guilty of second degree burglary (§ 560.045, RSMo 1969), and he has appealed from the ensuing judgment imposing two years’ imprisonment.

Defendant’s only point is that the evidence was insufficient. Police saw and arrested defendant and two others as they were running out the door of the burglarized premises. A chain and lock were cut and the contents were in disarray. Among the missing items were five “Bic” pens and a pass key seized from the defendant’s person.

In support of his contention of insufficient evidence, in his brief defendant argues the evidence showed only his presence at the scene of the burglary. This ignores the state’s evidence that when arrested defendant had the stolen objects in his possession.

The evidence of the burglarious entry, defendant’s presence, his attempted flight, and his possession of stolen goods were sufficient to support his guilty verdict. Compare State v. Myers, 551 S.W.2d 312[1](Mo.App.1977).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: HENRY, Chief Justice.

text:
    Jim MOORE and Kentucky Rib-Eye, Inc., Appellants, v. Pamela Ann DREGER and Mary Pat Konvalinka, Appellees.
    Supreme Court of Tennessee.
    Feb. 12, 1979.
    Jack M. Rudolph, Douglas B. Parker, Clarksville, for appellants.
    W. Michael Morgan, Clarksville, for ap-pellees.
   OPINION

HENRY, Chief Justice.

Respondents Dreger and Konvalinka, two waitresses employed by petitioner Kentucky Rib-Eye, brought this action for slander per se, alleging injury to their occupational reputation. According to the complaint, respondent Moore, who managed the restaurant, stated in the presence of customers:

You all are no longer employed here because of giving bad service. I had to pay for three meals for you [Dreger] and three meals for you [Konvalinka] because of the bad service you all gave.

The trial court granted petitioners’ motion to dismiss for failure to state a claim under Tenn.R.Civ.P. 12.02(6). The Court of Appeals reversed and remanded for trial, ruling that a jury question had been raised. We granted certiorari to consider whether the statement is actionable under the circumstances. Upon consideration, we hold that it is not.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.


author: COOPER, Justice.

text:
    The BANK OF WAYNESBORO, Petitioner, v. Sharon Lynn GHOSH, Executrix of the Will of A. K. Ghosh, Respondent.
    Supreme Court of Tennessee.
    Feb. 12, 1979.

      Ray Hollis, Waynesboro, Knox Bigham, Lewisburg, for petitioner.
    George G. Gray, Waynesboro, for respondent.
   OPINION

COOPER, Justice.

This case arose from a claim filed by the petitioner, the Bank of Waynesboro, against the estate of Dr. A. K. Ghosh, based upon a guaranty of a debt of Donald Brewer executed by the late doctor. The County Court disallowed the claim, and was upheld by the Court of Appeals. We affirm.

The guaranty in question provides as follows:

KNOW ALL MEN BY THESE PRESENTS:
That in consideration of the Bank of Waynesboro at my request giving or extending credit to Donald Brewer in the amount of $9,828.90 and which is represented by a promissory note due said bank and signed by Donald Brewer and wife, Mary Laura Brewer, the undersigned hereby absolutely and unconditionally guarantees the prompt payment of the aforesaid note according to its terms plus all accruals of interest, etc., thereon, including reasonable attorney fees after default, etc. (emphasis supplied)
That the undersigned hereby waives presentment, protest, demand or action on any delinquency in respect of the aforesaid indebtedness or liability, including any right to require the bank to sue or otherwise enforce payment thereof against any person or persons.
This 3rd day of June, 1971.
/s/ A. K. Ghosh

On June 3, 1971, Donald Brewer and his wife executed a note due a year from date in the amount that Dr. Ghosh had guaranteed. On June 3, 1972, Brewer alone executed a second note, which was represented by a new note number in the Bank’s records. The Bank’s ledger sheet that was submitted as evidence shows that on June 20, 1972, a payment of $9,828.90, the face amount of the first note, was credited to that note. On July 13, 1973, over one month after the second note was due, Brewer executed a third note, which also was denominated by a new note number. This third note was for $9,780.74, due a year from date. As before, the ledger shows a credit to the second note in its face amount. Dr. Ghosh died in October of that year, and, a little over a month later, the Bank filed the instant claim. Subsequently, Brewer refinanced the debt yet a fourth time, with the note co-signed by his wife. It was on this fourth note that he ultimately defaulted. The balance due at the time of the trial of this action was $6,877.51. The trial judge found that the guaranty secured the payment of the first note only, and, furthermore, that the first note had been paid, and thus disallowed the claim. On appeal, the Court of Appeals affirmed, although on a different theory than that relied on by the trial judge.

The petitioner has raised a number of assignments of error before this Court. However, on our view of the case, the key question presented — which, insofar as it does not encompass those pressed by the petitioner, pretermits them — is whether Dr. Ghosh by this guaranty undertook to guarantee the payment of the June 3,1971, note alone, or whether by it he secured a line of credit to Brewer in the amount of $9,828.90. As the Court of Appeals made no specific finding of fact on this question, we must review the evidence de novo, with the presumption that the determination of the trial judge was correct unless the evidence preponderates against it, as we would in a case in which the findings of the trial court and the Court of Appeals had been in express disagreement. Cf. City of Columbia v. C. F. W. Construction Co., 557 S.W.2d 734 (Tenn.1977).

In addressing this question, we necessarily must look to the intention of the parties as expressed in the language of the guaranty, with regard to the circumstances attending its execution. See First National Bank, Hope, Arkansas, v. Foster, 60 Tenn.App. 711, 451 S.W.2d 434 (1970); 38 Am. Jur. Second Guaranty § 24. Cf. City of Columbia v. C. F. W. Construction Co., supra. We find, as did the trial judge, that the former interpretation — that Dr. Ghosh guaranteed payment of the note alone — is the proper one to be placed upon this transaction. This conclusion is compelled by the unambiguous expression in the guaranty of the obligation assumed by Dr. Ghosh: To guarantee “the prompt payment of the . note according to its terms. . . ” We can conceive of no reasonable interpretation that might be placed on that language other than that Dr. Ghosh intended to secure the payment of the note, and not a line of credit, nor have we found any credible evidence in the record of circumstances that would militate against our conclusion. Cf. Bennett v. First National Bank of Norfolk, 213 Va. 672, 194 S.E.2d 903 (1973); Exchange National Bank v. Hunt, 75 Wash. 513, 135 P. 224 (1913) (distinguishing those guaranties that secure the payment of a given note from those that secure a general indebtedness). Contrary to the argument of the petitioner, the language in the first sentence of the guaranty that speaks of an extension of credit does not support a contrary result, for it does so in the context of the consideration given by the Bank for the guaranty, not in that of the obligation undertaken by Dr. Ghosh.

Once it is determined that the guaranty secured only the payment of the June, 1971, note, it becomes immaterial whether that note was paid, as found by the trial judge, or renewed, as argued by the petitioner. If the note was paid, Dr. Ghosh’s obligation to secure its payment ended. 38 AmJur. Second Guaranty § 78. However, even were we to assume that the note was renewed, the Bank’s claim would fail. Given a noncommercial guarantor, where a principal and creditor, without the guarantor’s consent, make a binding agreement to extend the time of payment by the principal, the guarantor is discharged unless the creditor expressly reserves his rights against him. Restatement of Security, § 129; 38 AmJur. Second Guaranty § 96; Annot., 74 A.L.R.2d 734. Here there is no question but that the first renewal note, executed on June 3, 1972, was at the least such a binding agreement to extend the time of payment. Furthermore, there is no indication either that Dr. Ghosh consented to such an extension, or that the Bank in making the extension reserved its rights against him. Accordingly, Dr. Ghosh was discharged from his guaranty at the time of the execution of June 3, 1972, note, and no basis remains for the claim pressed against his estate by the petitioner.

The judgment below is affirmed. Costs will be taxed to the petitioner.

FONES, BROCK and HARBISON, JJ. and HUMPHREYS, Special Justice, concur.

      . In this context, a commercial guarantor is one who engages in the business of executing such guaranties for compensation. There is no indication that Dr. Ghosh did so. See Restatement of Security, § 82, comment (i). Compare Restatement of Security, § 129(2).


author: HARBISON, Justice. BROCK, Justice,

text:
    OVERTON SQUARE, INC. et al., Petitioners-Defendants, v. Loretta A. BONE, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    Feb. 12, 1979.

      Richard Glassman, Memphis, for petitioners-defendants.
    Walter Buford, James L. Hutter, Memphis, for respondent-plaintiff.
   OPINION

HARBISON, Justice.

Petitioners are the owners and operators of a restaurant in Memphis. Respondent was a patron of the restaurant on January 28, 1975 and sustained injuries when she fell from the back entry of the restaurant, down a flight of six steps onto a paved parking lot.

The steps were constructed of brick with iron handrailings along each side and were one hundred nineteen and one-half inches wide. Provisions of the city building code required stairways exceeding eighty-eight inches in width to have an intermediate handrail, and petitioners’ steps were not so equipped. The respondent fell from the top of the steps on the westerly side diagonally across them, terminating her fall at a point opposite the easterly foot of the steps.

Although various acts of negligence on the part of the petitioners were charged in the complaint and in the opening statement of counsel, respondent was unable to explain the initial cause of her fall. Apparently she simply lost her balance when she turned from talking with an employee of the restaurant. She moved to her right, intending to re-enter the back door. The steps and the landing area at the top of them, adjacent to the back door, were crowded with patrons, but there is no evidence that the respondent was jostled by another patron. Nor is there any proof that a foreign substance on the floor of the landing or that any other act or omission of the petitioners, or of anyone for whom they might be responsible, caused or contributed to respondent’s initial loss of her balance. She was wearing shoes called “clogs,” and it is possible that these may have been a factor in causing her to slip.

On the other hand, petitioners were admittedly guilty of negligence in not having the type of handrails required by the city building code. The question presented, therefore, is whether or not the absence of a proper handrail was a proximate causative factor in the injuries which respondent sustained — or, more properly, whether the trier of fact could reasonably so determine.

At the conclusion of the evidence of respondent, the trial court directed a verdict in favor of the petitioners, holding that there was insufficient proof of causative negligence to take the case to the jury. The Court of Appeals reversed, holding that the respondent was within the class of persons which the ordinance was designed to protect and that reasonable minds might differ upon the question of whether the absence of the handrail was a proximate cause of the resulting injuries. In the course of her fall, according to respondent, she virtually turned a cartwheel, landing violently on both feet, fracturing one ankle and either fracturing or severely spraining the other.

Petitioners contend that it is purely a matter of speculation whether the presence of a handrail down the center of the steps would have broken the fall of respondent and prevented the injuries. They also contend that respondent, had she struck such a handrail, might have been injured just as seriously as she in fact was. They admit that the purpose of the ordinance requiring a center handrail is to assist persons in negotiating the steps safely, to prevent one from losing his balance, and to provide a means of support. Basically, however, it is their insistence that such a handrail is not designed to break the descent of a person falling from the landing above.

On the other hand, respondent testified that she slipped and was falling backward across the steps. The record states:

“Q. You recall specifically going straight across the steps?
A. Yes, sir, because I remember having my arms out trying to reach something.
Q. I see, and you were tumbling head over heels at that time?
A. Well, it’s kind of hard to tell how you’re tumbling but I was tumbling.
Q. If something had been there, you might have struck your head on it or got your arm or leg caught in it, isn’t that true?
A. If something had been there, maybe I could have grabbed onto it and I wouldn’t have gone all the way down the steps.”

Very closely in point is the case of American National Bank v. Wolfe, 22 Tenn.App. 642, 125 S.W.2d 193 (1938). There the patron of a bank slipped on a flight of marble steps leading from the main banking floor into the basement. The stairs had a handrail on her right, but not on her left, although city ordinances required handrails on both sides. Plaintiff did not know what caused her initial fall, but the Court of Appeals held that the issue of whether the absence of the handrail was a proximate cause of her injury was properly submitted to the jury. The court said:

“It is shown that there was no foreign substance on the steps; it is not shown that the accident was caused by the steps being worn; the absence of the hand-rail did not cause her to slip; but she said that she fell against the wall and tried to catch to the wall but couldn’t hold to the coping, as there was no hand-rail. But it is a question for the jury whether, after her feet slipped and she fell to the left side of the stairs, she could have caught the hand-rail (if there had been a handrail there) and stopped her fall.” 23 Tenn.App. at 649, 125 S.W.2d at 197.

As stated by the Court of Appeals of Kentucky in a case where a motel patron slipped on a hall floor and fell down some steps lacking a required handrail:

“With respect to causation, we do not believe that the purpose of handrails adjacent to a flight of stairs is only to prevent those falls that are caused by the presence of the stairs. The danger of injury to a person who falls at or near the head of a flight of stairs is increased by its presence. No matter where his loss of footing originates, if the fall carries him onto or into the flight of stairs he is just as much entitled to the protection of a handrail as would be the case if he had first lost his balance while on the stairs.” Whitehead v. Ramada Inns, Inc., 529 S.W.2d 366, 367 (Ky.1975).

Although the issue is close, we are of the opinion that reasonable minds could differ as to whether the failure of petitioners to comply with the requirements of the building code was or was not a causative factor in producing the injuries suffered by respondent, a business guest on the premises. Accordingly we affirm the judgment of the Court of Appeals, remanding the case to the trial court for a new trial. Costs incident to the appeal are taxed to petitioners. All costs in the trial court will abide the final result there.

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

BROCK, J., dissents.

BROCK, Justice,

dissenting.

I respectfully dissent from the decision and opinion of the majority in this case. I do so for two reasons, viz., (1) the plaintiff’s evidence failed to establish the violation of any duty owed to her and (2) there is no evidence from which the jury could find that failure of the defendant to have the handrail required by the city code was a proximate cause of the plaintiff’s injury.

The mere fact that the defendants had not installed a handrail running from top to bottom and in the center of the stairway, as required by the Memphis City Code, does not establish that the defendants violated any duty owed to the plaintiff in the circumstances of this case. In De Haen v. Rockwood Sprinkler Co. of Massachusetts, 258 N.Y. 350, 179 N.E. 764, 766 (1932) the great Cardozo, writing for the court, said:

“Liability is not established by a showing that, as chance would have it, a statutory safeguard might have avoided the particular hazard out of which an accident ensued. The hazard out of which the accident ensued must have been the particular hazard or class of hazards that the statutory safeguard, in the thought and purpose of the Legislature, was intended to correct.”

Applying that rule to this case, it appears to me that the purpose of the Memphis ordinance was to protect the safety of persons who purposely go up or down the steps of the stairway. I cannot believe that it was intended to protect the safety of one who “. . . simply lost her balance when she turned from talking with an employee of the restaurant . . moved to her right, intending to re-enter the back door.” See Prosser on Torts, Hornbook Series, at 271 (1st ed., 1941).

In a case which is quite similar to the case at bar, Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70 (1948), the Kentucky court denied liability to a patron of the hotel who, while descending a stairway of the hotel, was accidentally struck from behind by another person who fell on the stairway, thereby knocking the plaintiff’s feet out from under her and causing her to fall and suffer injuries. The theory of the plaintiff was that the defendant was negligent because it had failed to erect a guardrail up and down the center of the stairway as required by an ordinance of the City of Louisville. In denying a recovery to the plaintiff, the court said:

“It is argued by appellant that the purpose of the ordinance was limited to the protection of persons in going from the building in case of fire. We cannot agree with appellant in this argument. Obviously the purpose of the ordinance was for the safety of persons using the steps either in ingress or egress.
“But we can agree with appellant in that the particular thing that happened here was most likely not within the zone of apprehension of the ordinance. If the violation of an ordinance calling for a prescribed safeguard does not necessarily establish liability, it will be much more so if the ordinance is intended only to protect against hazards entirely different in kind to the occasion of the injury. It follows then that where a statutory command is not obeyed there is no breach of duty toward those who do not come within the zone of apprehended danger.” (Emphasis added.) 209 S.W.2d at 71, 72.

Actually, the plaintiff in the Kentucky case came far closer to falling within the class of persons intended to be protected by the ordinance than does the plaintiff in the instant case because, in the Kentucky case, the plaintiff was actually descending the stairway when injured, whereas, the plaintiff at bar was making no attempt to go either up or down the stairs when injured. “In the absence of any other guide, a statute may well be assumed to cover all risks that may reasonably be anticipated as likely to follow from the violation.” Prosser on Torts, supra.

Although the defendants violated their legal duty as citizens of the City of Memphis in failing to comply with the requirement of the code that a handrail be erected from top to bottom of the stairway in question, it is my view that before the violation of that ordinance may properly be held to be a breach of duty to a particular person in a tort action it must be shown that such person is one of those whom the ordinance was intended to protect, i. e., one who was purposely ascending or descending the stairway.

Although my principal disagreement with the majority is on the point just discussed, it is my further opinion that the evidence in this case fails to show that the absence of a handrail running from top to bottom of the middle of this stairway was a proximate cause of the plaintiff’s injury. Her testimony is that she “cartwheeled” down the steps and landed on the ground on her feet thereby injuring both ankles. If this be true, I am unable to see that a handrail erected in the fashion required by the Memphis City Code would have been of any assistance to her. Handrails running down the center of a stairway are designed for holding onto by one who is ascending or descending a stairway, not to protect people from falling off porches.

I would reverse the judgment of the Court of Appeals and affirm that of the trial court.

      . Excerpt from plaintiffs complaint.


author: O’BRIEN, Judge.

text:
    Clarence Douglas WILLIAMS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 16, 1978.
    David D. Noel, Knoxville, for appellant.

      Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Ronald A. Webster, Dist. Atty. Gen., James Russell Dedrick and William H. Crabtree, Asst. Dist. Attys. Gen., Knoxville, for appellee.
   OPINION

O’BRIEN, Judge.

Defendant was indicted in separate counts for forgery and passing a forged instrument, and as an habitual criminal on each of these charges. He was convicted of passing a forged instrument with punishment fixed at not less than three years nor more than four years in the penitentiary. He was also found guilty of being an habitual criminal with his punishment enhanced on the original conviction to life imprisonment. The judgment of the trial court was that he be imprisoned in the State Penitentiary at hard labor for the remainder of his natural life.

At the outset we note that the State has candidly and correctly called to our attention that conviction for passing a forged check is not a triggering charge for enhancement of punishment under the Habitual Criminal Act.

T.C.A. Sec. 40-2801, in pertinent part, defines an habitual criminal to be “any person who has . . . been three (3) times convicted within this State of felonies, not less than two (2) of which are among those specified in Sections 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(l)(A) ...”

T.C.A. Sec. 40-2802 provides, “When an habitual criminal, as defined in this chapter, is charged, by presentment or indictment, with the commission of any of the felonies specified in Sections 39-604, 39-605, 39-609, 39-610, 39-3708, 40-2712, 52-1432(a)(l)(A), or any crime for which the maximum punishment is death, and is also duly charged therein with being an habitual criminal, as defined in Section 40-2801, he shall upon conviction, be sentenced and punished as an habitual criminal . , .” (Italics ours).

Forgery, with which defendant was charged in the first count of the indictment, is an included offense under T.C.A. Sec. 40-2712, but passing a forged instrument is not. This court has held that forgery and uttering a forged instrument are separate and distinct offenses, and that neither is included within the other. Anderson v. State, 553 S.W.2d 85, (Tenn.Cr.App. 3/10/77), cert. denied 6/13/77. Conviction on one count of an indictment operates as acquittal on other counts. State v. Abernathy, 153 Tenn. 441, 284 S.W. 361. It results that the life sentence on the habitual criminal count in the indictment must be vacated and set aside. The judgment is modified to fix the sentence in accordance with the jury verdict at not less than three (3)years nor more than four (4) years in the penitentiary.

We have examined the other assignments of error and find them to be without merit. The evidence was more than adequate to support the conviction. The proof showed the check passed by defendant had been stolen. The signature of the drawer was unauthorized. Defendant was positively identified as the individual who passed the check under an assumed name. This was corroborated by his own admission. There was adequate evidence that defendant had actual knowledge of the false character of the check which he cashed. This was a fact question to be determined by the jury. Keebler v. State, 3 Tenn.Cr.App. 447, 463 S.W.2d 151.

The record does not sustain defendant’s charge that he was required to proceed to trial without the presence of a material witness. The judgment of the trial court in such matters will not be disturbed in the absence of a clear showing of an abuse of discretion to the prejudice of the defendant. Woods v. State, 552 S.W.2d 782 (Tenn.Cr.App.1977). We overrule the assignment.

Defendant attempted to impeach his own witness at trial by asking leading questions. The witness had a case pending before the grand jury involving bad checks relating to the same incident for which defendant was at trial. The general rule is that a party may not impeach his own witness except in a case where the witness is indispensable to his defense, or is hostile and takes the party by surprise. The impeachment process is limited to those cases where the testimony of a witness is in direct contradiction to prior statements. A witness may not be impeached who is merely reluctant to give testimony or unless the testimony is actually prejudicial. Mays v. State, 495 S.W.2d 833 (Tenn.Cr.App.1972).

We affirm the judgment of the trial court as modified.

DAUGHTREY and BYERS, JJ., concur.


author: BARROW, Justice.

text:
    Nora Mae TYLER et al., Relators, v. George E. COOK et al., Respondents.
    No. B-7910.
    Supreme Court of Texas.
    Oct. 13, 1978.
    See also, Tex.Civ.App., 573 S.W.2d 567.
    Hardy W. Hollers, Samuel D. McDaniel, Austin, for relators.
    Clyde Farrell, Harlingen, Warren N. Weir, San Antonio, for respondents.
   ORIGINAL MANDAMUS

BARROW, Justice.

This is a petition for writ of mandamus brought by the duly nominated and certified candidates of the Democratic Party for the offices of county judge, county-district clerk, and precinct No. 2 commissioner of La Salle County to direct the present county clerk to exclude the names of three independent candidates for the same offices from the ballot for the November general election. Relators urge that the applications filed by these independent candidates do not comply with the Texas Election Code in that substantially all of the required signatures were signed prior to the general primary and runoff primary elections and further they do not include the signer’s proper address. We agree that the applications were signed prematurely and grant the petition for mandamus.

The right of a person to have his or her name printed on the official ballot as an independent candidate is governed by Article 13.50 of the Code which provides in part as follows:

Subd. 2 — The candidate must file by the deadline provided in Art. 13.12 (6 p. m. on the first Monday in February preceding such primary) a declaration of his intent to run as an independent candidate.
Subd. 3 — The candidate must deliver a written application signed by the requisite number of qualified voters to the proper officer within 30 days after the second primary election day.
Subd. 4 — No person shall sign such application unless he is a qualified voter, and no person WHO HAS voted at either the general primary election or the runoff primary election of any party shall sign an application in favor of anyone for an office for which a nomination was made at either such primary election. (Emphasis added.)
Subd. 5 — In addition to the person’s signature, the application shall show each signer’s address, the number of his voter registration certificate, and the date of signing.

Article 13.51 of the Code requires each page of the application to contain the following statement:

I know the contents of this application; I HAVE NOT participated in the general primary election or the runoff primary election of any party which has nominated, at either such election, a candidate for the office for which I desire (name') to be a candidate. (Emphasis added.)

Each part of the application must contain an affidavit of the person who circulated it stating that:

He called each signer’s attention to the statement and read it to him before the signer affixed his signature to the application, and further stating that he witnessed the affixing of each signature, that the correct date of signing is shown on the application, and that to the best of his knowledge and belief each signature is the genuine signature of the person whose name is signed.

The record before us establishes that most of the signatures on respondents’ applications were obtained before the primary election in La Salle County on May 6, 1978; and without these signatures, respondents’ application would not have the number of signatures required by Art. 13.50, Subd. 3. Respondent candidates urge that no harm was done in that they have made affidavits, uncontroverted by relators, that none of the persons whose names appear on respondents’ applications voted in either the subsequent general primary election or runoff primary election of any political party in 1978.

While there is no provision in the Code which expressly requires that the application be signed after the runoff primary election, other provisions require this result. The legislature expressly provided that no person shall sign such an application “who has voted at either the general primary election or the runoff primary election of any party.” The legislature emphasized the importance of this requirement by directing the voter to date his signing and further requiring an affidavit of the person who circulated the application stating that he had called the signer’s attention to the statement that he had not voted as well as verifying that the correct date of signing is shown on the application. The person signing the application could not properly state that “I have not participated in the general primary election or the runoff primary election . . . ” unless it was signed subsequent to the runoff primary election.

We have found no prior Texas case which considered this particular requirement; however in American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), the United States Supreme Court construed Article 13.50 as requiring that the application be signed by the qualified voters within thirty days after the runoff primary election.

In La Raza Unida Party v. Dean, 462 S.W.2d 570 (Tex.1970), the party sought mandamus to require the names of its candidates to be placed on the ballot under Article 13.54 of the Code. This Court denied the writ for the reason that the party had obtained the required signatures prior to its convention. Article 13.54 then provided in part that all nominations made by the county conventions be certified to the county clerk and be printed on the official ballot “provided, a written application for such printing shall have been made to the county judge, signed and sworn to by three per cent (3%) of the entire vote cast in such county at the last general election.” This Court said:

The statute does not expressly provide that the application to have the names of the party’s nominees printed on the ballot shall be signed and filed AFTER the names of the nominees have been certified to the county clerk, but that seems to us to be the only logical and reasonable interpretation; otherwise, party leaders could foist upon the signers totally unacceptable candidates and thus defeat the purpose of the application.

It was also said that such an interpretation served the further beneficial purpose of assuring that persons asked to sign a 13.54 petition will, more often than not, have available to them the names of all other candidates for the same offices, and will be in a better position to make an intelligent decision as to whether they should sign.

This beneficial purpose is served by the legislature’s requirement that these applications be signed after the primary runoff election. Also, such requirement furthers the legitimate purpose of encouraging full voter participation in the primary elections and minimizing interference with and disruption of that process. In Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the United States Supreme Court recognized and upheld valid state objectives accomplished by placing reasonable limitations on the availability of the general ballot to independent candidates.

The legislature has implicitly required that the application to place the name of an independent candidate on the general ballot be signed by a qualified voter after the runoff primary election. Otherwise, the signer could not state that he HAD NOT voted in the general primary election or the runoff primary election of any party for an office for which a nomination was made at either such primary election. It is conceded by respondent candidates here that substantially all of their signatures were obtained prior to the primary election. Since respondent candidates were not nominated in accordance with the provisions of this Code, their names should not appear on the official ballot. Article 6.01. Relators as duly nominated and certified candidates for these same offices are entitled to the writ prayed for in this situation. Thiel v. Harris Cty. Democratic Exec. Com., 534 S.W.2d 891 (Tex.1976). It is unnecessary to consider the question of whether the signers complied with the address provisions of Article 13.50.

Accordingly, the writ of mandamus will issue directing respondent George E. Cook to exclude the names of Henry F. Potthast, Luis R. Garcia, and Agapito Delgado, III from the official ballot for the 1978 general election. In view of the shortness of time before the ballot must be printed, no motion for rehearing will be entertained.

      . We granted relators’ motion for leave to file this proceeding after their petition for mandamus was denied by the Court of Civil Appeals for the Fourth Supreme Judicial District with Chief Justice Cadena dissenting.

      . All statutory references are to Texas Election Code Annotated.


author: DENTON, Justice.

text:
    WESTCHESTER FIRE INSURANCE COMPANY, Petitioner, v. Esperanza ALVAREZ et al., Respondents.
    No. B-7517.
    Supreme Court of Texas.
    Oct. 25, 1978.

      Groce, Locke & Hebdon, Thomas H. Crofts, Jr. and Damon Ball, San Antonio, for petitioner.
    Pepos S. Dounson, San Antonio, for respondents.
   DENTON, Justice.

The question in this case is whether the specificity requirement in Texas Rules of Civil Procedure 166-A(c) is waived by failure to except to the motion for summary judgment prior to rendition of judgment.

The trial court granted defendant, West-chester Fire Insurance Company, a summary judgment which ordered that plaintiff, Esperanza Alvarez, take nothing and that Westchester Fire Insurance Company take the $10,000 deposited in the registry of the court. The court of civil appeals held that the motion for summary judgment did not state the specific grounds for such judgment. It reversed the trial court judgment and remanded the cause to the trial court. 562 S.W.2d 263. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Mrs. Esperanza Alvarez’s husband was killed in an automobile accident on October 25, 1973, while in the scope and course of his employment for Charles Carroll Company. Carroll Company was insured for workers’ compensation by Westchester Fire Insurance Company, which began paying to Mrs. Alvarez the maximum weekly benefit payable under workers’ compensation law within seven days of the accident. Mrs. Alvarez and her children then filed a wrongful death suit against Virginia Howard Williams, the owner and operator of the automobile involved in Mr. Alvarez’s death. This suit, in which Westchester Fire Insurance Company intervened, was settled for $10,000 by an agreed judgment on January 15, 1976. The funds were paid by a check payable jointly to Mrs. Alvarez, her children, their attorney, Westchester Fire Insurance Company and its agent.

Mrs. Alvarez brought suit against West-chester Fire Insurance Company for $3,500 of the $10,000. Westchester Fire Insurance Company filed a motion for summary judgment. The record and the affidavits attached to the motion undisputedly establish that Westchester Fire Insurance Company had paid Mrs. Alvarez more than $10,000 in workers’ compensation benefits and was therefore subrogated to the rights of Mrs. Alvarez in the $10,000 check under Article 8307 § 6, but the motion did not specifically state this ground or any other ground for judgment as required by Rule 166-A(c). Mrs. Alvarez did not point out this defect in her response to the motion for summary judgment nor did she except to the failure of Westchester Fire Insurance Company to state specific grounds for summary judgment. She raised the objection for the first time in her brief submitted in the court of civil appeals.

Rule 166-A(c) states that “the motion for summary judgment shall state the specific grounds therefor.” The purpose of this requirement is to provide the opposing party with adequate information for opposing the motion, and to define the issues for the purpose of summary judgment. In this respect, the specificity requirement in Rule 166-A(c) parallels the pleading requirements of Rule 45(b) and Rule 47(a). Although Rule 90 does not specifically refer to summary judgment pleadings, the same considerations apply. Just as defects in pleadings are waived unless specifically pointed out by motion or exception in writing before the charge to the jury or rendition of judgment, we hold that the failure of a motion for summary judgment to specify grounds is a defect of form that is waived unless excepted to prior to rendition of judgment. The Life Insurance Company of Virginia v. Gar-Dal, Inc., et. al., 570 S.W.2d 378 (Tex.1978); Jones v. McSpedden, 560 S.W.2d 177 (Tex.Civ.App.—Dallas 1977, no writ); Spray v. Stash, 523 S.W.2d 262 (Tex.Civ.App.—Eastland 1975, writ ref’d n. r. e.).

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Statutory references are to Vernon’s Texas Civil Statutes Annotated. Reference to rules are to the Texas Rules of Civil Procedure.


author: STEAKLEY, Justice. GREENHILL, Chief Justice, STEAKLEY, Justice.

text:
    Elroy M. SATTERLEE, Tax Assessor-Collector, Pasadena Independent School District, et al., Petitioners, v. GULF COAST WASTE DISPOSAL AUTHORITY et al., Respondents.
    No. B-7400.
    Supreme Court of Texas.
    Nov. 1, 1978.
    Rehearing Denied Dec. 29, 1978.

      Baskin, Fakes & Stanton, Stanley D. Bas-kin, Pasadena, Joe Resweber, County Atty., Larry W. Hays and Paul Bibler, Jr., Asst. County Attys., Houston, for petitioners.
    Fulbright & Jaworski, Rufus Walling-ford, Baker & Botts, Frank G. Harmon, M. L. Skelton, Butler, Binion, Rice, Cook & Knapp, Donald B. McFall, Vinson, Elkins, Searls, Connally & Smith, Ben H. Rice, III, Andrews, Kurth, Campbell & Jones, Lawrence L. Bellatti, Houston, for respondents.
   STEAKLEY, Justice.

This suit was instituted by Gulf Coast Waste Disposal Authority, a political subdivision of Texas, against the taxing authorities of Harris County and of the Pasadena Independent School District. Its purpose was to obtain a judicial declaration that a tract of real property of approximately 35 acres located within the County and School District, together with all improvements thereon, is exempt from taxation. The property in question will be identified later. In the course of pleadings filed in the proceeding, the taxing authorities assumed the position of counter-claimants. As such they sought judgment for taxes legally due; the Authority and five private industries— Champion International Corporation, Atlantic Richfield Company, Air Products and Chemicals, Inc., Crown Central Petroleum Corporation, and Petro-Tex Chemical Corporation — were named as counter-defendants.

The trial court ruled that the property in question was exempt from taxation and decreed that the taxing authorities take nothing under their counter-claims. This judgment was affirmed by the Court of Civil Appeals. 561 S.W.2d 869.

The Authority acquired legal title to the property in a transaction represented by two written instruments: a Facilities Agreement dated August 24, 1972, and a subsequent limited conveyance termed a Special Warranty Deed dated June 4, 1973. The signatories to the Facilities Agreement were the Authority, Champion International Corporation, Air Products and Chemicals, Inc., Atlantic Richfield Company, Crown Central Petroleum Corporation and Petro-Tex Chemical Corporation. The Grantor in the subsequent conveyance was Champion International Corporation.

Article VIII, § 2(a) of the Texas Constitution provides that “. . . the legislature may, by general laws, exempt from taxation public property used for public purposes . . . .”

The enabling statute, Article 7150, § 4, provides that there shall be exempt from taxation “All property, whether real or personal, belonging exclusively to this State, or any political subdivision thereof, . . .”

The initial problem to be solved is whether these instruments, when viewed in their entirety, vested exclusive ownership of the property in the Authority as required for tax exemption. We hold that they did not.

It was stated in Recital 4 of the Facilities Agreement that “the Authority proposes to construct an integrated regional waste collection, treatment and disposal system sufficient to receive, treat and dispose of industrial waste from Participants’ plants.”

Recital 7 of the Agreement recognized the economic value flowing to the participating private industries: “The Authority has determined that it can collect, treat and dispose of the industrial waste of the Participants by the purchase and/or construction of an integrated collection, treatment and disposal system more economically than the Participants can furnish separately said services, . . . .” Prior to the transaction the signatory industries had been responsible for the disposition of their own industrial waste. It is also apparent that the construction of new facilities, together with the additions to existing facilities, were to be financed by publicly sponsored revenue bonds, an arrangement of obvious advantage to the participating industries.

Paragraphs 8.1-10.5 of the Agreement pertain to three facilities: The Primary Treatment Facility, The Secondary Treatment Facility and The Sludge Disposal Facility. As to these, the Agreement provided that Champion would deliver a deed in required form to the Authority after sufficient proceeds from certain specified bonds had been deposited. Although the record is unclear, it seems to be the case that Champion had previously constructed and was using the first two facilities located on the land in question, and that the third facility had been or would be constructed on the same tract.

The Facilities Agreement further defined in detail and at considerable length the contractual obligations of the parties, particularly the restrictions imposed on the Authority in the operation of the facilities. Illustrative are these provisions:

2.4 The Authority shall expand the Facilities to increase the capacity or to upgrade the treatment at the request of all Participants or at the request of any Participant, provided that any such Participant or Participants pay all costs of construction or purchase or agree to amortize the cost of any Bonds sold to pay for any such expansion and to pay any other additional costs occasioned by any such expansion, as determined by the Authority and approved by the Industrial Advisory Council. Participants shall have the prior right to all present and future capacity of the Facilities. The Authority shall restrict the use of the land described in Exhibit E to the use of the Participants, unless otherwise agreed to by all Participants.
2.5 The Authority shall not transfer control or operation of the Facilities to any other governmental agency or to any one of the Participants or to any third party without written consent of the Participants.
22.3 The Authority agrees to operate the Facilities which it is obligated to operate under the terms hereof with Authority supervisory personnel and to allow the Participants to provide such additional personnel as may be necessary to operate the Facilities during any Authority work stoppage.
22.4 Any provision of this Agreement to the contrary notwithstanding, the Participants, or any of them, shall have the right to operate or cause to be operated the Facilities in the event the Authority cannot operate the Facilities because of force majeure or refuses to accept the Industrial Waste. The Authority agrees to assist the Participants in the management, operation and maintenance of the Facilities during any period of force maj-eure should the Participants elect to operate the Facilities.
26.1 The Authority may enter into contracts with Other Corporations for the treatment of their wastes in the Facilities; provided, however, that such contracts are approved by all Participants, which approval shall not be unreasonably withheld.

Additional control is retained by the industry Participants through the Industrial Advisory Council, composed of one representative from each Participant. Each pipeline and treatment facility must have an operating manual prepared by the Authority and approved by the Industrial Advisory Council. Monthly operating reports on each facility must be submitted to the Council. All construction contracts must be approved in writing by the Council in accordance with plans and specifications prepared by the Authority’s engineers and previously approved by the Council. The Council must approve any change orders in construction contracts. The expenditure of funds is tightly controlled. Monthly financial statements must be submitted to the Council and the records and books of the Authority must be open to audit by any Participant at any time.

Thereafter, under date of June 4, 1973, Champion, by Special Warranty Deed conveyed to the Authority 35.633 acres of land, together with the improvements thereon. This is the property in question. The conveyance contained these provisions as required by the Facilities Agreement:

Grantor, it[s] successors and assigns, excepts and reserves all of the oil, gas and other minerals in, under and that may be produced from the Subject Property; . . .
This conveyance is delivered and accepted subject to exceptions, limitations, covenants, reservations, restrictions and all matters recited in all deeds, leases, easements or other instruments listed, described or set forth in Exhibit A attached hereto and hereby made a part hereof.
This Special Warranty Deed is delivered and accepted pursuant to, and subject to the terms and provisions of, that certain Facilities Agreement dated as of August 24, 1972, by and between Gulf Coast Waste Disposal Authority, Air Products and Chemicals, Inc., Atlantic Richfield Company, Champion International Corporation, Crown Central Petroleum Corporation and Petro-Tex Chemical Corporation (hereinafter called “the Facilities Agreement”).
TO HAVE AND TO HOLD all and singular the Subject Property, subject to the foregoing restrictions, exceptions and reservations, unto Grantee, its successors and assigns, so long as the Subject Property is used as a facility for the treatment of “Industrial Waste” (as said term is defined in said Article 7621d-2 on the date of execution hereof), and upon cessation of such use, the Subject Property together with all improvements now or hereafter located thereon, shall automatically revert to Grantor, its successors and assigns, without the necessity of re-entry or any other action on the part of Grant- or, its successors and assigns; and Grant- or does hereby bind itself, its successors and assigns to WARRANT and FOREVER DEFEND all and singular the Subject Property, subject to the foregoing restrictions, exceptions and reservations and subject to the foregoing special limitation, unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof by, through or under Grantor, but not otherwise. This conveyance is made with full substitution and subrogation of Grantee in and to all covenants and warranties by others heretofore given or made with respect to the Subject Property or any part thereof.

It is thus apparent on the face of the written instruments underlying the arrangement between the Authority and the participating industries that the legal title of the Authority in the property is strictly governed and encumbered by the Facilities Agreement for the use and benefit of these private industries and that the Authority holds title only so long as it is used as a facility for the treatment of industrial waste.

In Standard Oil Company of Texas v. State, 142 S.W.2d 519 (Tex.Civ.App.1940, writ ref’d), the Court construed the words of the chain store tax exempting “any place of business engaged exclusively in the storing, selling or distributing of petroleum products and servicing of motor vehicles.” The Court wrote that the word “exclusively” was used by the Legislature synonymously with “only” and “purely” and cited 23 C.J. 275 where the word exclusively was defined as “to the exclusion of all others; without admission of others to participate; in a manner to exclude.” It was ruled that the term as used and intended by the Legislature meant “only” or “to the exclusion of all others.” This Court refused the application for writ without qualification and thereby manifested approval of this construction of the statute. See Hamilton v. Empire Gas and Fuel Co., 134 Tex. 377, 110 S.W.2d 561 (1937).

The Supreme Court of Wisconsin, in ruling the land there involved to be subject to taxation and not to exemption, wrote that “exclusive ownership” is necessarily ownership free from any kind of legal or equitable interest in any one else. Comstock v. Boyle, 144 Wis. 180, 128 N.W. 870 (1910). This same Court later wrote that taxation or exemption depends not upon the legal title but on the status of the owner of the beneficial interest in the property; and that the Court will always look to the substance and not to the form. State v. Bareis, 257 Wis. 497, 44 N.W.2d 259 (1950). See also Mitchell Aero, Inc. v. City of Milwaukee, 42 Wis.2d 656, 168 N.W.2d 183 (1969).

In speaking of land taxable to the owner of a beneficial interest who did not have legal title, the United States Supreme Court wrote in Montana Catholic Missions v. Missoula County, 200 U.S. 118, 26 S.Ct. 197, 50 L.Ed. 398 (1906):

. . The expression “beneficial use” or “beneficial ownership or interest” in property is quite frequent in the law, and means, in this connection, such a right to its enjoyment as exists where the legal title is in one person and the right to such beneficial use or interest is in another, and where such right is recognized by law, and can be enforced by the courts, at the suit of such owner or of some one in his behalf.

26 S.Ct. at 200.

The Washington Supreme Court has written that “beneficial interest” is profit, benefit or advantage resulting from contract or ownership of estate as distinct from legal ownership or control. Christiansen v. Department of Social Security, 15 Wash.2d 465, 131 P.2d 189 (1942).

In our view, the conclusion is inescapable that under the terms of the Special Warranty Deed from Champion to the Authority, and of the Facilities Agreement to which it was subject, the Authority acquired substantially less than exclusive ownership of the property in question.

The Authority argues to the contrary that even assuming that the provisions of the Facilities Agreement give rise to an equitable interest, this does not prevent the property from belonging exclusively to the Authority, citing City of Beaumont v. Fertitta, 415 S.W.2d 902 (Tex.1967). This was not the problem in Fertitta and the decision does not rule this case. The legal title of the City of Beaumont was not encumbered as is that of the Authority here under the Facilities Agreement, and no question was there raised or decided with respect to the exclusive ownership prerequisite to tax exemption. After Fertitta, we approved without qualification the opinion of the Court of Civil Appeals in Maverick County Water Control & Improvement District # 1 v. State, 456 S.W.2d 204 (Tex.Civ.App.1970, writ ref’d). There the Court recognized Fertitta but cited State v. Bexar-Medina-Atascosa Counties Water Improvement District; 310 S.W.2d 641 (Tex.Civ.App.1958, writ ref’d), also approved by this Court, where it was held that land did not belong exclusively to the State while the contract with the Veterans Land Board remained in effect. As to this, the Court in Maverick wrote that “While the contract was in ef-feet, the land was ‘owned by the Veteran,’ 310 S.W.2d at 643, with the State holding only the legal title.” The Court upheld the tax exemption in Maverick for the reason as stated in the opinion that the Veterans Land Board “held full legal and equitable title to the land.” We approved the principles of law declared in the opinion by unqualified refusal of writ of error.

Our conclusion that the Authority was not vested with the requisite exclusive ownership renders unnecessary a re-examination of the holding in Fertitta that Article 7150, § 4, provides for the exemption from taxation of municipal property regardless of the use to which it is put or the purposes for which it is held.

As previously indicated, the Authority by the institution of this suit sought judgment declaring that the property and all improvements thereon are exempt from taxation, with a direction to the taxing authorities to remove the property from their tax rolls. The counter-claim of the taxing authorities sought judgment against the counter-defendants for the total amount of taxes then due, together with penalties, interest, cost and other expenses legally due and owing. The courts below granted the declaratory relief sought by the Authority and did not reach the issues to be adjudicated in the counter-claim of the taxing authorities. The judgments below are therefore reversed and the cause is remanded to the trial court for further proceedings in accordance with this opinion.

POPE, J., concurs in the result.

GREENHILL, C. J., concurs.

GREENHILL, Chief Justice,

concurring.

I am unable to reconcile a part of the court’s opinion with the holding of this court in City of Beaumont v. Fertitta, 415 S.W.2d 902 (Tex.1967).

I agree with the court’s judgment of this case because the property in question is strictly governed and encumbered by the Facility Agreement for the use and benefit of the private industries, and because I am of the opinion that this court’s opinion and judgment in Fertitta was, and is, wrong. I joined two other justices in the dissent in that case.

The municipality’s title to the land in Fertitta was subject to a long-term lease wholly for private use. As the dissent in Fertitta said, “The Court is now holding for the first time that the Legislature may exempt municipal property devoted to private use.”

The better rule is stated by this court in Leander Independent School District v. Cedar Park Water Supply Corp., 479 S.W.2d 908 (1972), where we said, “We accordingly now hold that the clause [of the Texas Constitution] in question authorizes the Legislature to exempt only publicly owned property used for public purposes.”

ON MOTION FOR REHEARING

STEAKLEY, Justice.

We ruled in the original opinion that as a matter of law the subject property was not exclusively owned by the Authority under the manner of its acquisition; and that for this reason the property was not exempt from taxation under Article VIII, Sec. 2(a) of the Constitution and the enabling statute, Article 7150, Sec. 4. The Authority in its Motion for Rehearing urges, in effect, that, nonetheless, the property is tax exempt under Article XI, Sec. 9 of the Constitution which provides:

The property of counties, cities and towns, owned and held only for public purposes, such as public buildings and the sites therefor, fire engines and the furniture thereof, and all property used, or intended for extinguishing fires, public grounds and all other property devoted exclusively to the use and benefit of the public shall be exempt from forced sale and from taxation, .

It is to be noted that this provision speaks specifically of “property of counties, cities and towns”; but it was held in Lower Colorado River Authority v. Chemical Bank & Trust Co., 144 Tex. 326, 190 S.W.2d 48 (1945), that the property of the Lower Colorado River Authority is exempt from taxation as a governmental agency. Later, in Leander Independent School District v. Cedar Park Water Supply Corporation, 479 S.W.2d 908 (Tex.1972), we wrote:

A reading of these two sections indicates that the framers of the Constitution contemplated: (1) that Art. XI, Sec. 9, would apply only to property owned by counties, cities and towns, and would operate to exempt the property of these political subdivisions provided it was devoted exclusively to a public use; and (2) that other property publicly owned and used for a public purpose might be exempted by the Legislature under the provisions of Art. VIII, Sec. 2. It has been held, however, that Art. XI, Sec. 9, exempts all public property used for public purposes even though not owned by a county, city or town. Lower Colorado River Authority v. Chemical B. & T. Co., 144 Tex. 326, 190 S.W.2d 48.
. The holding in Lower Colorado River Authority will not be disturbed since it is now firmly embedded in our jurisprudence, but we do not feel compelled by the construction there given one provision of the Constitution to adopt what we regard as an erroneous interpretation of a clause in an entirely different section.

479 S.W.2d at 911, 913.

For our purposes here, however, suffice it to note that the Court in Lower Colorado River Authority referred with approval to Daugherty v. Thompson, 71 Tex. 192, 9 S.W. 99 (1888), where, it was stated, the Court “announced in unmistakable language that the legislature is without power to tax any property publicly owned and held only for public purposes and devoted exclusively to the use and benefit of the public.” (Emphasis added).

Apart, then, from the matter of reconsidering the holding in Lower Colorado River Authority, that the thrust of Article XI, Sec. 9 of the Constitution reaches beyond, “counties, cities and towns” to any governmental agency, it is sufficient for our purposes here that, for the reasons stated in our original opinion, the property in question is not held only for public purposes and is not devoted exclusively to the use and benefit of the public.

The Motions for Rehearing are overruled.

      . The Gulf Coast Waste Disposal Authority is a conservation and reclamation district. See Article XVI, § 59 of the Constitution and Tex. Laws 1969, ch. 409, p. 1336.

      . All references are to Tex.Rev.Civ.Stat.Ann.

      . Italics are added in each instance.

      . The Veteran failed to make the required payments and the Board had declared his rights under the contract forfeited.


author: PER CURIAM.

text:
    Buddy WATEL, Petitioner, v. Victor RICHMAN and wife, Marion Richman, Respondents.
    No. B-7673.
    Supreme Court of Texas.
    Nov. 1, 1978.

      Hoppenstein & Prager, Ronald L. McKinney, Dallas, for petitioner.
    Calvin A. Barker, Jr., Dallas, for respondents.
   PER CURIAM.

This is a summary judgment case. The court of civil appeals correctly reversed and remanded for new trial. 565 S.W.2d 101. There are disputed issues of fact to be tried. Our action should not be interpreted, however, as approving the holding by the court of civil appeals that an express written warranty may not limit or exclude the implied warranties described in Humber v. Morton, 426 S.W.2d 554 (Tex.1968). We express no opinion on that question.

The application for writ of error is refused, no reversible error.


text:
    SUNDANCE OIL COMPANY, Petitioner, v. AZTEC PIPE AND SUPPLY COMPANY, INC., Respondent.
    No. B-7752.
    Supreme Court of Texas.
    Nov. 15, 1978.
    Byrnes, Myers, Adair, Campbell & Sinex, Jay S. Siskind, Houston, for petitioner.
    Sam E. Dunn and S. P. Dunn, Orange, for respondent.
   PER CURIAM.

Sundance Oil Company, the petitioner, brought suit upon a sworn account under Texas Rules of Civil Procedure 185 for certain pipe and equipment it claims it sold to Aztec Pipe and Supply Company, Inc., the respondent. The respondent filed a general denial that normally would not be sufficient under Texas Rules of Civil Procedure 185 to deny the account. The trial court granted petitioner’s motion for summary judgment. The court of civil appeals reversed in Aztec Pipe and Supply Co. v. Sundance Oil Co., 568 S.W.2d 401 (Tex.Civ.App.—Houston [1st Dist.] 1978), reasoning that the respondent was a stranger to the transaction and a sworn denial was not required.

The judgment of the court below is correct because the invoice or “joint interest statement” upon which the petitioner relies contains not only the name of Aztec Pipe and Supply Company, but also the name of another company, Dynamic Exploration, thus raising a fact question as to which company actually is indebted to the petitioner. There being a fact question as to whether the defendant was a party to the transaction evident from the face of the plaintiff’s own invoices, the sworn account is not considered as prima facie proof of the debt. Therefore, a sworn denial is not required in order for the respondent to controvert or disprove the account. Eng v. Wheeler, 302 S.W.2d 70 (Tex.Civ.App.—San Antonio 1957, writ dism’d); and Boysen v. Security Lumber, Inc., 531 S.W.2d 454 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). The petitioner’s application for writ of error must be refused, no reversible error.


text:
    MANN MERCHANDISING, INC., Petitioner, v. Gordon MARTIN, Respondent.
    No. B-7996.
    Supreme Court of Texas.
    Nov. 15, 1978.
    Haynes & Boone, William R. Allensworth, Dallas, for petitioner.
    Shwiff, Caraway & Emerson, Marvin G. Shwiff, Dallas, for respondent.
   PER CURIAM.

The application for writ of error is refused, no reversible error.

Mann Merchandising, Inc., dismissed Gordon Martin from its employ as a regional sales manager. Upon termination, the company paid Mr. Martin $4,571.91 as severance and vacation pay, calculated on the basis of one week’s severance pay for each two years of service. Mr. Martin instituted this suit, alleging that company policy was to calculate severance pay on the basis of one week’s severance pay for each one year of service. The court of civil appeals reversed the summary judgment rendered in favor of Mann Merchandising, Inc., and remanded the cause for trial. 570 S.W.2d 208.

As we understand the opinion of the court of civil appeals, the cause was remanded for trial because a material fact issue existed as to whether Mr. Martin had relied on additional severance pay as a condition to his continued employment. Our disposition of this case indicates neither approval nor disapproval of the alternative holding of the court of civil appeals that employee reliance upon offers of additional compensation should be presumed.


author: DANIEL, Justice.

text:
    Wesley T. DUTTON, Petitioner, v. SOUTHERN PACIFIC TRANSPORTATION, Respondent.
    No. B-7463.
    Supreme Court of Texas.
    Dec. 6, 1978.
    Boccardo, Lull, Niland & Bell, Edward J. Niland and Stanley A. Ibler, Jr., San Jose, Cal., Heber N. Teerlink, San Jose, Cal., R. Edward Pfiester, Jr., Fort Stockton, for petitioner.
    Kemp, Smith, White, Duncan & Hammond, Jack C. Duncan and Wyndham K. White, El Paso, for respondent.
   DANIEL, Justice.

The principal question on this appeal is whether the trial court erred in giving the common law definition of “proximate cause” in a personal injury suit filed pursuant to the Federal Employers’ Liability Act and the Safety Appliance Act. In affirming the trial court, the Court of Civil Appeals held that inclusion of the common law definition of proximate cause along with an F.E.L.A. definition was not erroneous. 561 S.W.2d 892. We disagree and reverse and remand the case to the trial court.

The plaintiff, Wesley T. Dutton, a brakeman for the defendant railroad company, sustained injuries to his right knee while alighting from a boxcar which he was disconnecting from the train because the car had a defective or broken air brake line. The plaintiff was told by the conductor to disconnect and set out the car. In the process, plaintiff boarded the boxcar which had the defective brake system in order to guide its backing movement onto the siding. It was then the rear car, and there were more than a hundred cars between it and the engine. Before the engineer brought the backward movement to a complete stop, plaintiff stepped off the metal stirrup attached to the bottom of the car about 18 inches from the top of the rail. This was to avoid the shock and force of the slack action, and there was evidence that this was a good railroad practice. Plaintiff testified that in alighting from the car he stepped into some slag in a hole or depression on the toepath beside the track, which resulted in a fall and injury to his right knee. It was dark, except for the light from plaintiff’s lantern, and he testified that he did not see the hole or depression. There were no witnesses to plaintiff’s alleged fall, but it is undisputed that the car on which he was riding, and from which he alighted, was being set out on the siding because of its defective air line. Plaintiff subsequently had two knee operations and was wearing a leg brace at the time of trial. His doctor testified that plaintiff would always have pain and never be able to return to work as a brakeman.

The plaintiff brought this suit against the defendant railroad company in the District Court of El Paso County, under the F.E. L.A. and Safety Appliance Act, seeking damages for personal injuries sustained in the course and scope of his employment. The case was tried to a jury which (a) failed to find that the railroad had not provided plaintiff with a reasonably safe place in which to work; (b) found that there was a failure of the train brake system to function efficiently; (c) failed to find that the failure of the brake system was a proximate cause of the injury sustained by plaintiff; (d) failed to find that plaintiff did not use care for his own safety; and (f) found that the sums of $83,174.00 and $16,826.00, respectively, would fairly and reasonably compensate plaintiff for past loss of earnings and physical pain and mental anguish. The trial court rendered judgment for the defendant railroad company. As stated, the Court of Civil Appeals affirmed.

We granted this writ on plaintiff-petitioner Dutton’s contention that the trial court erred in giving the common law definition of “proximate cause” to the jury. The instruction was as follows:

“ ‘PROXIMATE CAUSE’, as that term is used in this charge, means that cause which, in its natural and continuous sequence, unbroken by any new independent cause, produces an injury, and without which cause, the injury would not have occurred, and which injury, or some similar injury, would have been reasonably foreseen by a person of ordinary care in the light of the attending circumstances. There may be more than one proximate cause of an injury.
“In this connection, you are further instructed that by ‘PROXIMATE CAUSE’ means a cause which plays any part in actually bringing about or causing the injury.”

Plaintiff objected to this instruction because of the common law definition quoted in the first paragraph above and because of the court’s annexation of a modification of plaintiff’s own requested definition in the second paragraph of the instruction. Plaintiff had requested only the following causation instruction:

“‘PROXIMATE CAUSE’ means a cause which played any part, no matter how small, in actually bringing about or causing the injury.”

Although federal law governs substantive rights of the parties in F.E.L.A. cases, when such cases are filed in our state courts they are tried in accordance with our own applicable Rules of Civil Procedure. Scott v. Atchison, Topeka and Santa Fe Railway Company, 572 S.W.2d 273 (Tex.1978); Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868 (Tex.1973). In Scott, supra, we recognized that rules relating to the form, necessity, and effect of jury issues are procedural rather than substantive if they do not interfere with a right or defense provided by the F.E.L.A. The latter conditional phrase is important, because, as stated in Scott, we agreed with the basic premise that substantive rights governed by the F.E.L.A. cannot be interfered with, lessened or destroyed by a state rule of practice or procedure. See Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889 (1957); Rogers v. Missouri Pacific R. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Brown v. Western Railway of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (1949); Texas & Pac. Ry. Co. v. Younger, 262 S.W.2d 557 (Tex.Civ.App.1953, writ ref’d n. r. e.); 79 A.L.R.2d 553, 559.

In cases of this nature the federal law gives the plaintiff and other railroad workers the right to have causation of their injuries determined by the simple test of whether they resulted “in whole or in part” from the railroad’s negligence or violation of a safety statute. This is entirely different and much less burdensome than the usual proximate cause test which is applied in common law negligence cases. In Rogers v. Missouri Pacific Railroad Co., supra, the Supreme Court of the United States traced the history and purpose of the F.E.L.A. and concluded:

“The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence. The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit. . . . ”

The F.E.L.A., 45 U.S.C.A. § 51, provides:

“Every common carrier by railroad while engaging in [interstate] commerce . shall be liable in damages to any person suffering injury while employed by such carrier in such commerce . for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances . or other equipment.” (Emphasis supplied.)

Under the last clause above quoted, the Supreme Court of the United States has held that a violation of the Safety Appliance Act or the Boiler Inspection Act which contributes in whole or in part to the injury of a railroad employee creates liability without regard to negligence. Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958); Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236 (1949); O’Donnell v. Elgin, Joliet & Eastern Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949). In Carter, supra, the Court referred to a violation of the Safety Appliance Act as “a violation of absolute duty”, adding:

. . Once the violation is established, only causal relation is in issue. And Congress has directed liability if the injury resulted ‘in whole or in part ’ from defendant’s negligence or its violation of the Safety Appliance Act.” Id. 434, 70 S.Ct. 229. (Emphasis supplied.)

It has been held that where a railroad employee was injured while trying to cope with a problem created by defective equipment used in violation of the Safety Appliance Act, a jury could find causation even though the defect was not the direct or immediate cause of the injury. Minneapolis, St. Paul & Sault Ste. Marie Railway Company v. Goneau, 269 U.S. 406, 46 S.Ct. 129, 70 L.Ed. 335 (1926) (a case in which a trainman lost his balance and fell from a bridge while trying to replace a defective drawbar); Chicago, Great Western Railroad Company v. Schendel, 267 U.S. 287, 45 S.Ct. 303, 69 L.Ed. 614 (1925) (where a brakeman was injured while engaged in cutting out a car with a defective drawbar); New York, New Haven & Hartford R. Co. v. Leary, 204 F.2d 461 (1st Cir. 1953), cert. denied 346 U.S. 856, 74 S.Ct. 71, 98 L.Ed. 370 (1953) (where conductor fell off a trestle while en route to help fix a defective air hose).

In the instant case a violation of the Safety Appliance Act was found by the jury in its answer that the train brake system had failed to function efficiently. However, in applying the test of “proximate cause” as defined by the trial court, the jury found no causal relationship between that violation and plaintiff’s injury. According to the federal cases cited above, the evidence would have supported a finding that the violation did play a part in bringing about plaintiff’s injury. Had it not been for the defective air brake on the boxcar, there would have been no occasion for plaintiff to disconnect that car and sustain the fall as he alighted from the car. True, the part played by the defective brake system might have been too slight, remote and unforeseeable to have supported a finding that it was a common law proximate cause in a common law negligence case. That is why the more burdensome common law definition should have been omitted from the instructions. Causation under the F.E.L.A. does not place a burden on the plaintiff to show foreseeability or cause in fact “unbroken by any new independent cause,” or any other confusing elements of the common law definition.

The error was not cured by adding “[I]n this connection” a further instruction that proximate cause “means a cause which plays any part in actually bringing about or causing the injury.” This is because the two definitions are mutually inconsistent. Considered together, they did not properly express the substantive law applicable to the case. By connecting or annexing an F.E.L.A. definition to the preceding common law definition, the jury was instructed in substance that proximate cause meant a common law proximate cause which played any part in causing the injury. At least the jury could have believed that in order to find an affirmative answer on the issue of causation it had to find a common law proximate cause which played a part in producing the injury.

While proof of actual or probable jury confusion over the instruction is unnecessary to our holding, such proof happens to be contained in this record. The plaintiff sought a new trial because of jury misconduct in referring to a pocket dictionary for the meaning of “proximate” or “proximate cause” during their deliberations. Ten jurors testified that there was confusion in the jury room as to the meaning of this instruction and that the dictionary was referred to before the foreman admonished them to be governed only by the definition contained in the charge. The trial court found that the use of the dictionary was misconduct, but he concluded that it was not material and that from the whole record it did not reasonably appear that injury probably resulted to the plaintiff because of such misconduct.

The Supreme Court has held that common law “proximate cause" is not a proper test of the evidence in F.E.L.A. cases. Rogers v. Missouri Pacific Railroad Co., supra, and Coray v. Southern Pacific Co., 335 U.S. 520, 69 S.Ct. 275, 93 L.Ed. 208 (1949). Its submission as an instruction to the jury in cases governed by the statutory provisions of the F.E.L.A. has been held to be reversible error in Hausrath v. New York Central Railroad Co., 401 F.2d 634 (6th Cir. 1968); Page v. St. Louis Southwestern Railway Co., 312 F.2d 84 (5th Cir. 1963); DeLima v. Trinidad Corporation, 302 F.2d 585 (2nd Cir. 1962); Collins v. Mercury S. S. Co., Inc., 549 S.W.2d 213 (Tex.Civ.App.1977, no writ); McCalley v. Seaboard Coast Line Railroad Co., 265 So.2d 11 (Fla.1972); Parker v. Atchison, Topeka and Santa Fe Railway Co., 263 Cal.App.2d 675, 70 Cal.Rptr. 8 (1968). These cases hold that submission of the causation instruction or issue should follow the statutory phrase “in whole or in part,” and most of them approve a paraphrase of the language in the Rogers case, supra, in the words of the instruction requested by plaintiff in this case: . . a cause which .played any part, no matter how small, in actually bringing about or causing the injury.”

Other cases which have approved the instruction substantially as requested by the plaintiff in this case are Pehowic v. Erie Lackawanna Railroad Co., 430 F.2d 697 (3d Cir. 1970); Waller v. Southern Pacific Co., 66 Cal.2d 201, 57 Cal.Rptr. 353, 424 P.2d 937 (1967); Blyzes v. Midwest Towing Co., 109 Ill.App.2d 48, 248 N.E.2d 305 (1969). See also Continental Oil Company v. Lindley, 382 S.W.2d 296 (Tex.Civ.App.1964, writ ref’d n. r. e.), in which the negligence issues in a Jones Act case, tried as provided by law under F.E.L.A. standards, simply inquired whether defendant’s negligence, if any, “played any part, even the slightest, in producing plaintiff’s injuries.” No independent instruction was given in connection with the issue. The Court of Civil Appeals held that use of the words “even in the slightest” would be an improper comment under our state practice, and in any event unnecessary because the words “played any part” encompass the slightest part. However, the Court cited and followed the opinions of the Supreme Court of the United States and other federal decisions in concluding that the wording of the issue in F.E.L.A. and Jones Act cases was not erroneous. Cf. Bertrand v. Southern Pacific Co., 282 F.2d 569 (9th Cir. 1960) cert. denied 356 U.S. 816, 81 S.Ct. 697, 5 L.Ed.2d 694 (1961).

The railroad company and the Court of Civil Appeals cite only Tyree v. New York Central Railroad Co., 382 F.2d 524 (6th Cir. 1967) cert. denied 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967), as holding that the error of submitting a common law definition of “proximate cause” may be cured by also instructing the jury in the terms of the statute. However, in Tyree the trial court did not emphasize the common law definition, and its charge instructed the jury at least five times that the defendant railroad was liable if plaintiff’s injuries were caused in whole or in part by the negligence of the defendant. Consequently, the Circuit Court held that under such circumstances the inclusion of the common law instruction, although not in accord with the otherwise fully explained F.E.L.A. standard of causation, was not reversible error. At the same time, the court said:

“. . .it would be better in Federal Employer’s Liability act cases if no mention of proximate cause whatever was made to the jury and, following the views of the Supreme Court as expressed in Rogers v. Missouri Pacific R. Co., supra, that the jury be instructed on the subject of causation to the effect that if employer negligence played any part, even the slightest, in producing the injury, the employer is liable in damages

As indicated, we hold that the instruction containing the common law definition of proximate cause in this F.E.L.A. case placed a greater burden upon plaintiff than the federal law permits. The error amounted to a denial of plaintiff’s right to a causation test prescribed by substantive law in the F.E.L.A., and it was harmful because it reasonably could and probably did cause the rendition of an improper judgment.

Accordingly, the judgments of the courts below are reversed and the cause is remanded to the trial court.

      . The Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq., hereinafter referred to as the F.E.L.A., and the Safety Appliance Act, 45 U.S. C.A. § 1 et seq. We will refer principally to the F.E.L.A., since it is the statute under which suits are brought when based upon alleged violations of the Safety Appliance Act.