Opinion
No. 15070
11-7-1952
GUDELJ v. GUDELJ. *
Leo R. Friedman, San Francisco, for appellant. Jefferson E. Peyser, San Francisco, for respondent.
GUDELJ
v.
GUDELJ.
Nov. 7, 1952.
As Amended on Denial of Rehearing Dec. 6, 1952.
Hearing Granted Jan. 5, 1953.
Leo R. Friedman, San Francisco, for appellant.
Jefferson E. Peyser, San Francisco, for respondent.
BRAY, Justice.
Plaintiff was granted an interlocutory judgment of divorce on the ground of extreme cruelty, awarding her custody of the minor child of the parties, certain support for herself and child, and disposing of the claimed separate property of the husband and community property of the parties. Plaintiff appeals from certain portions of said judgment hereafter set forth.
Main Questions Presented.
1. The correctness of the awards of support for plaintiff and the child, and the restrictions on its removal. 2. Sufficiency of the evidence to support the findings as to the character of the properties and their disposition. 3. The legal question of whether evidence of the husband's undisclosed intention is admissible to overcome the presumption concerning property purchased by his separate funds but placed by his direction in joint tenancy. 4. Effect of provisions immediately disposing of property. 5. Has plaintiff waived her right of appeal?
Record.
Plaintiff sued for separate maintenance, alleging grounds for divorce of extreme cruelty. Defendant cross-complained for a divorce on similar grounds. Later plaintiff amended her complaint to ask for a divorce. The court found for plaintiff on her charges of cruelty, against defendant on his, and awarded plaintiff custody of the child, giving defendant certain rights of visitation and limited temporary custody. Neither side complains of this action of the court. The findings and the portions of the decree which are attacked and the evidence concerning them respectively will be discussed seriatim.
1. (a) Removal of The Child.
The interlocutory decree prohibited plaintiff from removing the child from the city and county of San Francisco (where both parties reside) for any single period in excess of five days other than once a year when plaintiff may remove said child for a single continuous period of not to exceed three weeks. Defendant testified that plaintiff had threatened to take the child out of the city and out of the state and change his name. The decree provides that defendant may visit the child at all reasonable times and be entitled to have him at least one day in each week from 8 a. m. to 9 p. m. The court has great discretion in dealing with the custody of children in divorce actions. Browning v. Browning, 111 Cal.App. 99, 295 P. 360. The mother is permitted to take the child from the city for periods of five days at a time, and three weeks once a year. In view of the father's right to visit often and to have the child once a week, we cannot say the court acted arbitrarily or unreasonably in requiring that it remain where it will be readily accessible to its father. In the event, as suggested by plaintiff's counsel, it becomes necessary for the mother to establish her home in a nearby area, such as down the Peninsula, in Marin County, or elsewhere, we have no doubt that the trial court on application would sympathetically entertain a motion to modify the order.
1. (b) Support.
The court awarded plaintiff $100 per month for her own support, limited to 24 months, and $50 per month for the support of the child. Plaintiff contends these awards constituted an abuse of discretion. The child at the time of trial was approximately 4 years old. The allowance of only $50 per month for support of a child by a father with a net income from the business of in excess of $5900 per year, plus an additional income from his separate property, seems inadequate. In view, however, of the fact that, in effect, the mother has not been required to pay rental for the abode of herself and child, we cannot say that the court abused its discretion. The child is now of school age. Undoubtedly, upon application, the court will sympathetically review the support question as to the child's present needs and the father's income.
Plaintiff was awarded most of the household furnishings, two bank accounts, the amounts of which do not appear in evidence, and the insurance business which nets her about $700 per year. Apparently plaintiff is physically sound. In April, 1947, when she quit working as a bookkeeper she was earning $300 per month. The award of $100 per month for two years will in some measure give her an opportunity to get readjusted. While the award is not on the generous side, we cannot say that under the circumstances here it constituted an abuse of discretion. Particularly is this so, now that plaintiff in the final decree will receive a substantial amount from the business.
2. The Helene French Cleaners.
The court found that defendant owned as his separate property a one-fourth interest in the business known as 'Helene French Cleaners,' that its purchase price was $11,500, the down payment of $1500 having come from defendant's separate funds; that defendant received as compensation for and reasonable value of his services $3600 per year, and that his one-fourth interest yielded a net return of $4000 which is a reasonable return on his investment of $11,500; that this return of $4000 was applied upon the purchase price of the one-fourth interest in the business; that no other moneys, community or separate, have been paid upon the purchase price. The court then set aside this business and all bank accounts belonging to it to defendant.
To ascertain the correctness of this determination, it is necessary to review the financial history of the parties. At the time of the marriage in 1938 plaintiff was working and continued to do so until April 15, 1947, shortly before the birth of the child. She earned from $280 to $300 per month. During the operation of the Owl Cleaners, hereafter mentioned, she kept its books and later helped in the Helene Cleaners for one month. About two years prior to the trial she established an insurance business netting her about $700 per year. Defendant, in 1938, operated the Pacific Avenue Cleaners. In 1943 he closed out the business and went into the service. Defendant claims that he derived $800 from the sale of its equipment which sum he kept in a joint account of himself and his mother.
Prior to 1938 defendant inherited from his father a half interest in two flats, a store and a cottage with three garages, on Pacific Avenue. His mother owned the other half. His mother occupied one flat, and for a few months early in their marriage the parties lived rent free in the cottage. They then moved into the flat with the mother. The property was subject to a mortgage, payable $50 per month plus interest. The fixed charges for the Pacific Avenue property were paid from its income plus a monthly allotment made by defendant to his mother while in the service. In September, 1947, defendant and his mother sold the property for $38,000. After payment of the mortgage and expenses, the net was $30,690.60, giving them $7,690.60 cash and a note secured by deed of trust for $23,000. In 1946, on returning from the service, defendant went into partnership with one Grinton. The purchased the Owl Cleaners for $4500. Plaintiff contributed $1500 towards the purchase price. $800 of this was from the sale of the Pacific Avenue Cleaners equipment, and the balance he borrowed from the joint account of himself and mother, giving her orally 'one-half of the assets.' Defendant never paid back this $700 nor did he account to his mother for any profits. In 1946 he drew $2000, in 1947 $3700, as salary, all of which except $10 or $15 per week was turned over to plaintiff for household expenses. Due to landlord trouble the Owl Cleaners was closed down in 1947. They 'took a loss of about $3000 on equipment, furniture, etc. that we had to give it to the junk man.' Just how much was salvaged from this business does not appear. The two partners then purchased into the Helene Cleaners. Defendant was to receive a one-fourth interest for $11,500. He paid $1500 cash which came from the Owl Cleaners and gave one Majoulet (from whom he purchased his interest) a note for $10,000, on which there is still due $6,000. In 1947 there was a net loss in the operation of the Helene Cleaners. Plaintiff and defendant lived on the few hundred dollars accounts receivable from the Owl Cleaners. In 1948 the business made a profit of around $27,000, or roughly $6500 per partner gross. Defendant drew $75 per week or $3900 for the year, and about $2000 was paid on the principal of the Majoulet note. In 1949 defendant also drew $75 per week. The gross profit of the business was $37,000, or roughly $9000 per partner. Net to defendant, in addition to his drawing $3900, was about $2000 which was paid on the Majoulet note. The trial was had in May, 1950.
It is true that there is some confusion between defendant's testimony that he and his partner took a loss of $3000 upon the Owl Cleaners equipment and his statement that the $1500 down payment on the Helene Cleaners came from the liquidation of the Owl. While there is evidence from which the court could have found that the $1500 did not come from the Owl Cleaners, or if it did that it was community property, the evidence does not compel such finding and hence we are bound by the court's finding in that respect. The court's findings that the $1500 down payment on the Helene Cleaners came from defendant's separate funds, and that $4000 paid on the balance of the purchase price came from earnings of that business, are supported. This brings us to the question of whether the conclusion is justified that defendant's share of the earnings of the business should be credited, as between plaintiff and defendant, $3600 (actually he received $3900) per year to services and $2000 per year to earnings on his original investment of $1500. The return on defendant's services of course are community earnings. There is no evidence that the acceptance by Majoulet of the $10,000 note was because of the fact that defendant owned valuable separate property. In Hogevoll v. Hogevoll, 59 Cal.App.2d 188, 138 P.2d 693, the money used by the wife in purchasing certain real property taken in her name alone was secured from her half-brother who had assisted her financially many times in the past. The court stated 59 Cal.App.2d at page 197, 138 P.2d at page 698: '* * * it is a reasonable inference that the loan was made solely on the personal credit of the wife.' There is a presumption that moneys borrowed during the marriage become community property. Hogevoll v. Hogevoll, supra, 59 Cal.App.2d 188, 138 P.2d 693. The test is whether the credit is advanced upon personal credit or upon credit of the community property. Vandervort v. Godfrey, 58 Cal.App. 578, 208 P. 1017. Here the evidence fails to disclose upon what credit the loan was made, differing from the situation in the Hogevoll case, supra. Even though the Pacific Avenue property had recently been sold, there is no evidence to show that Majoulet knew of this fact. It is more reasonable to assume, in the absence of evidence on the subject, that it was made on defendant's earning ability and experience and knowledge of the type of business, as that it was made on the credit of defendant's separate property. Moreover, to infer that Majoulet extended the credit because of defendant's separate property is to assume without evidence that Majoulet knew of that property. Defendant had the burden of overcoming the presumption. He made no effort to produce evidence on the subject. Hence the presumption prevails. 'The burden is upon the one who controverts the presumption to prove his claim regarding the character of property acquired during the marriage. Unless that contention is supported by satisfactory proof, the trial court is bound to decide the controversy in accordance with the presumption.' Falk v. Falk, 48 Cal.App.2d 762, 767, 120 P.2d 714, 717. The court made no direct finding as to whether the credit was extended to defendant because of his separate property. Indirectly it so found because it stated that the $4000 applied by defendant on the loan 'was and is a reasonable return for said period on defendant's investment of $11,500.00 in said business.' Such finding is erroneous. It is obvious that in this type of business the capital which defendant placed in the business is not as important as the 'personal activity, ability, and capacity of the husband'. Estate of Gold, 170 Cal. 621, 623, 151 P. 12, 13. The situation here is similar to that where the husband's business is one he had before marriage. 'It is settled by numerous decisions in this state that even though the husband's business has been carried on by him before marriage, and his profits after marriage are derived from the same business or from the investment and reinvestment of funds which he held at the time of the marriage, yet the entire profits so realized are not necessarily separate property of the husband. The capital which the husband brings to the marriage partnership is his own separate property, but it is a question for the court to determine what portion of the profits thereafter arises from the use of this capital and what part arises from the activity and personal ability of the husband. That portion of the income due to the 'personal character, energy, ability and capacity of the husband' is community property.' Witaschek v. Witaschek, 56 Cal.App.2d 277, 281, 132 P.2d 600, 603. On return of the case the trial court will have to 'apportion to the community such share of the husband's earnings as was due to the latter's industry and skill * * *.' Witaschek v. Witaschek, supra, 56 Cal.App.2d at page 282, 132 P.2d at page 603. This will necessarily apply to earnings to date. Also the court will to determine the present value of the community interest in the business. Further evidence, if available, may be introduced by either party on the retrial of this issue. The court will have to consider the community earnings and the present value of the community interest in this business in redetermining all of the community property of the parties and awarding plaintiff more than one-half thereof, effective on entry of the final decree.
The court found that $3600 per year was and is the reasonable value of defendant's services. But this finding is erroneous, for two reasons: (1) The court allowed what would be an excessive return on the $1500 investment. (2) It is difficult to determine on what evidence the court made this finding. Apparently it was based on the wage paid 'benzine men' which was about $3380 a year. Certainly the services of an active, experienced working partner were worth more than $220 per year more than the sums paid benzine men.
3. The Home.
Can defendant's undisclosed intent overcome the joint tenancy?
The court found that of the $3000 down payment on the home (the property at 1806 15th Avenue), which was purchased after marriage, $500 was paid from community funds, the balance and all subsequent payments from defendant's separate funds; that the title thereto was taken in joint tenancy but that defendant did not intend to make a gift of any present interest therein to plaintiff; that five-sixths is the separate property of defendant and one-sixth that of plaintiff. The decree awarded plaintiff a lien on the property for $2,375 in lieu of her one-sixth interest. While there is some uncertainty in the evidence as to whether all the subsequent payments on the home were made from defendant's separate moneys, there is sufficient evidence to support the court's finding that of the entire purchase price all but $500 came from that source. The real question is the effect of the joint tenancy deed. Plaintiff testified that she and defendant discussed how the title to the property was to be taken and 'he told me it was going to be taken in both our names and that was the reason for me having to go down [to the title company at the time of the purchase] to sign the paper.' Defendant testified that the joint tenancy deed was not made out at his instruction and that he had nothing to do with its preparation. It was prepared by the bank clerk. He testified he did not know and was not told the legal effect of such a deed. However, he stated that he left the matter to the title company who pointed out 'about the survivorship, in case I passed away of Mrs. Gudelj passed away, that it would be easier to qualify for inheritance purposes * * * it was discussed how I wanted it worded, about the survivorship, that was all. Just like when you open a bank account, they ask you whether you want either or survivorship.' Over objection defendant was permitted to state that at no time did he intend to convey to plaintiff any present interest in the property. Defendant did not claim that he ever disclosed his intention to plaintiff. (In her complaint plaintiff claimed the home to be community property.) The evidence, then, discloses that defendant knew that the deed he was obtaining was a joint tenancy one and that at least it provided some sort of survivorship.
While generally the rules affecting joint tenancy deeds obtained by one or both spouses are well settled, there has been considerable confusion in the cases as to whether the undisclosed intention of the spouse obtaining the deed alone can overcome the presumption attaching to such a deed. The following quotations from DeBoer v. DeBoer, 111 Cal.App.2d 500, 504, 244 P.2d 953, 956, succinctly sum up the first mentioned rules. 'When title is in the wife alone the presumption is that the property is her separate property. Civ.Code, § 164. Except as against a bona fide purchaser for value, the presumption is disputable. [Citation.] Whether the evidence against the presumption is sufficient to overthrow it, is a question of fact. [Citation.] * * * The court may consider the motive for the conveyance of property by a husband to his wife and the situation of the parties at the time. [Citation.] A determination by a trial court that the presumption has been rebutted is conclusive on a reviewing court unless it is manifestly without support in the evidence. [Citation.] * * * In determining whether property is community or separate property of the spouses, a trial judge is not bound by the form of the deed alone. [Citation.]'
Another well settled rule is that evidence as to the source of the funds used to purchase the property standing alone is not sufficient to rebut the presumption. Cash v. Cash, 110 Cal.App.2d 534, 243 P.2d 115; Barba v. Barba, 103 Cal.App.2d 395, 229 P.2d 465; Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905.
The DeBoer case states the rule as to which the cases are not in agreement: 'In determining whether the transfer of separate property of the husband or of community property to the wife constituted a gift to the wife and changed the status of the property to that of separate property of the wife, the intention of the husband is 'the all-important and controlling question.' * * * Where title is taken in the name of the wife the testimony of the husband that he did not intend to make a gift of his separate property or of his interest in the community property, if believed by the court, is sufficient to overcome the presumption that the property is the separate property of the wife.' 111 Cal.App.2d at page 505, 244 P.2d at page 956. Supporting this statement the following cases are cited: Horsman v. Maden, 48 Cal.App.2d 635, 640-641, 120 P.2d 92; Estate of Baer, 81 Cal.App.2d 830, 835, 185 P.2d 412; Nilson v. Sarment, 153 Cal. 524, 528-529, 96 P. 315; Fanning v. Green, 156 Cal. 279, 285, 104 P. 308; Whitaker v. Whitaker, 137 Cal.App. 396, 399, 30 P.2d 538; Stephenson v. Brand, 122 Cal.App. 543, 545, 10 P.2d 476.
In Huber v. Huber, 27 Cal.2d 784, 167 P.2d 708, where joint tenancy property was purchased with separate funds of the husband, the husband was asked if by the joint tenancy he intended any interest in the property to vest in the wife during his lifetime. In holding that the question was proper the court said, 27 Cal.2d at page 789, 167 P.2d at page 711: 'Plaintiff argues, however, that the undisclosed and secret intention of the husband not to make a gift to his wife cannot be established by parol evidence, citing Shaver v. Canfield, 21 Cal.App.2d 734, 70 P.2d 507, and Watson v. Peyton, 10 Cal.2d 156, 73 P.2d 906, but as indicated by the foregoing quotation from the record, defendant advised plaintiff of his intention as to the first parcel of real property and it may be inferred that the placing of the other parcels in joint tenancy was done under like circumstances.' Thus it appears that the plaintiff's intention in that case was not undisclosed as is the situation here.
On the other hand, in Watson v. Peyton, 10 Cal.2d 156, 73 P.2d 906, it was held that where a wife had joined with her husband in requesting that the title to property purchased with community funds be placed in joint tenancy, evidence of her secret and undisclosed intention that the property remain community property was inadmissible.
With this apparent conflict in the authorities we come to the latest opinion of the Supreme Court on the subject, Socol v. King, 36 Cal.2d 342, 223 P.2d 627. There the wife purchased certain real and personal property in the joint names of herself and husband with funds which were partly joint funds and partly her separate funds. 'The findings establish that decedent believed that she had a one-half interest in the property in question which would descend to her children, but that there was no understanding between the parties that they held it other than as joint tenants.' 36 Cal.2d at page 346, 223 P.2d at page 629. After referring to Huber v. Huber, 27 Cal.2d 784, 167 P.2d 708, Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905, Horsman v. Maden, 48 Cal.App.2d 635, 120 P.2d 92, and Fanning v. Green, 156 Cal. 279, 104 P. 308, all supra, on other phases of the rules applicable to joint tenancies between spouses, the court said, 36 Cal.2d at page 346, 223 P.2d at page 629: 'When there is an oral or written agreement as to the ownership of the property, LaMar v. LaMar, supra [30 Cal.2d 898, 186 P.2d 678]; Sears v. Rule, 27 Cal.2d 131, 163 P.2d 443; Estate of Watkins, 16 Cal.2d 793, 795, 108 P.2d 417, 109 P.2d 1; Kenney v. Kenney, 220 Cal. 134, 30 P.2d 398; Rogers v. Rogers, supra [86 Cal.App.2d 817, 195 P.2d 890]; Tompkins v. Tompkins, supra [83 Cal.App.2d 71, 187 P.2d 840]; Wood v. Wood, supra [81 Cal.App.2d 727, 185 P.2d 53]; Cummins v. Cummins, 7 Cal.App.2d 294, 46 P.2d 284, or where such an understanding may be inferred from the conduct and declarations of the spouses, Huber v. Huber, supra; Tomaier v. Tomaier, supra; Trimble v. Trimble, 219 Cal. 340, 26 P.2d 477; Hibernia Sav. & Loan Soc. v. DeRyana, 210 Cal. 532, 292 P. 632; Salveter v. Salveter, 206 Cal. 657, 275 P. 801; Estate of Kelpsch, 203 Cal. 613, 265 P. 214; Hammond v. McCollough, 159 Cal. 639, 115 P. 216; Fanning v. Green, 156 Cal. 279, 104 P. 308; Title Insurance & Trust Co. v. Ingersoll, 153 Cal. 1, 94 P. 94; Perdicalis v. Perdicalis, supra [92 Cal.App.2d 274, 206 P.2d 650]; Bassi v. Bassi, supra [89 Cal.App.2d 886, 202 P.2d 96]; Luminoso v. Luminoso, 75 Cal.App.2d 472, 171 P.2d 516; Estate of Wilson, 64 Cal.App.2d 123, 148 P.2d 390; Horsman v. Maden, 48 Cal.App.2d 635, 120 P.2d 92, it is true that the terms of the deed are not controlling. But where such circumstances do not exist, a true joint tenancy is created by a conveyance to husband and wife in that form, although the property is purchased with community funds [citations], or with the separate funds of the husband [citations]. When property is purchased with community funds and title is taken in joint tenancy at the request of the wife, the secret intention of the wife that the property shall remain a part of the community is not effective. 'She cannot defeat her act by testimony of a hidden intention not disclosed to the other party at the time of the execution of the document.' Watson v. Peyton, 10 Cal.2d 156, 73 P.2d 906, 907. The same rule should be applied where joint funds are used to buy the property. It follows that the trial court properly held that decedent's secret belief as to the legal result of procuring title to the California property in joint tenancy could not affect its actual status.'
Thus it appears that in this case the Supreme Court has finally settled the conflict and reaffirmed the doctrine of Watson v. Peyton. It directly quoted from that case in support of its holding that the secret intention is not effective. It is significant, too, that in our case defendant claimed to have a mistaken belief, or a lack of knowledge of the legal result of procuring title in joint tenancy. In the Socol case it was held that such belief could not affect the actual status of the title. In the above excerpts from its opinion the court in effect characterized the Huber, Tomaier, Fanning and Horsman cases (all of which were cited in DeBoer v. DeBoer, supra, 111 Cal.App.2d at page 505, 244 P.2d at page 956, as foundation for its opinion that undisclosed intention controlled) as support for the statement 'where such an understanding may be inferred from the conduct and declarations of the spouses * * *.' 36 Cal.2d at page 346, 223 P.2d at page 630. Note that 'spouses' is plural. In our case there was no evidence whatever of any such understanding. Defendant did not claim there was such understanding, and plaintiff's testimony was that there was none such. The rule that in order to overcome the presumption raised by the form of the deed there must be an intention or understanding of the parties, rather than of one party, makes sense. To permit a spouse to testify in effect that while he procured a joint tenancy deed, he did so with the secret intention that it really was not to be such, and thereby avoid the effect of the deed, makes the presumption of no value whatever. There being here no evidence of any intention or understanding of the parties that the property should not vest in joint tenancy, the ruling of the court thereon was erroneous. As the plaintiff has a joint tenancy interest in the home, the provisions in the decree giving her a one-sixth interest in it, limiting her occupancy of it and fixing a penalty for her failure to surrender possession, fall.
4. Effect of immediate provisions of interlocutory decree.
It is contended that because the interlocutory decree attempts to make immediate disposition of the property of the parties, that decree is void. It is well established that the interlocutory decree may not make the division of the community property immediately effective. Wilson v. Wilson, 76 Cal.App.2d 119, 172 P.2d 568. 'Immediately effective division of the community property in the interlocutory decree was erroneous but is correctible by modification of the decree to provide for such disposition upon entry of the final decree. Slavich v. Slavich, 108 Cal.App.2d 451, 457, 239 P.2d 100; Wilson v. Wilson, 76 Cal.App.2d 119, 129-133, 172 P.2d 568.' Dowd v. Dowd, 111 Cal.App.2d 760, 245 P.2d 339, 342, italics not added. We can find no authority for the proposition that in respect to the lack of immediate effect of the interlocutory decree there is any difference between the determination of community and separate property. Certainly the determination by the trial court in the interlocutory decree of separate property is subject to the right of appeal, and such determination, like any other judgment, cannot be effective until the appeal is determined. Moreover, if there should be a reconciliation of the parties during the period before entry of the final decree (one of the purposes of our law making divorces effective only upon entry of the final decree) the entire interlocutory decree would fall.
5. Has plaintiff waived right of appeal?
Defendant contends that plaintiff has accepted the benefits of the interlocutory decree and hence waived her right of appeal, because (1) she has remained in the home over the 60 day period (all but two weeks of which had expired before the filing of the findings and interlocutory decree), and by so remaining, she in effect is accepting payment of the $2,375 awarded her in the monthly payments made by defendant on the mortgage; and (2) the decree awarded plaintiff the household furniture, furnishings and effects in the home, excepting the dining and living room rugs and one chair awarded defendant, even though the court found that they were 23/25ths defendant's separate property and only 2/25ths community property. Defendant has not appealed from this award, but contends that by remaining in the home and using this property plaintiff is accepting the fruits of the decree.
The award to plaintiff of the furniture and the determination of the chracter of the home do not become effective until the entry of the final decree. Hence, plaintiff has not accepted anything under the interlocutory decree. She has the right to keep matters in statu quo until the entry of the final decree.
Plaintiff is not appealing from other awards made defendant, so they have not been discussed in this opinion.
Those portions of the interlocutory judgment awarding defendant the home, limiting plaintiff's occupancy of it, and fixing a penalty, awarding all of the business known as 'Helene French Cleaners' and all bank accounts belonging to it, and requiring defendant to pay installments on the mortgage, are reversed with instructions to the trial court to proceed as hereinbefore stated, to find that the home is held in joint tenancy, to determine the community share of the Helene Cleaners and make suitable award thereof to plaintiff, and to modify the interlocutory decree to make the awards of community and separate property effective only upon entry of the final decree. In all other respects the decree is affirmed. Defendant will pay costs.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Subsequent opinion 259 P.2d 656. 1 All italics added, unless otherwise noted.