author: PRESLAR, Justice.

text:
    John A. BYERLY, Trustee et al., Appellants and Appellees, v. Harry M. NIELSEN et al., Appellees and Appellants.
    No. 5847.
    Court of Civil Appeals of Texas. El Paso.
    July 26, 1967.
    Rehearing Denied Sept. 6, 1967.

      Locke, Purne, Boren, Laney & Neely, Larry M. Lesh, Harold B. Pressley, Dallas, for appellants.
    Stubbeman, McRae, Sealy & Laughlin, Hamilton E. McRae, F. H. Pannill, Midland, for appellees.
   OPINION

PRESLAR, Justice.

Harry M. Nielsen, North Central Oil Corporation, S. P. Johnson, Jr., Mrs. Constance E. Byers, Robert E. Byers, Ronald J. Byers, and J. M. Salas filed this suit in trespass to try title against John A. Byerly, Trustee of the Estate of J. W. Grant, to recover title to an undivided ⅜2 of the usual ⅛ non-participating royalty in Sections 5 and 13, Block 45, Township 1 North, T. & P. Ry. Co. Survey, Ector County, Texas. Plaintiffs also included a count for declaratory judgment.

Trial was to the court without a jury, resulting in judgment for title and possession in favor of Nielsen and North Central Oil corporation for ⅜4 of the ⅛ royalty, title and possession of ⅜4 of the ⅜ royalty to John A. Byerly, Trustee, and a “take-nothing” judgment as to the other plaintiffs above named. All parties appeal. We affirm.

J. W. Grant, at the time of his death in 1932, was the record owner in Ector County of ¾6 of the ⅛ royalty, but in 1941 a deed, dated 1927, from him to one B. H. Gibson conveying a ½2 interest, was placed of record. The plaintiffs each acquired and placed of record their interests after the death of J. W. Grant and prior to 1941. They hold title under J. W. Grant’s widow, Hattie Grant.

J. W. Grant devised his estate in trust, naming John A. Byerly as Trustee. He died a resident of Pennsylvania, but an ancillary administration was had in Tarrant County, Texas, in which his widow Hattie Grant, elected to take against the will and receive her ½ of the community estate. By the probate proceedings in Tarrant County it was determined, that .she receive a ⅛2 of the royalty here involved and the Trustee receive a like ⅜2. A partition suit in the District Court of Tarrant County, followed by a partition deed, also divided the royalty ⅛2 to Hattie and ½2 to the trustee, Byerly. Byerly has never conveyed, but Hattie conveyed a ⅜4, which at the time of trial, was owned by plaintiffs Nielsen and North Central Oil; and subsequent to that conveyance, she conveyed another ⅜4, which at the time of trial was owned by the other plaintiffs — those who took nothing by the judgment.

Thus the combined interests of the plaintiffs amounted to ⅜2 (acquired from Hattie) and the interest of the defendant Byerly was ⅛2, until the 1941 recording of the deed to Gibson. Gibson is not a party to this suit. The parties hereto have not seen fit to place his ⅜2 interest in issue, and it must therefore be subtracted from the ½6 owned by Grant at the time of his death, so far as this suit is concerned. This leaves only ⅜2 to meet the claims of plaintiffs for ⅜2 and the claim of the defendant for ⅜2.

The record in this case consists of rather brief testimony by Byerly, plus the instruments (with their recording data) relied on by the parties to substantiate their claims of title. The judgment of the trial court divided the ⅜2 equally between the plaintiffs and the defendant — % 4 to those claiming under the widow, Hattie, and ⅜4 to the Trustee, Byerly. That judgment did not, in a strict sense, take anything from the defendant and give it to the plaintiff. It recites, in part: “ * * * the purpose and effect of this judgment being to recognize and vest title to an undivided ⅜⅜ of the ⅛ royalty in both sections in Harry M. Nielsen and North Central Oil Corporation in equal portions and to recognize and vest title in John A. Byerly, Trustee, to an undivided ⅞4 of the ⅛ royalty in said two sections.” The judgment reduced the amount claimed by the plaintiffs and defendant in the proportion that their common source was reduced. It was stipulated that J. W. Grant was the common source of title. Plaintiffs sought, by their trespass to try title suit, to prove a title in themselves superior to that of the defendant, and by a second count to seek a declaration of the respective interests owned by the parties. All that was proved was that a late-filed deed reduced the amount of interest owned by all by ½.

Various theories of estoppel are urged, but we see no principle of law or equity which would permit either party to recover from the other under this record. The widow and Trustee were co-administrators of the estate of J. W. Grant. In the partition suit, commissioners appointed by the court gathered and divided the property, and the partition deed was entered into in keeping with such division. By such deed, each bound his heirs and assigns fully from any claim by the other:

“TO HAVE AND TO HOLD THE above described premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging unto the said John A. Byerly, Trustee, his heirs and assigns forever, so that neither she, the said Hattie Grigsby Grant, nor her heirs, nor any person or persons claiming under her, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof, * *

Byerly executed a warranty in the same language to Hattie Grant. The position of Hattie and Byerly as co-administrators was equal, so that the mistake as to the quantity can no more be charged to one than to the other. The error in quantity having now been established in a suit in which their successors in interest are parties, the correction of that mistake by the judgment rendered in this case was proper under plaintiffs’ second count. As indicated, that judgment took nothing from one and gave it to the other; the only change it made in the position of the parties as they came into court was to reduce the quantity. This had the legal effect, under our recording statutes, of wiping out the interests claimed by plaintiffs S. P. Johnson, Jr., Mrs. Constance E. Byers, Robert E. Byers, Ronald J. Byers, and J. M. Salas. Their interests totaled ⅜4, and at the time it was purchased from Hattie, she had nothing to convey, since she had previously sold the %i which is now owned by Nielsen and Central Oil.

All assignments of error by all parties have been considered and each is overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    Maidie R. Alpert FLEISCHER, Appellant, v. Frances LEVENSON, Appellee.
    No. 14567.
    Court of Civil Appeals of Texas. San Antonio.
    March 8, 1967.
    Rehearing Denied April 5, 1967.

      Lawrence Fleischer, San Antonio, for appellant.
    Crites, Ellington, Peterson & Studer, Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellee.
   BARROW, Chief Justice.

This suit was filed by appellee, a real-estate broker, to recover from appellant owner a real estate commission and attorney’s fees under a written listing agreement. On a prior appeal this Court held that the listing contract met the requirements of Art. 6573a, § 28, Vernon’s Ann. Civ.St., and remanded the cause for determination of the fact issue of whether the broker produced a purchaser who was ready, willing” and' able to purchase the listed property for cash, or upon such terms as might be agreeable to owner. See Lev-enson v. Alpert, Tex.Civ.App., 399 S.W.2d 955, no writ.

The trial court found, after a non-jury trial, that pursuant to the listing agreement appellee had found a purchaser for appellant’s property who was ready, willing and able to purchase said property for cash or upon such terms as might be agreeable to appellant. Judgment was accordingly entered that appellee recover her commission in the sum of $2,572.50, together with the stipulated attorney’s fee of $1,000.00. No formal findings of fact or conclusions of law were filed under Rule 296, Texas Rules of Civil Procedure.

The listing agreement was executed on October 5, 1963, and gave appellee an exclusive listing for a period ending October 12, 1963. Appellant agreed to sell the described property for the sum of $42,875. The agreement provided: “Terms of payment to be at my approval.” It is undisputed that, within the exclusive period, appellee secured a purchaser who submitted an earnest money contract whereby he agreed to pay this sum upon certain stated terms.

Appellant urges, under her first point, that since she did not accept the earnest money contract tendered to her there was no evidence that the terms of payment were acceptable to her. This point is without merit, in that appellee testified that the earnest money contract was prepared in accordance with terms suggested by appellant in a conversation with appellee a few days after the listing agreement was signed. This testimony, although disputed by appellant, supports the finding of the trial court. Furthermore, appellant admitted that appellee had told her that the purchaser was ready either to pay cash or to arrange whatever terms appellant desired. The contractual right to approve the terms of payment did not give appellant the right to arbitrarily refuse to state what terms were acceptable. Atomic Fuel Extraction Corp. v. Slick’s Estate, Tex.Civ.App., 386 S.W.2d 180, writ ref’d n. r. e., 403 S.W.2d 784.

Appellee’s right to a commission was earned when she produced, within the listing period, a purchaser who was ready, willing and able to purchase the property for cash or upon any terms appellant might desire. Maloney v. Strain, Tex.Civ.App., 410 S.W.2d 650, no writ; Juneau v. Milam, Tex.Civ.App., 365 S.W.2d 422, writ ref’d, n. r. e.; Golden v. Halliday, Tex.Civ.App., 339 S.W.2d 715, writ dism’d.

Appellant complains, by her other points, that the earnest money contract submitted by appellee contains terms which are not in the listing agreement and to which she never agreed. Specifically, she complains of the requirements that she furnish an “Owner’s Certificate of Title Guaranty,” as well as a survey of the property, that the note given in partial payment of the purchase price “is not to be secured by a lien,” and that appellant “warrants that this property is zoned ‘D’ by the City of San Antonio.”

The listing agreement provides only that appellant agrees “to furnish marketable title.” Appellee testified, however, that the price of $42,875 was set so that appellant would end up with a net of $40,000, after deducting the real estate commission and expense of the title policy, including a survey of the property. No problem is presented as to the warranty that the property is zoned “D” in that, under the uncontra-dicted evidence, the property is so zoned.

The earnest money contract provided for a cash payment of $12,500, together with a note in the amount of $30,375, payable as follows: the sum of $8,375, plus interest, on January 15, 1964, and thereafter the sum of $5,500, plus interest, annually “until said note is paid in full.” The purchaser did not want a lien on the property and therefore agreed to pay the entire amount of the note, plus interest, to the National Bank of Commerce to be held in escrow. The escrow agreement provided that appellant, at her option, could receive the entire sum at any time. Appellant complains that this clause had the effect of making the entire amount taxable, and that she was interested in securing the tax benefit of a capital gain. Appellee testified that these terms were suggested by appellant, and it is obvious that the purchaser would not be affected by the removal of the option given appellant.

It is seen that none of the requirements complained of by appellant conflict in any way with the terms of the listing agreement. The testimony of appellee supports the finding of the trial court that the purchaser was ready, willing and able to purchase the property upon such terms as might be agreeable to appellant. Appellee thereby earned the commission as provided in the exclusive listing agreement.

The judgment is affirmed.

      . This point is couched in the language of an “insufficient evidence” point, however, on oral argument, appellant’s counsel stated that a “no evidence” point is intended.


author: FANNING, Justice.

text:
    COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Mary Brown ROGERS, Appellee.
    No. 7841.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 5, 1967.
    Rehearing Denied Sept. 26, 1967.

      C. A. Searcy Miller, L. W. Anderson, Harris, Anderson, Henley & Shields, Dallas, for appellant.
    W. A. Pritchard, Bradford & Pritchard, Dallas, for appellee.
   FANNING, Justice.

The opinion of August 1, 1967, in this cause is withdrawn and the following opinion is rendered in lieu thereof.

An appeal from a judgment rendered in a county court at law. Appellee, as plaintiff, sued appellant insurance company, as defendant, upon a policy of insurance, for $728.49, for damages to her automobile. There was no dispute as to the above amount being the correct amount, as same was stipulated, and there was no dispute about the insurance policy being issued and a copy of same is in the record. Appellant’s defense was to the effect that the policy contained an exclusion of named driver provision, providing to the effect that the insurance afforded by the policy “shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Alfred Calvin Rogers”, (emphasis added) and that the collision causing the damages occurred while Alfred Calvin Rogers was operating the automobile insured.

Both parties filed motions for summary judgment and prior to hearing thereon the parties entered into the following stipulation of facts:

“It is mutually agreed by and between the parties herein that at the time and on the occasion of the alleged accident herein, the automobile in question had been parked on the right shoulder of the street in the 3000 Block of North Hampton, Dallas, Texas, for at least three minutes prior to Curtis Davis driving his 1961 Ford automobile into the rear of the automobile in question, and that Alfred Calvin Rogers had been driving the car immediately prior to parking same, and at the time of the collision was still in the driver’s seat behind the wheel.”

The trial court entered judgment for plaintiff-appellee for the amount sued for, $728.49, and overruled defendant-appellant’s motion for summary judgment. Appellant has appealed.

Appellant presents four points of error on appeal as follows:

“FIRST POINT OF ERROR
“The trial court erred in holding that the Appellee’s automobile was not ‘being operated’ by Alfred Calvin Rogers at the time of the occurrence of the loss which was the basis of this cause of action.
“SECOND POINT OF ERROR ■
“The trial court erred in holding that the Appellee was entitled to coverage under her policy of insurance with Appellant because at the time of the occurrence of the loss made the basis of this suit, Appellee’s automobile was being operated by the named excluded driver within the exclusion of named driver endorsement on said policy.
“THIRD POINT OF ERROR
“The trial court erred in granting Plaintiff’s (Appellee’s) Motion for Summary Judgment.
“FOURTH POINT OF ERROR
“The trial court erred in overruling Defendant’s (Appellant’s) Motion for Summary Judgment.”
Appellant in his original brief states:
“The only question to be decided on appeal is whether or not the Appellee’s automobile at the time and on the occasion of this loss was being operated by Alfred Calvin Rogers, the named excluded driver in the endorsement numbered 119.”

Both appellant and appellee state in their briefs to the effect that no Texas cases have been found which are directly in point with the facts in the case at bar. We also have found no Texas cases passing upon a fact situation in point or in near similarity with the case at bar. Both parties have cited many out-of-state cases, none of which are directly in point or in near similarity to the fact situation in the case at bar.

In 7 Tex.Jur.2d, p. 259, it is stated in part as follows:

“Ordinarily, the terms, language, and conditions of policies of automobile insurance are selected and employed by the insurer itself to express the terms and conditions on which the policy is issued. In accordance with the well-established general rule, such policies will be strictly construed insofar as the insurer is concerned. However, insofar as the person who is insured by the policy is concerned, the rule is also equally well-established that such policies will be liberally construed in his favor. Thus, if the words employed by the insurer in drafting the policy are susceptible of more than one construction, the construction that is the most favorable to the insured is the one that will be adopted by the Court, when considering the policy.”

Webster’s New Twentieth Dictionary defines “operate” as follows:

“1. To act; to perform work; to be in action so as to produce an effect * * to work; to set or keep in operation or activity; as to operate a machine.”

In 51 A.L.R.2d 924, many cases are cited considering the meaning of “operate” and “being operated”. The holdings in said cases are based upon the various fact situations involved therein and none of them fit the exact situation we have here.

In Morrow v. Asher, District Court, Northern District of Texas, 55 F.2d 365, it was stated in part as follows:

“It will be noted that the Texas statute predicates the appointment by the nonresident of the chairman of the state highway commission, as his attorney, upon whom service may be had, upon ‘his operating a motor vehicle on the highway.’ The word ‘operate’ means to ‘work or use a machine; to perform some manual act, or series of acts; to keep a machine working or in operation.’
* * * * * *
“One who steps on starter is operating automobile. State v. Webb, 202 Iowa, 633, 210 N.W. 751, 49 A.L.R. 1389. ‘Operate’ signifies personal act in working the mechanism of car. Feitelberg v. Matuson, 124 Misc.Rep. 595, 208 N.Y.S. 786.
“When the driver at time of accident was being directed by owner when and. where and how often to drive, it was held that the automobile was not being ‘operated’ by the owner within a policy covering liability incurred only while automobile was being operated by owner, since ‘operate’ is used to signify the personal act of working the mechanism of the car. Witherstine v. Employers Liability, 235 N.Y. 168, 139 N.E. 229, 28 A.L.R. 1298.
“A truck which had temporarily stopped on the highway with intention to continue in a few seconds was being ‘operated’ within a law requiring automobiles to carry lights when in operation during certain times of the day. Horton v. Benson (Tex.Civ.App.) 266 S.W. 213.
“A car which was being towed was not being ‘operated’ at the time of a collision therewith. Dewhirst v. Connecticut Co., 96 Conn. 389, 114 A. 100.
“Of course, these and many other decisions are shaded somewhat by the particular language of the state statute, or of the contract under consideration. * *
“ * * * Concededly Asher was not operating the car in the sense that he was actually driving it. Differ as we may about the scope of the word ‘operate,’ there is highly respectable authority, both in dictionary and in court decisions, to the effect, as already shown, that operation means the actual handling of the machinery. If Asher was not operating in that sense upon the Texas highway, he could not be served by a notice upon the chairman of the highway commission. * * * ”

The undisputed proof shows that appel-lee’s automobile was not being operated by Alfred Calvin Rogers at the precise time said car was struck by a third party. Nor does such undisputed proof raise a material fact issue for a trier of the facts.

The case of Horton v. Benson, Tex.Civ.App., 266 S.W. 213 (1924) cited by appellant, is not in point here and is clearly distinguishable from the facts in the case at bar. No insurance policy was involved in Horton v. Benson; the question was whether a truck parked on a highway at night came within the meaning of the statute requiring lights upon motor vehicles while being operated at night. Having found that the truck was temporarily stopped by the driver, with the intention on his part to continue his operation within a few moments, the court stated that it was “being operated” within the terms of the statute, however, the court later stated that the question of whether or not it was “being operated” was unnecessary or wholly immaterial to a determination of the case. In this connection we quote from Horton v. Benson, supra, in part as follows:

“The contention of appellant under this assignment is that by the undisputed evidence it is shown that the truck of defendant was standing on the highway, and was being operated upon the highway within the meaning of the statute, requiring lights upon motor vehicles while being operated during the night, which was pleaded by the plaintiffs.
“We think the undisputed evidence shows that the truck was being operated upon the highway at the time of the collision. We think it illogical to hold that a motor truck that is being operated on a highway, and is temporarily stopped on such highway by the driver with the intention on his part to continue his operation within a few moments, is not within the meaning of the statute referred to being operated on the highway. Such construction of the statute would be a very narrow construction, and would defeat the purpose for which the statute was enacted.
“We agree, however, with appellees in their contention that the decision of the question as to whether the motor truck was being operated at the time of the collision was unnecessary and wholly immaterial, as the court, under relevant allegations of the plaintiffs, submitted to the jury the question as to whether or not appellant’s truck was standing on the highway without lights, and as to whether a failure to have such lights was an act of negligence resulting in injury to plaintiffs, and as the jury in answer to such questions gave affirmative answers to each of them. It is therefore apparent that judgment was not rendered upon a finding that appellant was guilty of negligence as a matter of law, but that it was rendered upon the answers of the jury to the questions last mentioned.” (Emphasis added).

The case of Twogood v. American Farmers Mutual A. Ins. Assoc., 220 Iowa 1133, 296 N.W. 239, cited by appellant, is not in point. This case involved an insurance rider which excluded coverage “while being operated or manipulated by any person prohibited from driving * * A minor had driven the car until it stalled on a bridge, whereupon Mr. Twogood put his hand on the wheel, but did not actually guide it. When the automobile started again it went into a ditch. The court held that the minor was driving it, not Mr. Two-good.

The case of State Farm Mutual Insurance Company v. Coughran, 9 Cir., 92 F.2d 239, cited by appellant, is not in point. In this case the car was in motion and although the insured’s daughter was behind the wheel and his wife was seated on the right side, the court held that the wife was the operator because she seized the wheel and caused the accident.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Hollie G. McCLAIN and Belle Fulton, Appellants, v. Curtis HICKEY et al., Appellees.
    No. 7825.
    Court of Civil Appeals of Texas. Texarkana.
    June 27, 1967.
    On Motion for Rehearing July 25, 1967.
    Second Rehearing Denied Aug. 29, 1967.

      Hollie G. McClain, Gilmer, W. C. Hancock, Pittsburg, for appellants.
    Fred Whitaker, Bankhead & Davis, Carthage, Wardlow Lane, Center, Kilgore & Kilgore, Dallas, Billy Hunt: Fairchild & Hunt, Center, Joe Jackson, Carthage, Earl Sharp, Longview, for appellees.
   CHADICK, Chief Justice.

The several parties to this appeal and their legal counsel appeared for the trial of the merits of this case in the district court. Preliminary to the introduction of evidence, at the court’s suggestion, attorneys for the parties entered into settlement negotiations. Reports on the progress of negotiations were made from time to time to the trial judge. Trial of the action was concluded when the trial judge withdrew the case from the jury docket and signed and entered a draft of judgment presented to him by counsel for the parties other than the appellants, Fulton and McClain. The judgment signed and entered by the trial judge contained among its recitals the following, to-wit:

“ * * * and came all parties by and through their respective attorneys of record, and announced to the Court that all matters in controversy herein have been, by the parties, compromised and settled; Whereupon, all parties moved the Court by joint motion, to remove this cause from the jury docket, and enter judgment in this cause in accordance with the agreement of the parties, and the Court having considered such motion, and being of the opinion that said motion should be in all things granted, this cause was removed from the jury docket and judgment is here now entered in accordance with the terms of such agreement of the parties * * *.”

The statement of facts shows that neither appellants Fulton and McClain, nor their counsel, were present when the draft of the proposed judgment was submitted to the trial judge, and that neither of such parties nor counsel for either of them joined in the announcement and motion mentioned in the recital quoted and that no settlement agreement entered into by appellants Fulton and McClain, or their attorneys, with the other parties to the litigation, or their attorneys, was reduced to writing, signed by any party or party’s attorney, and filed as a part of the record; nor was such an agreement made in open court and entered of record. However, it is urged in support of the trial court judgment that the draft of the judgment presented to the trial judge and subsequently signed by him, though neither Fulton nor McClain, nor their counsel signed or otherwise noted approval thereof, was a substantial compliance with Tex.R. Civ.P. 11

In giving effect to the purpose of this rule of procedure the conclusion is obvious that the rule is intended to require the content of an agreement made by parties or attorneys in the course of a judicial proceeding to be preserved by a written memorial signed by those entering into the agreement. The purpose of the rule as stated in Wyss v. Bookman, 235 S.W. 567 (Tex.Com.App.1921), and reaffirmed in Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (Tex.Com.App.1939, opinion adopted), is to remove from the “fallibility of human recollection” agreements made by “counsel in the course of the judicial proceeding which affect the interests of their clients”. The rule requires a written and signed memorial of the agreement. This necessarily means that the assent to and details of the agreement be shown by the memorial; otherwise the assent to and content of the agreement might be preserved only in the memory of the persons making it. The purpose of the rule would not be achieved unless a party or a party’s attorney signed the agreement. The purpose of the rule coupled with the common understanding that a trial judge is not a party to or an attorney in a case on trial before him, eviserates the argument that the judge’s signature on the judgment under review gives the instrument the character of a written and signed agreement made in substantial compliance with Rule 11.

A consent judgment is treated as a contract between the parties to it. Burna-man v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). The judgment entered in this case divested title out of certain parties, (Fulton and McClain not among them) and awarded title and possession of the tract in controversy to Curtis Hickey, R. H. Lee, Lawrence L. McCrary and Fred Whitaker. One of the counts of the cross action that brought Fulton and McClain into the litigation sought relief by way of an accounting, and as a result of the accounting phase of the case the proceeds of mineral production antecedent to the date of trial were awarded and distributed to named parties in satisfaction of adjudications of recovery particularized in the instrument. No portion of the proceeds derived from prior production was allocated to Fulton and McClain as their share or property, although a part, $59,000.00, of such proceeds was ordered paid to other parties to satisfy a recovery of that sum adjudged against Fulton and McClain. In a separate and different action from this on appeal, but in the same court an undivided mineral interest in the tract from which the mentioned minerals were produced is the subject of a trespass to try title suit between R. H. Lee, Curtis Hickey and Fred Whitaker, as plaintiffs, and Fulton and McClain, as defendants. This separate action was pending in the trial court at the time the judgment under review was entered. The judgment under review,/ considered as a contract between the parties to it, would constitute an agreement by Fulton and McClain to the allocation and\ distribution of the proceeds of prior production from the land and such agreement would bar recovery by Fulton and McClaijt| of an interest in the value of the priom mineral production if they successfully! defend their titles in the pending trespass to try title suit. The record reveals this state of affairs, and therein shows that affirm-l anee of the judgment under review would be harmful and prejudicial to the rights of Fulton and McClain.

On motion for new trial the trial court was advised by Fulton and McClain that they concurred in and did not question or challenge a stipulation and tender made by San Jacinto Gas Processing Corporation. The judgment of the trial court will be affirmed as to San Jacinto Gas Processing Corporation, and in all other respects judgment is reversed and the cause is remanded for new trial. Costs will be taxed one-fifth to Fulton and McClain, and four-fifths to the other parties, except San Jacinto Gas Processing Corporation, which shall recover all its costs.

ON MOTION FOR REHEARING

The judgment underlying this appeal adjudicates title to land, confirms an accounting made by certain of the parties and validates a gas purchase contract, settles a receivership and its claims, distributes the entire money proceeds of prior mineral production, awards a recovery as for damages, etc. All such adjudications are the product of the abortive agreement compromising and settling the parties’ differences. The judgment is divided into sections dealing with specific matters and in form appears to be severable but the recitation of compromise and settlement therein, the pleadings and the record as a whole show that the adjudications in each section were conditioned one on the other, that is, an adjudication was agreed to on one phase of the litigation because of the adjudication to be made in another phase; compromise and settlement implies a quid pro quo arrangement. The result is that the record does not clearly show, one exception aside, the numerous adjudications are definitely separable parts of the judgment, and, therefore, severable. In other words, this court cannot with assurance determine, which adjudication, if any, is independent and unconnected with the others. The rule of Bradford v. Taylor, 64 Tex. 169 (1885) is applicable; there it is said:

“We deem it proper, however, to say that there is nothing in the pleadings, nor in the former judgment which can withdraw that judgment from the operation of the general rule under which it has been steadily held, in this state, that the reversal of a judgment against two or more defendants on the appeal of one defendant only will operate as a reversal as to all, if the judgment be entire, operating to the prejudice of all the defendants, and not upon distinct and independent matters in which the several defendants are shown to be separately interested. Burleson v. Henderson, 4 Tex., [49] 59; Wood v. Smith, 11 Tex. 367; Willie v. Thomas, 22 Tex., [175] 176; Dickson v. Burke, 28 Tex., 118; Mc-Ilhenny [and Hutchins] v. [M. C.] Lee [and Co.], 43 Tex., [205] 210.”

See also 2 Freeman on Judgments, Sec. 167, p. 2418; 4 T.J.2d, Appeal in Error in Civil, Sec. 850 (1959). The adjudication respecting the San Jacinto Gas Processing Corporation is the exception mentioned.

The motion for new trial argues that San Jacinto Gas Processing Corporation’s position is identical to the position of Tennessee Gas - Transmission Company, another of the parties, and consistent disposition should be made of both parties. The gas processing corporation made a tender and entered into a stipulation agreeable to all parties and was discharged. The judgment pertaining to it appears to be sev-erable and the disposition originally made proper. On the other hand, an existing gas purchase contract between Tennessee Gas Transmission Company and the trustee well operator was validated, confirmed and continued in existence by a specific adjudication. This circumstance, in addition to the absence of a stipulation agreeable to all parties and a failure of the transmission company to ask for similar relief or to appear in this court by a brief, or otherwise, distinguishes the gas transmission company’s position from that of San Jacinto. These differences in the relative positions of these two parties accounts for the different dispositions originally made by this court.

The only motion for rehearing filed herein is that of appellees Curtis Hickey, R. H. Lee, Fred Whitaker and Lawrence L. Mc-Crary. The argument in their motion has attracted attention to a problem that has not heretofore been directly considered by counsel for the parties, or the court; that is the scope of Fulton and McClain’s appeal. Fulton and McClain’s notice of appeal was directed to the entire judgment, but, the appeal bond filed by these parties, in the part pertaining to this question, is as follows, to-wit:

“WHEREAS, in the above entitled and numbered cause pending in the District Court of Panola County, Texas, and at a regular term of said court, to wit, on the 18th day of October, 1966, the said Charles Spangler, et al., recovered a judgment against the said Hollie G. McClain, et al., for sum of $59,000.-00, from which judgment the said Hollie G. McClain and Belle Fulton, individually and as independent executrix of the Estate of Edwin M. Fulton, deceased, desire to take an appeal to the Court of Civil Appeals for the 6th Supreme Judicial District, sitting at Texarkana, Texas

Relevant to the $59,000.00 award, the judgment does not show its basis, whether in tort or contract, it merely shows Edward B. Lothrop, Robert F. Rosborough, Mrs. J. E. Powers, a widow, Mrs. Charles Spangler, Roy Nesbitt, W. M. Plaster, Travis Pugh, H. L. Padgitt, Lewis Chevallier, A. T. Farr, Jr., H. C. Havron, Robert E. Clark, Dan Littlejohn, Don E. Durham, A. D. Durham, and A. A. Morgan were awarded a recovery of $59,000.00 against Fulton and McClain; Charles Spangler is not named in the portion of the judgment pertaining to the award or elsewhere as a party to the award. The intent of the instrument is not clearly reflected by its language. If the scope of the Fulton and McClain appeal is limited to the adjudication made with respect to the $59,000.00 recovery, Curtis Hickey, R. H. Lee, Fred Whitaker and Lawrence L. Mc-Crary are not parties to the appeal, as they are not parties to the recovery adjudication.

Having concluded that the judgment was entire and not made up of severable parts, with the exception previously mentioned, and that the appeal bond’s language does not clearly limit the appeal, it is further concluded that the Fulton and McClain notice of appeal and appeal bond brought the entire judgment to this court for review. It has been authoritatively held that an appealing party desiring to limit an appeal to a part only of the underlying judgment must clearly and distinctly show an intention to do so. Barnsdall Oil Company v. Hubbard, 130 Tex. 476, 109 S.W.2d 960 (Tex.Com.App., op. adp. 1937); Con-nell Construction Company v. Phil Dor Plaza Corporation, 158 Tex. 262, 310 S.W.2d 311 (1958) ; Dallas Electric Supply Co. v.

Branum Co., 143 Tex. 366, 185 S.W.2d 427 (Tex.Com.App., op. adp. 1945). This construction seems to agree with that made by the parties. The appellants Fulton and McClain have not suggested in their brief that they intended to limit the appeal, and the parties appearing in this court by brief and on motion for new trial proceed as though its scope encompasses them.

Should it develop in a new trial that some or all of the parties agree that disposition of the issues in the litigation can be made in harmony with the present judgment, the trial judge will be free to act upon agreements that are then made, but this court, in the present state of the record, cannot, with assurance determine that the adjudications made by the present judgment are not dependent one upon the other, with the exception named. To render a take nothing judgment in favor of Fulton and McClain, or remand with instructions to the trial court to do so, as the motion for new trial urges would result in a judgment being entered disposing Fulton and McClain’s rights without a trial and without them having an opportunity to be heard in the trial court. This court cannot proceed as urged. Orderly procedure requires that the original opinion be adhered to. The motion for new trial is overruled.

       “No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” The rule’s source is former District and County Court’s Buie 47; the language of the source rule was adopted unchanged. See Historical Note in 1 Vernon’s Texas Rules Annotated, p. 37.


author: CADENA, Justice.

text:
    Rocky REAGAN, Jr., Appellant, v. NATIONAL BANK OF COMMERCE OF SAN ANTONIO, as Independent Executor of the Estate of William B. Lupe, Deceased, Appellee.
    No. 14607.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 6, 1967.
    Morrill & Patton, Beeville, for appellant.
    Trueheart, McMillan, Russell & Hoffman, San Antonio, for appellee.
   CADENA, Justice.

Defendant, Rocky Reagan, Jr., appeals from a judgment rendered after a non-jury trial against him and in favor of plaintiff, National Bank of Commerce of San Antonio, Independent Executor of the Estate of William B. Lupe, Deceased, on a promissory note in the sum of $25,000.00, dated December 30, 1960, and payable on March 15, 1962.

The following facts are undisputed or stipulated: (1) The note in question was executed by defendant and delivered to the payee, William B. Lupe, who died on September 23, 1964. (2) The note, which bore no evidence of payment on its face, was in the possession of Lupe at the time of his death and came into the possession of plaintiff in its capacity as the duly qualified and acting independent executor of Lupe’s estate.

The following findings of fact were made by the trial court: (1) For several years prior to December 30, 1960, the date of the note, defendant and Lupe, as partners, were carrying on an irrigated farming and cattle feeding operation in Maverick County on 900 acres of land which the partnership leased from its owners, Lupe and others, at an annual rental of $20,000.00. (2) The partnership was dissolved in December, 1960, and the note in question was executed by defendant in connection with the winding up of the affairs of the partnership. (3) Thereafter, defendant leased the land in question from Lupe and the other owners at an annual rental of $20,000.00. (4) Defendant continued the farming and cattle feeding operation on the land, paying the agreed annual rental until the end of the year 1962. (S) At the end of the year 1962, Lupe and defendant agreed that if defendant would surrender possession of the land, except for the portion on which defendant’s feeding operations were conducted, prior to January 31, 1963, and pay to Lupe the sum of $1,500.00 per month during the time defendant used the feeding area, Lupe would not attempt to enforce payment of the $25,000.00 note. At the end of January, 1963, defendant surrendered possession of the land to Lupe, with the exception of the feed lot area, which he continued to use until some time in May, 1963, paying to Lupe the sum of $6,300.00. (6) Between January, 1963, and September 23, 1964, the date of his death Lupe made no demand on defendant for payment of the note. (7) Only 750 acres of the 900-acre tract were suitable for farming. (8) Lupe’s knowledge. of the defendant’s inability to pay the indebtedness evidenced by the note was one factor inducing him to make the 1962 agreement.

The conclusions of law filed by the trial judge were to the effect that the fact that Lupe remained in possession of the note, which bore no evidence of payment, until his death, conclusively established that the note evidenced an existing indebtedness, and that the 1962 agreement between Lupe and defendant was not supported by consideration and did not have the effect of discharging the indebtedness evidenced by the note.

Defendant contends that the trial court erred in holding that the 1962 agreement between defendant and Lupe did not effect a satisfaction and discharge of the note.

All of the trial court’s findings of fact are supported by the testimony of Edwin S. Brown who, at all relevant times, was a business associate of Lupe and had custody of Lupe’s business records. He testified that as part of the consideration for defendant’s surrender of possession of the land, and the payment by defendant of $6,000.00, Lupe agreed that he would not bring suit on the note and would make no effort to collect the note. He further stated that defendant surrendered possession of the land and paid the agreed rental for his continuing possession of the feeding area, which constituted only a small portion of the 900 acres, until May, 1963. Other testimony by Brown supports the court’s findings relating to the circumstances under which the note was given and the continued operation of the farm by defendant for two years, as well as the payment by defendant of the agreed annual rental of $20,000.00 until the end of 1962. His testimony also shows that the $6,300.00 paid by defendant during the year 1963 was payment of rent for the feeding area, and not payments on the note.

In view of Brown’s testimony, we do not consider plaintiff’s contention that the trial court should have excluded, under the provisions of the “dead man” statute (Article 3716, Vernon’s Ann.Civ.St.), defendant’s testimony relating to the agreement between defendant and the decedent, Lupe.

We are aware of the many decisions to the effect that possession by a payee of a promissory note which contains on its face no evidence of payment establishes, prima facie, the existence of the indebtedness evidenced by the instrument, and casts upon the obligor the burden of pleading and proving facts showing a discharge of the debt. Twin City Bowling Lanes, Inc. v. C. I. T. Corp., 376 S.W.2d 94 (Tex.Civ.App., 1964, no writ). However, we are aware of-no decision supporting the trial court’s conclusion that such possession of the instrument by the payee conclusively establishes that the indebtedness has not been discharged.

Section 122 of the Negotiable Instruments Act (Article 5939, § 122, Vernon’s Ann.Civ. St.) provides that a renunciation by the holder of a negotiable instrument of his rights against any person liable thereon must be in writing, unless possession of the instrument is surrendered. However, Sec. 119 of the same statute expressly recites that a negotiable instrument is discharged “ * * * 4, By any * * * act which will discharge a simple contract for the payment of money * *

A discharge of the indebtedness under Par. 4 of Sec. 119 may take place even in the absence of a written release or delivery of the instrument to the primary obligor. Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822, 172 A.L.R. 707 (1946). Here, the trial court found that Lupe, induced in part by the knowledge that defendant had no available means with which to pay the indebtedness, agreed to accept, and did accept, defendant’s surrender of possession of the leased land, and the payment by defendant of $6,300.00, as satisfaction of the debt evidenced by the note. If defendant was in possession of the land as a tenant, he was under no obligation to surrender possession of any part thereof to Lupe. It is true, as plaintiff points out, that the evidence relating to the terms of the lease was rather vague, but the evidence clearly establishes that defendant and Lupe negotiated on the assumption that defendant was entitled to remain in possession of the land. Because of the surrender of possession by' defendant, Lupe was able to lease the land to a third party, who raised a crop thereon in the year 1963.

It appears, then, that Lupe did receive valuable consideration for his agreement. In consideration of Lupe’s agreement, defendant agreed to, and did, take action which he was under no obligation to take. The agreement by Lupe to accept the new obligations assumed by defendant as a discharge pf defendant’s obligations under the note operated as a discharge of the instrument under Sec. 119, Art. 5939. Hall v. Wichita State Bank & Trust Co., 254 S.W. 1036 (Tex.Civ.App., 1923, writ ref’d.)

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.

      . All of the relevant transactions took place prior to July 1, 1966, the effective date of the Uniform Commercial Code in Texas. Therefore, this case is governed by the provisions of the Negotiable Instruments Act which were in effect at the time of these transactions. The provisions of Par. 4 of Sec. 119 are substantially embodied in See. 3-601(2) of the Uniform Commercial Code.


text:
    Efrain C. GARZA, Appellant, v. GREYHOUND LINES, INC., Appellee.
    No. 14593.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 6, 1967.

      Southers & Mendelsohn, San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, Edward P. Fahey, San Antonio, for appellee.
   CADENA, Justice.

This suit was filed by plaintiff, Efrain C. Garza, a resident citizen of Texas, in a district court of Bexar County against defendant, Greyhound Lines, Inc., a Texas corporation having its home office in Houston, to recover for personal injuries sustained by him in the Republic of Mexico while he was a passenger on a bus. Plaintiff appeals from an order of the trial court sustaining defendant’s plea to the “jurisdiction” and dismissing plaintiff’s suit on the ground that the applicable substantive law of the place of injury is so dissimilar to the Texas law that our courts will not undertake to adjudicate the rights of the parties.

Plaintiff’s petition alleged the following: In May, 1965, a contract was entered into in this State between defendant, a common carrier, and the Good Neighbor Bowling League of San Antonio, calling for transportation by defendant of members of the bowling league, including plaintiff, from San Antonio, Texas, to the City of Monterrey, Mexico, and back to San Antonio. The entire trip, including arrangements for an unnamed connecting carrier to carry plaintiff and the other bowlers from the City of Laredo, Texas, to Monterrey and back to Laredo, Texas, was planned by defendant. On June 20, 1965, plaintiff, while a passenger on a bus marked “Trans-portes del Norte,” was injured as the result of the negligence of the driver of the bus. The place of injury and of the driver’s negligence was in the Republic of Mexico, between the cities of Nuevo Laredo and Monterrey.

In the alternative, plaintiff alleged that he was a third party beneficiary of the contract between the bowling league and defendant, and that defendant breached its implied contractual obligation to carry plaintiff safely.

Defendant’s plea to the jurisdiction, after alleging that the law of the place of injury controlled the rights of the parties, asserted that the laws of the State of Tamaulipas, wherein Nuevo Laredo is located, the State of Nuevo Leon, wherein Monterrey is located, and the Republic of Mexico, are so dissimilar, to the laws of this State that a Texas court lacked jurisdiction of plaintiff’s cause of action. Attached to this plea were translations of Article 1 and several other Articles of what was alleged to be the Civil Code for the Federal District and Territories, enacted by the Federal Congress of the Republic of Mexico.

Plaintiff contends, defendant admits, and we find that no proper proof was made of the foreign substantive law alleged by defendant to be applicable to this case. There is, therefore, no evidence to support the finding of dissimilarity between the provisions of the foreign law and the law of this State, and the trial court erred in dismissing plaintiff’s suit on the ground of such alleged dissimilarity.

Since we are, officially, ignorant of the provisions of the foreign law, we must turn a deaf ear to plaintiff’s entreaty that we review the trial court’s conclusion that the applicable Mexican law is so dissimilar to ours as to require a dismissal of plaintiff’s suit.

We also decline plaintiff’s invitation to re-examine the rule, well established in Texas as of this date, that in a tort action the law of the place of the tort, or the lex loci delicti, must be looked to in determining the substantive rights of the parties. Our reluctance is not based on a head-in-the-sand assumption that defendant, in subsequent proceedings, will abandon its insistence that our courts close their doors to plaintiff. We find nothing in the Texas decisions which may be characterized as a trend away from the lex loci rule in tort actions, or which has the effect of lessening, in any way, the precedential weight of the Texas decisions applying that rule.

We have not considered the question of whether Article 4678, Vernon’s Ann.Civ.St., makes it mandatory for Texas courts to entertain suits of this nature, despite a dissimilarity between the foreign law and that of this State. That statute is applicable only where a plaintiff, injured by the wrongful act or neglect of another in a foreign jurisdiction, has a cause of action under the foreign law. Plaintiff has neither alleged nor proved that, under the facts of this case, he would have a cause of action under Mexican law.

Plaintiff further assigns as error the dismissal of his alternative cause of action, based on defendant’s breach of its implied contractual duty to carry plaintiff safely, pointing out that, under applicable choice-of-law rules, this portion of his suit is governed by the laws of the State of

Texas, the place where the contract was made. Under the holding in Hudson v. Continental Bus System, Inc., 317 S.W.2d 584 (Tex.Civ.App., 1958, writ ref’d n. r. e.), which involved facts strikingly similar to those before us, this alternative ground of recovery is governed by the law of this State, and the trial court erred in refusing to take jurisdiction thereof.

The judgment of the trial court is reversed and the cause is remanded with instructions that the case be reinstated upon the docket for further proceedings not inconsistent with this opinion.

      . See Carter v. Tillery, 257 S.W.2d 465 (Tex.Civ.App., 1957, writ ref’d n. r. e.). Although dismissals on the ground of dissimilarity of foreign law are couched in terms of lack of “jurisdiction,” there is nothing to indicate that such dissimilarity presents a question of jurisdiction in the sense that it may be raised for the first time on appeal. Of. Flaiz v. Moore, 359 S.W.2d 872, 875 (Tex.Sup., 1962).

      . The most striking asserted points of dissimilarity between the Texas and Mexican law are those alleged provisions of the Code providing that, in case of incapacity resulting from the wrongful act of another the amount of damages shall be fixed by applying the quotas established by the Federal Labor Law (Article 1915 I); limiting recovery to the amount of twenty-five pesos (§2.00) per day (Article 1915 II); and the provision that the damages awarded shall “preferably” be paid in the form of a pension or periodic payments (Article 1915 IY).

      . Defendant attempted to prove the applicable foreign law through the testimony of Felix H. Garcia, Esq., who testified concerning, and offered a translation of, provisions of the Civil Code appearing in a book which did not purport to have been printed by authority of the Mexican government. This Court has held that, under the provisions of Article 3718, Vernon’s Ann.Civ.St., Mexican statutes eontained in a volume must be proved by showing that the volume is a printed statute book purporting to have been printed under authority of the Mexican government. Hunter v. West, 293 S.W.2d 686 (Tex.Civ.App., 1956, no writ).
      We note that, according to Article 1 of the Code which defendant attempted to prove, the provisions relied on by defendant are stated to be applicable in the Federal District and Territories in matters of a “common” nature, and throughout the Republic in matters of a “Federal” nature. The parties have not briefed, nor do we decide, the question of whether in view of the provisions of Article 1 and assuming that such provisions had been properly proved, it was incumbent upon defendant to show that the place of the accident was in the Federal District or in a Territory or, if it was not, that plaintiff’s cause of action is classifiable, under Mexican law, a matter of a “federal” nature.

      . Texas eases adopting the lex loci rule are set out in Marmon v. Mustang Aviation, Inc., 416 S.W.2d 58, 62-63 (Tex.Civ. App., 1966, writ pending).

      . ‘‘Whenever the death or personal injury of a citizen of this State * * * has been or may be caused by the wrongful act, neglect or default of another in any foreign State or country for wMch a right to maintain an action and recover damages * * * is given by the statute or law of such foreign State or country, such right of action may be enforced in the courts of this State within the time prescribed for the commencement of such actions by the statutes of this State. The law of the forum shall control * * * in all matters pertaining to procedure.” It is not clear whether, as indicated in the Marmon case, supra, n. 4, this statute compels the Texas courts to apply lex loci. Our Supreme Court has expressly left open the question whether the statute permits dismissal of a suit on the ground of forum non conveniens. Flaiz v. Moore, 359 S.W.2d 872, 876 (1962). Allen v. Bass, 47 S.W.2d 426 (Tex.Civ.App., 1932, writ ref’d) is authority for the proposition that the right given by Article 4678 is an absolute right, depriving the Texas courts of any discretion in the matter. See Wintraub, Choice of Law for Products Liability, 44 Tex.L.Rev. 1429, 1441, n. 46 (1967).


author: DAVIS, Justice.

text:
    TOBIN & ROONEY PLASTERING COMPANY, Appellant, v. Albert GILES et al., Appellees.
    No. 7810.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 5, 1967.

      J. Chrys Dougherty, Graves, Dougherty, Gee, Hearon, Moody & Gardwood, Austin, E. D. Vickery, Gus A. Schill, Jr., Royston, Rayzor & Cook, Houston, for appellant.
    Ben G. Sewell, McGregor, Sewell, Junell & Riggs, Houston, for appellees.
   DAVIS, Justice.

The opinion handed down in this case on June 27th, 1967, is withdrawn and the following is substituted in lieu thereof.

A tort case. James Patrick Murphy sued Tobin & Rooney Plastering Company for damages because a 50 lb. sack of insulating material (Monokote) fell off a lift device at the 19th floor of a building that was under construction by W. S. Bellows Construction Corp., the prime contractor, in the City of Houston and striking Murphy who was standing on a truck on the ground. Tobin & Rooney was a subcontractor. They were in the process of lifting the 50 lb. sacks of insulating material by a lift device, which was not properly stacked and tied, and one sack slipped off the device at the 19th floor and struck Murphy. Tobin & Rooney impleaded Albert Giles and La-conieu Manuel.

The case was tried before the court. Judgment was rendered against Tobin & Rooney for $64,500.00, giving Tobin & Rooney contribution against Giles and Manuel for $32,500.00.

Appellant has perfected its appeal and brings forward one point of error.

By its point, appellants say the trial court erred in failing to grant it full indemnity against appellees, because appellees failed to follow instructions in loading the lift device according to instructions in a safe and workmanlike manner.

One of the witnesses testified that the top layer of sacks protruded above the upper level of the lift device, and the sack which fell was not tied according to instructions and fell from the back portion at the 19th floor. He testified, in part, as follows:

“Q. (By the Trial Court). They were stacked higher than the elevator? (lift device).
“A. Yes, sir, three or four inches above the end of the elevator.
“Q. And the sack that fell off on the top leval?
“A. Yes, sir.
“Q. Was it crosswise this way or that way?
“A. It was straight across like this.
“Q. There wasn’t anything to keep it from rolling off?
“A. No sir, it was on the far end.
“Q. Assuming this is the outside of the building and it was parallel there on the outside end, it could go off onto the ground ?
“A. Yes, sir.
“Q. And there wasn’t anything except its own weight to keep it from going off the side of the platform.
“A. Yes, sir.”
Another witness testified as follows:
“Q. So, that if the sacks were properly put on here the way you instructed these men to put them on by overlapping them and laying a sack on top of another and tying the ropes to the bar, there is no way that those sacks would slip loose and fall if properly done on the outside?
“A. I don’t see any reason, no sir.”

The trial court found that the appellees were guilty of negligence contrary to the instructions that had been given them by the foreman of appellant. Under the law in Texas, the third party plaintiff is entitled to full reimbursement, in the event the third party defendant has breached a duty to the third party plaintiff where the third party plaintiff has breached no duty owed to the third party defendant. Such are the facts in this case. Austin Road Co. v. Pope (T.S.C.1949), 147 Tex. 430, 216 S.W.2d 563; Humble Oil & Refining Co. v. Martin (T.S.C.1949), 148 Tex. 175, 222 S.W.2d 995. See, also, Gulf, Colorado & Santa Fe Railway Co. v. Bliss (T.S.C.1963), Tex.Civ.App., 368 S.W.2d 594; Union Iron & Metal Company v. Gibson (T.C.A.1963), 374 S.W.2d 458, W.R., N.R.E.; Panhandle Gravel Co. v. Wilson (T.C.A.1952), 248 S.W.2d 779, W.R., N.R.E.; 26 Tex.Law Rev. 150 (1947); 44 Tex.Law Rev. 326 (1965); 38 Tex.Jur.2d, 187, Sec. 38; 35 Am.Jur. 531, Sec. 101; American Southern Insurance Co. v. Dime Taxi Service (1963), 275 Ala. 51, 151 So.2d 783, 4 A.L.R.3rd 611 (1963). The point of error is sustained.

The judgment of the trial court is reformed so as to grant appellant full indemnity against the appellees.

Reformed and affirmed.


author: HOGAN, Judge.

text:
    Viola JOHNSON, Plaintiff-Respondent, v. George L. BUSH and Ozark Gas and Appliance Company, a corporation, Defendants-Appellants.
    No. 8573.
    Springfield Court of Appeals. Missouri.
    Aug. 25, 1967.

      Raymond E. Whiteaker, Allen, Woolsey & Fisher, Springfield, for defendants-appellants.
    B. H. Clampett, Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for plaintiff-respondent.
   HOGAN, Judge.

This is an action begun by plaintiff to recover damages for personal injuries and property damages sustained in an automobile collision. The plaintiff originally sued defendant George L. Bush (the driver of the vehicle which collided with hers), the driver’s father, and a corporation owned by the driver’s father, upon the theory that defendant George L. Bush was the agent and servant of one of the other two defendants. Defendant George L. Bush filed a counterclaim which we need not consider here, and the corporate defendant filed a counterclaim for property damage done to its vehicle which George L. Bush was driving. The plaintiff dismissed as to the driver’s father and the corporate defendant, and submitted her case against defendant George L. Bush upon both primary and humanitarian negligence. The counterclaim made by defendant Ozark Gas and Appliance Company was also submitted. A jury resolved the matter by finding for the plaintiff in the aggregate sum of $3,000 and against both defendants. The defendants have appealed. The nature and extent of the plaintiff’s injuries are not in dispute. Our review will be limited to those claims of error which have been briefed and argued in this court. White v. Kuhnert, Mo.App., 207 S.W.2d 839, 840 [1].

The accident which gave rise to this case occurred in the city of Springfield, Missouri, when the plaintiff, emerging from a private driveway, attempted to turn left on Kearney Street. Kearney is 58 feet wide and runs east and west at this point. It is divided into six lanes, two each for east and westbound traffic, with an outer “de-acceleration” lane next to the curb on both the north and south sides. The plaintiff stated that at the time in question “traffic * * * was pretty heavy [on Kear-ney] either from one direction or the other.”

Mrs. Johnson had stopped at a service station on the north side of the street to have some air put in her right front tire. The service station is on the north side of Kearney facing south, and there are two driveways leading from the service station into the street, one at the east side of the station and the other at the west. The plaintiff had entered the premises from the east and was headed west when she stopped. In order for her to get to her destination, it was necessary for her to leave the service station by the west driveway, cross Kearney from north to south, and proceed easterly in one of the south (eastbound) traffic lanes. Accordingly, Mrs. Johnson moved to the west entrance and turned south “with [her] front wheels next to the dip [at the curbline]” and “sat [there] quite a little while looking both ways.” The evidence establishes that at this point Kearney slopes down to the west and that the crest of the slope or hill is 375 feet east of the approximate center of the driveway from which the plaintiff started to turn. Plaintiff stated that when the last car passed going west, she looked to the west and saw one eastbound car on Kearney approximately two blocks away, then looked back to the east “and there was nothing there and I took off into the street,” at a speed of “anywhere from five to ten miles an hour.” Mrs. Johnson was “looking to the east as [she] pulled out into the street,” but “did look where [she] was going out in the street later.” As Mrs. Johnson “got out into the street and was crossing the center line,” with her vehicle headed “southeasterly, though mostly east,” the defendant’s vehicle, going west, struck the “left front” part of plaintiff’s vehicle. Plaintiff stated that she did not see the defendant’s vehicle until it was “ * * * like two, three feet from [her],” and estimated that Mr. Bush was driving very fast, “fifty, sixty.”

In support of her case, the plaintiff introduced parts of a pre-trial deposition given by defendant Bush. Mr. Bush’s version of the facts was that immediately prior to the collision he “came up over a hill” going west on Kearney, and that “just when [he] came over the top of the hill” in the south westbound lane, he saw plaintiff’s vehicle “sitting in the middle of the road, blocking the right-hand lane.” Mr. Bush believed that he had plenty of time to “go around” on the left but according to his testimony plaintiff saw him and stepped on the gas and he had to swerve over into the eastbound (south) lane, but he “swerved as far as [he] could and still hit her.” Mr. Bush estimated that plaintiff was no more than 80 feet away when he first saw her, and that her vehicle was then sitting with the “front bumper just over the center line between the right and left-hand lanes” in the westbound portion of the highway. Mr. Bush estimated his speed to be about 30 miles per hour at the point of impact. Much other evidence was presented, but this is a sufficient background statement to show the nature of the case.

The appellants’ first point is that the trial court erred in submitting the cause on defendant Bush’s primary negligence, because the plaintiff was contributorily negligent as a matter of law in 1) failing to yield the right of way to the defendant, and 2) in failing to maintain a vigilant lookout as she drove from the service station into the street.

We agree with the appellants in their assertion that the plaintiff was under a duty to maintain a vigilant lookout as she emerged from the service station, and that her duty to the defendant was also governed by the provisions of Section 304.021, par. 5 RSMo 1959, V.A.M.S., which reads:

“The driver of a vehicle about to enter or cross a highway from an alley or any private road or driveway shall yield the right of way to all vehicles approaching on said road or highway.”

Nevertheless, we do not conceive the plaintiff’s duty in the same absolute and unyielding terms as the appellants. As plaintiff started to cross Kearney, she did have a duty to maintain a careful and vigilant lookout, and that duty required her to take cognizance of the traffic hazards which a very careful and prudent person should have seen in the same or similar circumstances, James v. Berry, Mo.App., 301 S.W.2d 530, 533 [5]; Heinecke v. Hardware Mut. Cas. Co., 264 Wis. 89, 58 N.W.2d 442, 444 [3], but the plaintiff was not required to see over hills or around obstacles, Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 376 [10], nor maintain a continuous lookout in one direction, Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 923 [5]; Jones v. Fritz, Mo.App., 353 S.W.2d 393, 398 [9], and in point of fact, the question whether a driver has been negligent in failing to keep a lookout in a particular direction and has thereby failed to see all he should have seen is usually a jury question. Slaughter v. Myers, Mo., 335 S.W.2d 50, 54 [6]; Cox v. Moore, Mo.App., 394 S.W.2d 65, 70 [13]; 61 C.J.S. Motor Vehicles § 526, pp. 437-438. Likewise, though the statute governing the right of way in this situation is absolute in its terms, the plaintiff is only required to yield to those vehicles approaching so closely as to constitute an immediate hazard, Taylor v. Schneider, Mo.App., 370 S.W.2d 725, 728-729 [5]; 60 C.J.S. Motor Vehicles § 347(b), p. 811, and if, in the most favorable view of the evidence, a jury could have found that the plaintiff, acting as a very careful and prudent person would act, started to cross Kearney in the reasonable belief that she had sufficient time and space to proceed to the eastbound lanes in safety, then it cannot be said that she was contributorily negligent as a matter of law in failing to yield the right of way to Mr. Bush. State v. Arena, 46 Haw. 315, 379 P.2d 594, 603 [8-10]; Peterson v. Lang, 239 Minn. 319, 58 N.W.2d 609, 612-613 [4-6]; Temple v. Ellington, 177 Va. 134, 12 S.E.2d 826, 828-829 [5] [6].

In arguing the plaintiff’s contributory negligence, the appellants have laid great stress upon various conflicting estimates of speed, distance, position and time made by the parties and various other witnesses, inviting us to join them in their conclusion that Mrs. Johnson was contrib-utorily negligent as a matter of law through a process of extrapolation from these estimates. We decline to do so. An examination of the record shows that much of the testimony upon which they base this argument consists of tentative and hesitantly given “estimates” and “best judgments” recalled from the witnesses’ memories of events which occurred under great stress a year and a half before the trial. Though calculations based on such estimates sometimes have a special relevance in the arcane world of the humanitarian doctrine, see Herr v. Ruprecht, Mo., 331 S.W.2d 642, 648-649 [7]; Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 602, and authorities cited note 1, it is sufficient to say that as far as plaintiff’s primary submission is concerned, the witnesses’ estimates of speed, distance, time and position cannot realistically be classified as absolute facts which the jury was bound to accept as true, and that calculations based on such estimates and approximations cannot convict a plaintiff of contributory negligence as a matter of law.

A plaintiff’s contributory negligence is a jury question unless it must be said from all the evidence and the reasonable inferences therefrom, viewed in a light most favorable to the plaintiff, that the only reasonable conclusion is that plaintiff was negligent and his negligence was a proximate cause of the injury. Hardy v. St. Louis-San Francisco Ry. Co., Mo., 406 S.W.2d 653, 658 [4]; Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19 [1], We think the most that can be said here on the issue of contributory negligence is that reasonable minds might differ. It may be granted that a jury could reasonably have found Mrs. Johnson con-tributorily negligent, but we believe a jury might also have found the facts to be as follows: That the plaintiff stopped at the north curbline of Kearney and looked both to the east and to the west. She saw one eastbound vehicle approaching from the west about two blocks away and none approaching from the east. We do not attach the same importance as do appellants to Mrs. Johnson’s statement that there was positively no vehicle in the westbound lanes as she started across the street; her observation seems to us to be corroborated by Mr. Bush’s testimony that plaintiff was already in the act of turning “just when I came over the top of the hill.” Testimony was given by one witness indicating that an automobile proceeding west on Kearney is partially visible from plaintiff’s point of exit into the street at a distance somewhat greater than 375 feet, but the evidence indicates to us that the hill crest 375 feet to the east was the practical limit of plaintiff’s vision to her left as she emerged from the driveway, for if Mr. Bush did not see Mrs. Johnson until he came over the crest of the hill, it would seem reasonable to suppose that she could not see him until he had done so. We think a jury could have found that plaintiff reasonably believed from appearances that she could cross Kearney in safety, and that as Mr. Bush came over the crest of the hill Mrs. Johnson had already begun her turn and was proceeding across Kear-ney. In terms of comparable situations, we do not consider that the plaintiff was in a position analogous to that of the plaintiffs in Ely v. Parsons, Mo.App., 399 S.W.2d 613, James v. Berry, supra, 301 S.W.2d 530, and the other cases cited by the appellants. Rather, the plaintiff’s situation seems to us to have been much more nearly comparable to that of the plaintiffs in Cooksey v. Ace Cab Co., Mo., 289 S.W.2d 40, 44 [1-4], Highfill v. Maier, Mo.App., 379 S.W.2d 191, 193-194 [3] [4, 5], and Reynolds v. Consolidated Cabs, Inc., Mo.App., 374 S.W.2d 955, 959 [4] [5-7], even though the parties’ rights and duties were not strictly the same as those of drivers at uncontrolled intersections. 7 Am. Jur.2d Automobiles and Highway Traffic, § 204, p. 756. In other words, and although they could reasonably have found otherwise, a jury could have believed that Mrs. Johnson had already begun a lawful maneuver and had pre-empted the right of way by the time she and Mr. Bush first became visible to each other and while defendant Bush was still 375 feet, or nearly that far, from the point of collision.

It thus follows that the trial court did not err, for either reason assigned by the appellants, in submitting the plaintiff’s case on primary negligence, and since defendant Ozark Gas and Appliance Company concedes that the judgment on its counterclaim must stand if plaintiff made a submissible primary case, we need not consider its claim of error further. This does not, however, dispose of the appeal. The law now requires that there be substantial evidence to support every theory of recovery submitted to the jury, and therefore, even if the evidence is sufficient to justify plaintiff’s primary submission, there is reversible error unless it also supports her humanitarian submission, M.A.I. 1.02, p. 7; Hardy v. St. Louis-San Francisco Ry. Co., supra, 406 S.W.2d at 659 [6], though formerly there was no error if the plaintiff’s evidence supported either theory of submission. Nelson v. Wabash R.R. Co., Mo., 300 S.W.2d 407, 409 [1]. Further, the humanitarian negligence submitted was not a single compound act of negligence, as discussed in Nelson v. O’Leary, Mo., 291 S.W.2d 142, 148 [7], Frandeka v. St. Louis Pub. Serv. Co., 361 Mo. 245, 258-259, 234 S.W.2d 540, 549 [17], and as authorized to be submitted by M.A.I. 17.14; plaintiff’s humanitarian instruction was an alternative submission predicating recovery upon defendant Bush’s failure to stop or slacken his speed, as authorized in humanitarian cases by M.A.I. 17.15. Since the instruction allows recovery upon a finding of either of two alternatives, there must be evidentiary support in the record for each disjunctive hypothesis. Primarily, the appellants’ point with regard to the humanitarian submission is that the plaintiff failed to prove that defendant Bush had the ability to avert the accident with the means at hand and with reasonable safety to himself, and to others after he knew or should have known that plaintiff was in a position of immediate danger, or imminent peril, as it used to be called. We agree that such proof was an essential element of plaintiff’s humanitarian case. Lane v. Wilson, Mo.App., 390 S.W.2d 943, 949 [8].

Again in this connection, as in their argument that no primary case was made, the appellants have reconstructed the accident from the estimates of speed, time, distance and position made by the various witnesses. As indicated, we agree that calculations based on such testimony have a special importance in humanitarian cases, but in this instance the evidence which supports the primary submission also supports the humanitarian submission, and we find it unnecessary to analyze the casualty foot by foot and second by second. Without examining all the computations' made by the appellants in detail, we may say that we are not inclined to hold a plaintiff strictly bound by exact figures as to speed, time or distance when such figures consist of estimates, even in humanitarian cases, and in particular we do not think the sub-missibility of the plaintiff’s case should turn upon the estimate made by one witness that the development time of the whole casualty was “just two or three or four seconds,” when there is other more favorable evidence indicating that the defendant had an ample opportunity to avert the collision after his humanitarian duty arose. Much more substantial is appellants’ argument that plaintiff may not claim the benefit of defendant Bush’s pre-trial deposition, introduced as an admission, because this evidence is “at war” with her own testimony.

This last argument is not without merit, and if the plaintiff’s testimony were fairly comparable to the plaintiff’s testimony in Thomas v. Aines Farm Dairy, Mo.App., 257 S.W.2d 228, 232 [2], and the other cases which the appellants have cited and compared to this one, we would be inclined to agree. Plaintiff’s testimony, or some of it, is indeed subject to the construction that she was looking to the east when she emerged from the driveway, and that she continued to look in that particular direction as she turned. Of course, if she was aware that the Bush vehicle was approaching, then defendant Bush’s humanitarian duty would not have commenced until plaintiff was actually in his path of travel or so close to it that it was apparent (at the rate of speed and manner she was traveling) that she would not stop before reaching it. Frandeka v. St. Louis Pub. Serv. Co., supra, 361 Mo. at 256, 234 S.W.2d at 547 [14]; Smithers v. Barker, 341 Mo. 1017, 1027-1028, 111 S.W.2d 47, 53 [7]. On the other hand, if ' plaintiff was not aware of defendant Bush’s approach, then defendant’s duty to act arose when it was or should have been reasonably apparent that plaintiff was oblivious to his approach and was intent on moving into his path, and plaintiff could have been found by the jury to be in immediate danger or imminent peril while she was still approaching defendant Bush’s line of travel. Silver v. Westlake, Mo., 248 S.W.2d 628, 632 [1, 2], A plaintiff may, by his own testimony, cut down the time of imminent peril to the point that he literally testifies himself out of court, Yeaman v. Storms, 358 Mo. 774, 779-781, 217 S.W.2d 495, 499-500 [3-5] [6]; Thomas v. Aines Farm Dairy, supra, 257 S.W.2d at 232 [2], but in order to determine if Mrs. Johnson’s testimony amounts to a binding admission that she was a non-oblivious plaintiff, we must at least consider her testimony as a whole, 32A C.J.S. Evidence § 1040(3), p. 784, and it should appear that the testimony relied on as an admission was clear and unqualified and was not the result of mistake, oversight, misunderstanding, or lack of definite recollection. In this case, Mrs. Johnson seems to have misunderstood what counsel meant when she was asked where she was looking as she turned left into Kearney from the driveway. At one point in her direct examination Mrs. Johnson did testify that she looked to the east and “continued looking to the east as J pulled out on to the highway,” but she qualified or explained this a few questions later by saying that “I did look where I was going out in the street later.” During her cross examination she testified similarly by answering “yes” when she was asked if she “continued looking east as you pulled across the highway,” but plaintiff further explained this answer by stating “and then I looked straight ahead so I would know where to be turning to get into my lane, and it was then, after I turned and first glanced up, that he was right into me.” Quotations of this sort might be multiplied, but when we consider the plaintiff’s testimony as a whole, the sense of it was that she divided her attention between the different directions in which she had to look, and in our opinion her testimony does not amount to a binding admission that she fixed her attention upon approaching westbound traffic during all the time she was crossing, so as to preclude her recovery as an oblivious plaintiff.

Again, as with the primary submission, we think a jury could reasonably have found that when Mr. Bush “came over the hill” 375 feet east of the center bf the driveway from which plaintiff emerged, or, as he also stated, when he was not “more than five feet over the crest,” Mrs. Johnson had already started her turn and was looking to the west, away from Mr. Bush. In these circumstances, the position of plaintiff's vehicle and her direction of travel could have been found to indicate her intention to travel across the defendant’s path, and a jury could reasonably have found Mrs. Johnson to be in immediate danger from the moment her vehicle and her inattention became or should have become apparent to Mr. Bush. Defendant Bush then had at least 370 feet in which to act. Two witnesses estimated Mr. Bush’s speed at 50 miles per hour. Even though we do not judicially know the precise distance in which Mr. Bdsh could have stopped, we know judicially that he could have stopped within 350 feet. Perry v. Dever, Mo., 303 S.W.2d 1, 7 [14]. It reasonably follows that he could have slackened his speed sufficiently to allow plaintiff to pass in safety, Fultz v. Southwestern Bell Telephone Co., Mo.App., 382 S.W.2d 24, 28 [3], and plaintiff made a submissible humanitarian case upon both disjunctive hypotheses.

We conclude that no reversible error is demonstrated upon the record presented for any of the reasons briefed and argued in this court, and the judgment is therefore affirmed.

STONE, P. J., and TITUS, J., concur.

      . Young v. Missouri-Kansas-Texas R. Co., Mo., 100 S.W.2d 929, 934 [3-5]; Jones v. Fritz, supra, 353 S.W.2d at 399 [11, 12]; Caffey v. St. Louis-San Francisco Ry. Co., Mo.App., 292 S.W.2d 611, 617-618; 88 C.J.S. Trial § 208(2) (g) (5), p. 442.

      . Zumault v. Wabash R.R. Co., Mo., 302 S.W.2d 861, 864-865 [6]; Smith v. Siercks, Mo., 277 S.W.2d 521, 525 [3] ; State ex rel. Thompson v. Shain, 351 Mo. 530, 534r-538, 173 S.W.2d 406, 407-409 [2]; DeRossett v. Malone, 34 Tenn.App. 451, 239 S.W.2d 366, 378 [33-36].

      . M.A.I. 1.02, pp. 6-7; Whitehead v. Fo-gelman, Mo.App., 44 S.W.2d 261, 263; Barth v. San Juan Development Co., 168 Cal.App.2d 760, 336 P.2d 203, 206-207  [7] ; 88 C.J.S. Trial § 327(c), pp. 855-856.

      . Martin v. Kansas City, Mo., 340 S.W.2d 645, 647-649 [1] [2] [3]; Smith v. Siercks, supra, 277 S.W.2d at 525-526 [4]; Steele v. Kansas City Southern Ry. Co., 265 Mo. 97, 110-111, 175 S.W. 177, 179-180 [2]; Goggin v. Schoening, Mo.App., 199 S.W.2d 87, 93 [4].