text:
    Hope A. BURDICK, Appellant, v. YORK OIL COMPANY, Inc., et al., Appellees.
    No. 13994.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1963.
    Rehearing Denied Feb. 20, 1963.

      Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Carsner, Carsner & Larsen, Victoria, for appellant.
    Guittard & Henderson, Victoria, Butler, Binion, Rice & Cook, Tom Alexander, Houston, for appellees.
   POPE, Justice.

This is a personal injury case. The jury answered all issues against the plaintiff, Hope A. Burdick, and he has appealed. The case must be reversed upon the points which complain that Mr. Tom Alexander, attorney for the defendant York Oil Company, Inc., saturated the record with harmful and excluded evidence.

Plaintiff sued for damages to his neck suffered in a collision when the driver of York Oil Company’s car ran into the rear of plaintiff’s car. There was evidence which would support a verdict either way. The trial lasted two weeks and the statement of facts consists of 1,196 pages, which we have read. The points complain that defense counsel thrust many improper subjects into this trial before a jury. For illustrative purposes,, we shall discuss only one of the improper subjects in detail. This will show the pattern for the trial which resulted in a pyrrhic victory for the defendants.

Before the court began hearing evidence, plaintiff made a motion in limine to exclude matters contained in the Veterans Administration Records. The court excluded the records because defendants failed to overcome the requirements of the federal statute. 38 U.S.C.A. § 3301; Turners, Inc. v. Klaus, Tex.Civ.App., 341 S.W.2d 182; Kassow v. Robertson, Ohio Com.Pl., 143 N.E.2d 926; McLaughlin v. Massachusetts Indemnity Ins. Co., 85 Ohio App. 511, 84 N.E.2d 114. In spite of that decision defense counsel commenced a studied and successful course of questioning about those records. He repeatedly criticized the privilege and charged the plaintiff with concealing matters from the jury. The effect was that the protection of the privilege was destroyed. This was accomplished, not by indirection or an inadvertent mistake; it was the calculated theory of trial.

Defense counsel while cross-examining the first witness, turned to the court room and addressed the custodian of the Veterans Administration records and said, “I am going to ask Mr. Montemayor from the Veterans Administration to hold up that sheaf of records on Hope Burdick.” The court ordered the remark stricken. Counsel then asked the witness, “Suppose though, Doctor, that the history was from the Veterans Administration records that this was a man that shot himself in the leg twice in the service.” Upon objection, counsel volunteered the statement, “I certainly intend to show by the Veterans Administration records and by Mr. Burdick himself he was under indictment.” This later proved to be a false statement. Counsel continued, “The doctor has testified by reference to the Veterans Administration records he could have gotten the complete history of this patient and I submit that this is admissible testimony and material testimony.” He again asked the witness, “ * * * wouldn’t it have been important for you to consult and read the Veterans Administration records and file in this case?” When plaintiff again invoked the federal privilege statute, counsel incorrectly stated that there was no such statute and said, “If Mr. Burdick and his lawyers would give you permission you can sit here during the noon hour and read through those Veterans Administration records. If they give you that permission will you do that?” Objections were again sustained.

After the noon recess of the first day, defense counsel called Mr. Montemayor out of order. He is an attorney for the Veterans Administration. The records were again excluded, after which counsel began a series of questions such as: “Have you appeared with Veterans Records and testified in courts before ?” “On prior occasions when you have testified, have those records been admitted?” “And have you ever had before, in your experience in introducing those records into evidence, have you ever had the attorneys for the plaintiff refuse to give consent to have those records admitted before the jury?” “You understand as an attorney and as an officer of the Veterans Administration that there would be no question about admitting these records before the jury?” “You do understand here the reason that these records have not been admitted to this jury is because the plaintiff’s attorney refuses to allow the jury to see these records?” When excluded, defense counsel moved the court “to give its instruction as to why the jury should disregard it, that it was because of the plaintiff’s objections.” Counsel emphasized the point by asking the court, “May the court please, so that I can understand the rulings of the court, would the court please state its ruling as to why these records were not admitted?” After sustaining objections, counsel asked, “Now Mr. Montemayor, you and your superiors in the Veterans Administration have no objection and made no objection to the introduction of these records into evidence, have you?” The court permitted the witness to answer “No.”

Counsel asked the plaintiff on the third day of trial, “You know, don’t you, all we need to get the whole Veterans Administration file in evidence is your consent? Will you consent putting that file in evidence so that the matter can be straightened up before the jury and the court ?” When the privilege was again claimed, counsel stated, “There is no law that says he can’t consent to admit these records.” He continued, “The privilege is this witness’ and this witness’ alone. This witness has not claimed his privilege, just his lawyer has. This man is entitled to be asked whether he wants to waive * * He pursued it even further and said, “I am going to ask him as to his cause for claiming his privilege. Now then, Mr. Burdick, before your lawyers decided to claim your privilege for you, did they confer with you?” After a negative answer, counsel asked, “They did it because they have seen the records, isn’t that right?” Counsel then questioned the plaintiff about other matters and in doing so referred to the defendant as an individual instead of the corporate defendant Upon an objection that this would mislead the jury, defense counsel, without warning, commented, “I am not the one that kept the records out and I don’t intend to mislead this jury in any way.” The court instructed the jury to disregard these comments of counsel, and three pages later the record shows that counsel again asked, “As a matter of fact, in the Veterans Administration records there are reports from your private doctors, aren’t there?” He followed this by asking, “You certainly know the easy way for us and all the jurors to find out about what is in there don’t you ?”

Plaintiff’s attorney was examining Mrs. Burdick on the sixth day after trial began. He questioned her about her husband’s physical condition before the accident, and particularly about a gun-shot wound he had received in Denver. Defense counsel objected to the words of a question by saying, “I object that the phrase ‘and whatever inferences may or may not he drawn from it,’ and point out to the court that they have refused to allow these Veterans Records into evidence.” On the seventh day, while Burdick was again on the stand, defense counsel offered the records of the Department of Public Safety to show plaintiff’s accident record. When plaintiff objected, defense counsel responded, “They are not about to invoke a personal privilege on that record. It is a record of a Department of this State.” The court ordered the remark stricken. On the eighth day counsel again, in the presence of the jury, offered the complete records of the Veterans Administration and said “What I am interested in is getting all the facts before the jury.” On the ninth day of the trial, counsel called a court reporter to testify about a statement Mr. Burdick had given while in the hospital. Without warning, he asked, “Are you familiar with the situation in which a plaintiff or his lawyer withdraw their censent so that those records can’t be introduced into evidence, especially in connection with Veterans Administration records?” The court sustained an objection, but counsel’s next statement was, “I would like to offer the medical portions of the Veterans Records.” The court again sustained an objection, but counsel persisted by saying, “May the court please, they have the right to change their mind at any time and withdraw the privilege they have claimed.” The remark was stricken.

The case was argued on Monday of the third week after trial began. Still ignoring the court’s over-patient and numerous orders, counsel argued, “Ladies and Gentlemen, these things I say to you about matters that have been objected to and kept out of the record, I don’t mean to say it is positive evidence those things happened, but you Ladies and Gentlemen, as you can read from the Court’s charge, are entitled to consider also circumstantial evidence and to draw whatever reasonable inferences you can draw from the evidence that is in the record.” Plaintiff had argued that this was his last day in court on the case, and by way of reply, defense counsel argued, “It is certainly not his first. * * * They have kept the Veterans Administration records out and now they are talking about what is in them and they will reflect that.” “Do you want to let the Veterans Records in? He has been in court more than one day and if you want to put the records in, put them in.” Objections were sustained. Counsel then crowned all his former disregard for the rules of evidence and the court’s rulings, by arguing:

“Ladies and Gentlemen, in that regard I have a peculiar advantage over you because I know what is in those Veterans records and I know why he has taken that position about them because he knows he can keep them out.”
“The reason they are not in this record is because of personal privilege like the Fifth Amendment has been invoked here.”
“The law says when you invoke a personal privilege or take the Fifth Amendment the jury is entitled to hear the person invoking such privilege take the stand and so state.”
“You know when a man takes the Fifth Amendment, the jury is entitled to hear him take the Fifth Amendment.”

We have detailed thirty-eight times that counsel disregarded the court’s rulings and instructions. He did it in the form of factual statements, suggestive or repetitious questions, argument to the court, side-bar remarks, and jury argument. They included criticisms of the plaintiff for claiming the privilege, his counsel, the court, and the rule of law. It began with the first witness and continued through the argument.

Briefly, we shall show a similar technique concerning the skillful injection of insurance into the record. Defense counsel, during the voir dire, asked about former claims by any of the panel members. One juror related some storm damage claims. Counsel stated to the jury, he was not interested in storm damages for “that is an insurance matter.” Plaintiff objected because it suggested the absence of insurance, which is as bad as the suggestion by a plaintiff that there is insurance. Rojas v. Vuocolo, 142 Tex. 152, 177 S.W.2d 962. Later in the trial, defense counsel was questioning plaintiff and asked him when he hired a lawyer. Plaintiff replied that it was when a man from a “claims bureau” came to see him in the hospital. Defense counsel moved for a mistrial, which the court denied because, among" other reasons, he induced the answer. Counsel then pursued his question and openly thrust insurance into the case by the question, “And that man told, you at that time, that he would pay you the full .insurance that Mr. Figueroa (the driver), and Mr. York had in this case in the amount of five thousand dollars, didn’t he?” It is no pleasure for us to do so, but it is necessary that we record not only that it was defense counsel who in-j ected insurance into the case, but also that his irregular statement that the policy was limited to $5,000.00 was untrue. He argued to the jury that settling lawsuits ran up insurance rates. By the time the case was completed, counsel had jammed the record with evidence of prior claims and settlements for personal injuries, plaintiff’s Workmen’s Compensation, Blue Cross, possible pension rights, negotiations and offers to settle, and former fire losses and settlements. By the end of the trial, what was supposed to be out of the record, was neither in nor out. In this case, there is harmful error in good measure, pressed down, shaken together and running over.

As justification for this conduct, counsel points to some improper acts of the plaintiff’s attorney. Plaintiff’s counsel improperly told the court that defense counsel had twice been threatened with a jail sentence by judges in Houston. Defense counsel denied the statement. This was outside the presence of the jury. Another time plaintiff’s counsel objected to defense counsel’s efforts to “mislead the jury.” Plaintiff’s counsel on one occasion compared defense counsel’s tactics to Kruschev. Plaintiff’s counsel never again mentioned Kruschev, but defense counsel magnified it by mentioning it on four other occasions. We condemn the remark, but its presence in the record does not purify the record.

A motion in limine to exclude anticipated evidence may be presented to the court. The practice is approved in Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 560, overruled on other points in Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277. When the court-has ruled on a point, the same evidence should not again be offered in the presence of the jury. In re Boultinghouse’s Estate, Tex. Civ.App., 267 S.W.2d 614, 620; Sherwood v. Murray, Tex.Civ.App., 233 S.W.2d 879, 883; St. Louis, S. F. & T. R. Co. v. Knowles, 44 Tex.Civ.App. 172, 99 S.W. 867. Counsel may, so long as the judge permits, urge upon the court, out of the hearing of the jury, the correctness of his position. The presentation of excluded matter to the jury by suggestion, by the wording of a question, or by indirection, violates professional standards and counsel’s duty to the court. Canon 19, State Bar Rules, 1A Vernon’s Tex.Civ.Stats., p. 236. Matters excluded by reason of a lawful privilege are governed by the same rules. Having claimed it, one need not see it frittered away by repetitious re-offers of the same evidence or by questions calling upon the claimant to justify his reasons for invoking the privilege. Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291; McLaughlin v. Massachusetts Indemnity Ins. Co., 85 Ohio App. 511, 84 N.E.2d 114; 116 A.L.R. 1170; accord, Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244. There is a duty upon the court to rule decisively. McLellan v. Brownsville Land & Irrigation Co., 46 Tex.Civ.App. 249, 103 S.W. 206. When error creeps into the record, the court should instruct the jury to disregard it. Lucas v. Alsmeyer, Tex.Civ.App., 322 S.W.2d 19. The judge must do more. He must enforce his rulings. Violations of a court’s solemn rulings should “lead to serious consequences.” Ford v. Carpenter, supra. Counsel’s and the court’s attention is invited to Rule 269(g), Texas Rules of Civil Procedure.

The judgment of the trial court is reversed and the cause remanded.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Grace WARD, Appellee.
    No. 7212.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1963.
    Rehearing Denied Feb. 25, 1963.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    Clayton, Martin & Harris, Amarillo, for appellee.
   NORTHCUTT, Justice.

Grace Ward, as plaintiff, brought this action against State Farm Fire & Casualty Company, as defendant, to recover on a policy of fire insurance in the amount of $10,000. The parties hereafter will be referred to as plaintiff and defendant as they were in the trial court. On March 12, 1958, the defendant executed and delivered to the plaintiff a fire insurance policy in the sum of $10,000 for a period of five years commencing on the twelfth day of March 1959, and ending at noon standard time on March 12, 1963, insuring plaintiff against loss and damage by fire to one certain frame, two-family dwelling, residential structure, .residentially known as 1105 West 19th Avenue in the City of Amarillo, Potter County, Texas, and being described as being situated on Lot 3, Block 13 of Lake-view Addition to the City of Amarillo, Potter County, Texas. There is no question here about the premiums not being paid. Lot 3 was sold to the State of Texas with plaintiff retaining ownership of the building with the right to .remove the same. While the building was being transferred from Lot 3 to another location, it was destroyed or partially destroyed by fire.

It was the contention of defendant it was not liable under the terms of the policy because the policy provided it insured plaintiff “against direct loss from any other perils (listed below) which have a premium inserted opposite thereto and only on the property described and located as provided hereon” and that the policy contained no provision which would afford coverage while the property was located at another or different location. Defendant further contended it was not liable under the policy because the policy contained the following condition: “Unless otherwise provided in writing added hereto, this company shall not be liable for loss occurring (a, b, and c applicable only to coverage F-Fire); (a) while the hazard is increased by any means within the knowledge and control of the insured, provided such increase in hazard is not usual and incidental to the occupancy as hereon described.”

The plaintiff contended that before removing the dwelling from Lot 3, she called Lester E. McKinney, the local recording agent of defendant, being the agent who sold the policy to her, and explained to him about wanting to remove the house in question and asked him if her insurance would still be in force. That she told him, if not, she wanted to take out other insurance so she would be protected, and that McKinney assured her that the insurance would be in full force and effect, and by reason of such representations and assurances made by the agent to the plaintiff, the defendant was estopped from the truthfulness of such representations and assurances to the prejudice of the plaintiff.

Defendant contended that because the policy contained the provision that any changes made and perils added must be in writing properly executed by an authorized agent of the company and attached to the policy, and that no provision could be waived except such as by the terms of the policy was subject to change, it was not liable since this was not complied with. Defendant further pleaded Article 6.13 of the Texas Insurance Code, V.A.T.S., which was a part of the policy, was not applicable because the property in question constituted personal property and was not a total loss and Article 6.13 limited any recovery by plaintiff.

In reply to special issues submitted by the court the jury found the dwelling was a total loss as a result of the fire; that on the day of the fire the house had a reasonable cash market value in Potter County, Texas, of $6,000; that prior to moving the house the plaintiff contacted Lester E. McKinney regarding the removal of the house and that McKinney represented to the plaintiff that she would have insurance covering her house insuring it against fire loss during the period while it was being moved; ■ that plaintiff relied upon such representations as made to her by Lester E. McKinne}'' in moving her house; that the moving of the house from one location to the other in the manner described in the evidence increased the hazard of fire and such increased hazard was not usual and incidental to the residential occupancy described in the policy. Upon the verdict of the jury the court rendered judgment for the plaintiff for $6,000.

Both parties appealed from $ie judgment of the trial court. Since-plaintiff’s sole contention is that she was entitled to the full face value of the policy of $10,000, we will first consider plaintiff’s appeal. The policy contains Article 6.13 which provides in case of total loss by fire of property insured, the policy shall be held and considered to be a liquidated demand against the company for the full amount of such policy but that the provision of the article did not apply to personal property. If the dwelling had been burned while still located on Lot 3 as part of the real estate, then Article 6.13 would have applied. Since the jury found the dwelling was a total loss, the plaintiff would have been entitled to the $10,000 as liquidated demand. When the dwelling was severed and being moved from the realty, it was reimpressed with the character of personalty and Article 6.13 did not apply and the liquidated demand provision would not be determinative of the loss. The jury found the dwelling was a total loss and that it had a reasonable cash market value in Potter County, Texas, and that such value was $6,000. The plaintiff would not be entitled to recover more than the value of the dwelling since it was personal property. Lane v. Davis, Tex.Civ.App., 337 S.W.2d.292; Longino v. Wester, Tex.Civ.App., 88 S.W. 445 (writ refused). Plaintiff’s assignments of error are overruled.

The main contention of the defendant is that the trial court erred in not granting judgment for the defendant that plaintiff recover nothing because of the finding of the jury that the moving of the house from one location to the other increased the hazard for fire and that such increased hazard was not usual and incidental to the residential occupancy described in the policy. It is further contended the court erred in admitting testimony of Mrs. Ward with respect to her conversation with McKinney, over defendant’s objections, because such testimony amounted to McKinney’s construction of the contract (policy).

As to the other assignments of error, concerning no evidence, insufficient evidence, admissibility of evidence and insurable interest, we will not consider further other than to overrule them. Old Colony Insurance Company v. Messer, Tex.Civ.App., 328 S.W.2d 335 (NRE).

McKinney was the local recording agent of the defendant and executed the policy in question and had authority coextensive with that of the company insofar as writing insurance was concerned thereby removing all questions of the local agent’s actual or apparent authority from the field of dispute. Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59 and the many cases there cited.

The plaintiff testified before she removed such dwelling, she called and talked to McKinney and explained to him that she was going to remove such dwelling; that her insurance premium was due and she wanted to know if she would be covered by insurance if she removed the house and that he assured her that it would be covered with insurance — that she relied upon his assurances and mailed her check that afternoon for her premium. The check for the premium was cashed by the defendant. The jury found that plaintiff contacted McKinney .regarding the removal of such house and that McKinney represented to the plaintiff that she would have insurance covering her house insuring it against fire loss during the period while it was being moved and that plaintiff relied upon such representations. We are of the opinion that McKinney, local recording agent of defendant, had the authority to make such agreement. But should we be wrong in so holding, since plaintiff pleaded estoppel, the defendant would be estopped from denying such agent had that authority. International Fire Insurance Co. v. Black, Tex.Civ.App., 179 S.W. 534 (writ refused). Further, McKinney knew the house was going to be moved and defendant was chargeable with notice of whatever its agent writing the policy at the time of making such assurance that the policy would still be in effect knew. National Guaranty Fire Ins. Co. of Newark, N. J. v. King, Tex.Civ.App., 24 S.W.2d 501 (writ refused) .

It is quoted in the case of New York Fire Ins. Co. v. Reed, Tex.Civ.App., 138 S.W.2d 138 (writ refused) as follows:

"It is now well settled in Texas that a provision in an insurance policy that no condition or stipulation shall be waived except by a written indorsement attached to the policy is ineffectual to prevent a parol waiver of such provisions and conditions by an authorized agent acting within the scope of his authority. Morrison v. Insurance Co., 69 Tex. 353, 6 S.W. 605, 5 Am.St.Rep. 63; Wagner & Chabot v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S.W. 569; Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S.W. 1024. These cases are based on the proposition that an insurance corporation cannot thus limit its power subsequently to contract in any lawful manner by and through its authorized agents acting within the scope of their authority. For the same reason, a stipulation in the policy that only certain officers and agents named therein shall have the power to waive the conditions of the policy does not preclude an authorized agent, other than the officials named, acting within the scope of his authority, from effecting such a waiver. United States Fidelity & Guaranty Co. v. Taylor (Tex.Civ.App.) 11 S.W.(2d) 340 (writ ref.).”

The Supreme Court in the case of Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W.2d 59, quoting from and approving the holding in the Reed case, quoted as follows:

“In Home Insurance Company of New York v. Roberts, 129 Tex. 178, 100 S.W.2d 91 this Court construed Article 5062a, Vernon’s Ann.Tex.Statutes from which Article 21.14, Vernon’s Tex.Ins. Code was largely taken, and directly held that the authority of recording agents is found in the statute and was not subject to subsequent restriction even by contractual provisions contained in the policy itself. Following the Roberts case, Mr. Justice Folley speaking for the Court of Civil Appeals in New York Fire Insurance Company v. Reed, 138 S.W.2d 138, wr. ref. said:
“ ‘In making the appointment under Article 5062a the appellant placed its mantle of authority upon Casey’s (the local recording agent) shoulders and, in effect, held him out to the public as an agent authorized to “write, sign, ■execute- and deliver policies of insurance” and to bind the company “on insurance risks”, the terms of the policy to the contrary notwithstanding. Under his appointment Casey had as much authority with reference to insurance risks as any that could possibly have been bestowed by the appellant upon Floyd West & Co. (the general agent). As was said in the Roberts case, Casey “had the authority to speak and act for the company, and transact all the insurance business of the company which it was authorized to transact under its permit from the state”. What' more authority could Floyd West & Co. have had? We think it evident that in enacting article 5062a the Legislature no doubt had in mind just such circumstances as existed in the instant case. * * * Knowing no doubt that such circumstances as these oft-times worked undue hardships upon an unsuspecting public, the Legislature enacted a law whereby the public, in dealing with fire insurance agents, might have some statutory assurance of the agent’s authority to bind the company,’ ”

Finding no reversible error, the judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Marjorie Mary JONES et vir, Appellees.
    No. 3754.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 25, 1963.
    Rehearing Denied Feb. 22, 1963.

      Eplen, Daniel & Dickson, Abilene, for appellant.
    Brooks & Fergus, Abilene, for appellees.
   COLLINGS, Justice.

This is a workmen’s compensation case brought by Marjorie Mary Jones and her husband against United States Fidelity & Guaranty Company. Plaintiffs originally sought to recover for the loss of use of a leg by Mrs. Jones, alleged to have been suffered by reason of an accidental injury sustained in the course of her employment with Thorp’s, Inc., of Abilene. In an amended petition plaintiffs alleged injury to Mrs. Jones* left foot and left leg; that blood clots developed in the leg bringing about thrombo phlebitis, thereby causing damage to the left hip and lower part of tlie back, and causing her to be totally and permanently disabled.

Defendant answered by denying that Mrs. Jones sustained any injury while engaged in the course of her said employment, and further alleged that any incapacity she may have suffered was due solely to pre-existing disease or came into existence after and was wholly unconnected with her alleged injury.

The case was tried before a jury which found that Mrs. Jones sustained a personal injury on or about December 10, 1960; that such injury was the result of an accident, and sustained in the course of her employment with Thorp’s, Inc. of Abilene; that as a natural result of such injury Mrs. Jones sustained total incapacity for a period of 200 weeks. Judgment was entered for plaintiffs awarding compensation benefits for such incapacity in 'the sum of $6,255.12. United States Fidelity and Guaranty Company has appealed.

In appellant’s first and second points it is urged that the court erred in holding there was any evidence and, in the alternative, that there was sufficient evidence to show that Mrs. Jones sustained a personal injury in the course of her employment for which she was entitled to recover under the workmen’s compensation law.

The evidence shows that on December 10, 1960, Mrs. Jones was an employee of Thorp’s, Inc. in Abilene, Texas; that at that time she was fitting shoes for a customer and was sitting on a fitting stool furnished by her employer. The stool was 12 to 14 inches in height and had no arm rests so a person rising from it would be required to raise the entire weight of his body by the use of the feet and legs. Mrs. Jones was sitting sideways on the stool in a position in which her legs were tucked behind her. She started to get up from the stool to go to the back of the store for some shoes and the evidence indicates that when she was in the process of getting up she heard "something snap” and felt a sharp pain in her left heel. The shoe on that foot came off. Mrs. Jones testified that she hurt her heel when she got off the stool. She said that she thought at first that she had sprained her ankle. There was evidence to the effect that she cried out, complaining that her heel was hurt. The heel began to swell immediately and her husband came to the store and took her home. She later went to see Dr. Haynes and thereafter also saw Dr. Capps at the Dyess Air Force Base Hospital. Mrs. Jones gave a history to both of these doctors of getting up off a stool and hearing something snap and feeling a sharp pain in her heel at the time. Dr. Haynes testified that in his opinion Mrs. Jones had suffered either traumatic bursitis or a tear of the achilles tendon in her heel. Dr. Capps testified that it was his opinion that she had suffered a partial tearing away of the heel cord tendon.

Appellant contends in connection with its first two points that there were no facts in evidence and in the alternative that the evidence was insufficient to show that any accident occurred which caused damage or harm to Mrs. Jones’ heel and that the evidence also fails to show that the injury to Mrs. Jones’ heel, if any, originated in or had anything to do with her employer’s business, or was such that she was entitled to recover for under the Workmen’s Compensation Act.

Appellant’s first and second points are not well taken. The evidence shows that Mrs. Jones did sustain an injury to her heel while working for her employer. In Traders & General Insurance Company v. Weatherford, Tex.Civ.App., 124 S.W.2d 423, it was held that an injury could be the result of an accident, or that the injury, itself, might be the accident, and in the one case as well as the other be compensa-ble if disability resulted. In 1 C.J.S. Accident page 432, it is stated that the term accident “is often used to denote any unintended and unexpected loss or hurt apart from its cause, and if the cause is not known the loss or hurt itself would be called an accident.” In our opinion there is some evidence to support the findings that Mrs. Jones sustained a personal injury as alleged, and that such injury was the result of an accident. We also hold that such evidence is sufficient to support the verdict. The evidence as above briefly stated also shows that Mrs. Jones’ accidental injury was sustained in the course of her employment with Thorp’s, Inc., and was such that she was entitled to recover therefor under the Workmen’s Compensation Act.

In appellant’s third, fourth and fifth points it is contended that there were no pleadings, evidence or findings to the effect that the injury claimed to have been sustained to Mrs. Jones’ left foot extended to or affected other parts of her body so as to support the judgment for a general injury, and that the court erred in refusing to so hold. Appellant asserts that the only claimed injury is to the foot, which is a specific injury; that such an injury may become a general injury, but to establish a general injury in such cases the claimant must plead, prove and secure findings that the specific injury extended to and affected other parts of the body. Appellant contends that there were no pleadings to support a claim of general injury; that the evidence showed conclusively that the only injury, if any, sustained by Mrs. Jones was to her left foot and that other portions of her body were not affected except by such injury and her right to recovery was therefore limited to the loss of a foot for which no recovery was sought as a specific injury under plaintiffs’ pleadings, and that the court therefore erred in entering judgment for plaintiffs for a general injury. Appellant particularly contends that there were no facts in evidence from which it could be presumed that the accident, if any, caused phlebitis to set in as a natural result thereof, and that there were no facts from which it could be inferred or presumed that because of such phlebitis, if any, that blood clots naturally developed so as to cause thrombo phlebitis and ailments to other parts of her body as alleged and claimed by plaintiffs.

Appellant’s contention that there were no pleadings that the injury claimed to have been sustained to Mrs. Jones’ left foot extended to or affected other parts of her body is not well taken. Appellees alleged that Mrs. Jones’ left foot was injured; that because thereof blood clots developed in the leg bringing about thrombo phlebitis, and that as a result thereof there was damage to the left hip and lower part of the back causing her to be totally and permanently disabled.

We also overrule appellant’s contention that there was no evidence to the effect that the injury sustained to Mrs. Jones’ left foot extended to or affected other parts of her body. Both of the medical witnesses herein testified that Mrs. Jones suffered from thrombo phlebitis. The evidence indicates that this condition came into being after the injury to Mrs. Jones’ foot and in our opinion supports the conclusion that it naturally resulted from and because of the injury to her foot. There was evidence to the effect that because of her injury Mrs. Jones was placed in the hospital at Dyess Air Force Base and was treated; that she continued to complain because of pain, and that her foot and leg were put in a “postier splint.” There was evidence that during this period she complained of pain in the calf of her leg, and that swelling of her leg began to develop, together with increased pain on moving the foot up. Dr. Capps testified that this was one of the symptoms which you find when there is a clot in the deep vein; that Mrs. Jones was treated for thrombo phlebitis, which means an inflammation and clot formation in the deep vena system. There was evidence to the effect that some time thereafter she again went to the doctor complaining of pain in her ankle, leg and thigh and also up behind the leg where the sciatic nerve comes out of the back; that she was walking in a bent position with her knee and hip in a flexed or bent position and was unable to bring her foot up to a 90 degree angle. Mrs. Jones testified that she was in the hospital under Dr. Capps’ care for more than a month; that as a part of her treatment her leg was elevated and she was taking exercises with her leg until thrombo phlebitis set in; that she began to have pains “just like someone took a hot poker and went from the heel through the groin.” She stated that this pain was continuous and was so severe that she was unable to sleep. Dr. Haynes,’who also examined and treated Mrs. Jones, stated that he found she had pain in the left leg and hip joint; that in his opinion she could not work and that her trouble was not confined to the left leg but included the thigh and hip.

The evidence, in our opinion, constitutes some evidence of, and is sufficient to support the conclusion that the injury sustained to Mrs. Jones’ left foot extended to and affected other parts of her body so as to support the judgment for a general injury.

As heretofore indicated, the jury found that Mrs. Jones sustained a personal injury; that such injury was the result of an accident, was sustained in the course of her employment with Thorp’s, Inc., and that Mrs. Jones sustained temporary total incapacity for a period of two hundred weeks as a natural, result of said injury. No special issue was submitted or requested to be submitted which inquired whether the injury to Mrs. Jones’ foot had naturally extended to and affected her body generally and that such condition was the producing cause of her incapacity. Appellant contends that the findings of the jury will not support the judgment for a general injury; that since no issues were submitted or requested by appellees on the question of whether the injury to Mrs. Jones’ foot extended to and affected other parts of her body and were the producing cause of her incapacity, if any, that she has failed to meet the burden required of her under the Workmen’s Compensation Law of Texas to recover for a general injury.

Appellant’s contention concerning the insufficiency of the jury findings to support the judgment is not well taken. Appellees’ pleadings and the evidence as indicated are amply sufficient to support the judgment for a general injury. As pointed out by appellant, appellees by their amended pleading did not seek to recover upon the basis of a specific injury but sought only to recover for a general injury. In our opinion, it is obvious that the court was attempting to submit the case to the jury on the basis of a general injury, that is, whether Mrs. Jones sustained total incapacity because of a general injury and if so, the duration of such total incapacity. It is provided in Rule 279, Texas Rules of Civil Procedure that where a ground of recovery consists of more than one issue, if one or more of the issues necessary to sustain such ground of recovery and necessarily referable thereto, are submitted and answered by the jury, and one or more of such issues are omitted, without any request therefor or objection, and there is evidence to support a finding thereon, the court, at the request of either party may make and file written findings on such omitted issue or issues in support of the judgment, but if no such written findings are made, such omitted issue or issues shall be deemed, as found by the court, in such manner as to support the judgment. In the instant case appellees’ ground of recovery for a general injury did consist of more than one issue. Some of the issues were submitted .and found by the jury in a manner favorable to Mrs. Jones’ right to recover. Spe- : cifically it was found that Mrs. Jones sustained a personal injury and as a natural result sustained total incapacity for a period of two hundred weeks. Other issues bearing upon such “ground of recovery” were omitted without request or objection, nor was there any written findings filed by the court on such omitted issues; nor was there any request therefor. Under these circumstances Rule 279 requires that such omitted issues be deemed as found by the court in such manner as to support the judgment. Austin v. Austin, 174 S.W.2d 1010, affirmed 143 Tex. 29, 182 S.W.2d 355; General Accident Fire And Life Assurance Corp. v. Murphy, 339 S.W.2d 392, (Ref. N.R.E.).

In appellant’s sixth point it is contended that the court erred in permitting appellees to file a' trial amendment on the day that the case went to trial'changing the alleged date of the accident in question from December 27, 1960, to that of December 10, 1960, and in refusing appellant the right to withdraw its announcement of ready for trial. The matter of permitting a party to file a trial amendment is largely within the discretion of the trial court and • the action of the court in such cases will not be disturbed unless the complaining party shows an abuse of discretion. Texas Employers Insurance Ass’n v. Sanders, Tex.Civ.App., 265 S.W.2d 219. In our opinion appellant has failed to show that it was. prejudiced in any way by the trial amendment and has therefore failed to show an abuse of discretion on the part of the trial court.

The judgment is affirmed.


author: POPE, Justice.

text:
    INVESTORS ROYALTY COMPANY, Inc., et al., Appellants, v. CHILDRENS HOSPITAL MEDICAL CENTER et al., Appellees.
    No. 14040.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1963.
    Rehearing Denied Feb. 20, 1963.
    Jones & Fly, San Antonio, McNeill & McNeill, Tulsa, Okl., for appellants.
    Matthews, Nowlin, Macfarlane & Barrett, San Antonio, Storey, Armstrong & Steger, Dallas, for appellees.
   POPE, Justice.

We withdraw our former opinion. Plaintiffs, the Childrens Hospital Medical Center and others, sued Investors Royalty Company,. Inc., and others, for a declaratory judgment that a term royalty deed had terminated,, and the trial court so held. The case was-' tried upon agreed facts. No one eontends-that the instrument is ambiguous. In our opinion the term royalty had expired.

Two instruments are involved, an oil and gas lease and the term royalty deed. The lease was first executed and delivered by Clara Briam to Moore Development Company. It was dated April 17, 1940⅛ and covered 1,861 acres of Live Oak County, Texas, land. Plaintiff Hospital is successor to the rights of Briam, the lessor. Defendant Royalty Company is successor to the rights of Moore Development Company, the lessee. All parties conceded that the oil and gas lease is still in force. Actual production existed until July, 1958, when the well stopped producing. It was plugged and abandoned in September, 1958. In September, 1957, before actual production ceased, a gas well capable of producing gas in commercial quantities was completed. As permitted by the terms of the lease, the gas well was shut in for lack of a market. In January, 1959, a second producing gas well was completed and it too was shut in. Shut-in royalty was timely paid and the lease, therefore, continued in force. In September, 1959, both gas wells were connected to a pipe line and actual production has continued since that time. From these facts, it is seen that there was a period from August, 1958, to September, 1959, when there was no actual production, but there was substitute production under the terms of the lease.

The term royalty deed is the other instrument, and the one which we must construe. It was from the same grantor, Clara Briam, was to the same grantee, Moore Development Company, and was for a fractional royalty to the same land described by the lease. Plaintiff Hospital and Defendant Royalty Company are also the respective successors of their rights under that deed. Since the terms of the royalty deed are controlling, we shall state the pertinent portions. Briam, the grantor, conveyed (1)“an undivided one-half (¿4) interest in and to all of the oil royalty, gas royalty, and royalty in casinghead gas, gasoline, and royalty in other minerals in and under, and that may be produced and mined from the following described lands situated in the County of Live Oak and State of Texas. (Here follows a description of lands. They are the same lands described in the earlier lease between the same parties.)

(2) “These lands are more particularly described by metes and bounds in a mineral lease from Mrs. Clara Briam to Moore Development Company covering the same parcels of land, said lease being dated April 17, 1940, * * *

(3) “ * * * This grant shall run, and the rights, titles and privileges hereby granted shall extend to Grantee herein, and to Grantee’s heirs, administrators, executors and assigns, for a period of fifteen (15) years from date hereof and as long thereafter as oil, gas or other minerals, or either of them is produced or mined from the lands described herein, in paying or commercial quantities. If at the expiration of said fifteen (15) years from date hereof, oil, gas or other minerals, or either of them, is not being produced or mined from said land or any portion thereof in paying or commercial quantities, this contract shall be null and void and the Grantee’s rights hereunder shall terminate.

(4) “Said lands, or portions thereof, being now under oil and gas lease executed in favor of Moore Development Company it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one-half ((4) of all the oil royalty, and gas royalty, and casing-head gas and gasoline royalty, and royalty from other minerals or products, due and to be paid under the terms of said leases. ⅜ ⅜ *

(5) Provision is made for a minimum royalty which the grantor must require with respect to any future oil and gas leases.

(6) “TO HAVE AND TO HOLD the above described property and rights, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Grantee, and to Grantee’s heirs, administrators, executors and assigns, forever, * * *."

Plaintiff Hospital contended below and the court held, that paragraph (3) of the term royalty deed limited the term for fifteen years, plus such time as there was actual production thereafter. Actual production continued until July of 1958. The production which paragraph (3) requires is actual production. Archer County v. Webb, 161 Tex. 210, 338 S.W.2d 423; Freeman v. Magnolia Petroleum Company, 141 Tex. 274, 171 S.W.2d 339; Garcia v. King, 139 Tex. 578, 164 S.W.2d 509; Holland v. Vela de Pena, Tex.Civ.App., 343 S.W.2d 750; Sellers v. Breidenbach, Tex.Civ.App., 300 S.W.2d 178, 179. When we look to that paragraph, the term royalty deed terminated after fifteen years plus the period of actual production. The shut-in royalty was paid under the terms of the lease, for a period of thirteen months. During that time there was no actual production. As we understand Archer County v. Webb, supra, this was not a mere temporary cessation of actual production.

Defendant Royalty Company contends that the trial court was wrong because paragraph (4) conveyed something more, in that it extended the fifteen-year term for such length of time as the pre-existing lease continued, even though it was by shut-in royalty as substitute production. Kokernot v. Caldwell, Tex.Civ.App., 231 S.W.2d 528, concerned a twenty-year term-royalty deed with the same provision as that contained in paragraph (4) of the royalty deed in this case. The Court held that paragraph (4) did not fix a different duration or add to the term of the granting clause. In that case, as here, the Court was concerned with time, <or duration of the term.

Hoffman v. Magnolia Petroleum Co., Tex.Com.App., 273 S.W. 828, is the basis for defendants' contention that the term royalty endured even beyond fifteen years plus the period of actual production. That case was not concerned with time but the quantum of land covered by the lease and the term royalty. In Kokernot v. Caldwell, the Court distinguished Hoffman v. Magnolia, and the Supreme Court refused a writ. We do not find that Kokernot has ever been overruled. Case—Pomeroy Oil Corporation v. Pure Oil Company, Tex.Civ.App., 279 S.W.2d 886.

We therefore affirm the judgment of the trial court.

      . Numerals are ours.


author: RENFRO, Justice:

text:
    J. W. LANCASTER, Appellant, v. George L. McLENDON, Jr., et ux., Appellees.
    No. 16397.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 18, 1963.

      Crocker & McDonald, and Toy Crocker, Cantey, Hanger, Johnson, Scarborough & Gooch, and R. Daniel Settle, Fort Worth, for appellant.
    Donald C. Bubar and Melvin F. Adler, Fort Worth, for appellees.
   RENFRO, Justice:

J. W. Lancaster sued George L. McLen-don, Jr., and wife for damages for breach of contract to exchange property. Defendants filed a cross-action.

After verdict was returned, which found that plaintiff did not have a fixed intention to repudiate the contract, failed to answer the issue as to whether defendants had a fixed intention to repudiate the contract, and made findings as to the value of the respective properties, plaintiff filed motion for judgment on the verdict and for judgment notwithstanding the verdict. Defendants filed a motion for judgment notwithstanding the verdict. Their motion was sustained and judgment entered denying relief to either party.

Prior to February 5, 1957, plaintiff had entered into a written agreement with Fred “Red” Harris which gave plaintiff an option to purchase from Harris the Cebolla River Ranch in New Mexico. The last day for the exercise of the option by plaintiff was February 11, 1957. The contract provided for either an abstract or a title policy.

On February 5, 1957, the McLendons by written instrument (which recited “having in hand a copy of the Exchange Contract between Fred Red Flarris of New Mexico, and J. W. Lancaster of Fort Worth, dated January 4th, 1957, * * * ”) described the New Mexico ranch, and agreed to convey to Harris or Lancaster, as directed by Rattikin Title Company, a certain described tract of land owned by defendants in Tarrant County in exchange for the Cebolla Ranch. In addition, the defendants agreed to pay $13,-000 cash.

Defendants agreed to abide by the standard print provisions as to prorations, titles, forfeits, rights, etc., set out in the existing contract between Harris and Lancaster.

All instruments pertaining to the respective properties were to be executed at once in the office of Rattikin Title Company and held by said Company until defendants paid the $13;000 on or before March 11,, 1957.

On February 7, Harris conveyed the Ce-bolla Ranch to Lancaster. On February 11,. Lancaster executed a deed conveying the-Cebolla Ranch to defendants. The defendants executed a deed to plaintiff conveying, the Fort Worth property. The conveyances were left with Rattikin Title Company to-be delivered on March 11, when defendants were to pay the $13,000 cash.

On March 11, the McLendons and their attorneys, and Lancaster and his attorney-met in the office of Alvin Botts, attorney for Rattikin, to close the transaction. Defendants’ attorneys refused to accept the standard form title policy, whereon Botts arranged for the issuance of a New Mexico form of title policy which defendants desired.. Defendants’ attorneys then made various-requirements pertaining to the title to the Cebolla Ranch.

' As a result of the discussions defendants, refused to pay the $13,000 cash consideration, and the trade was not consummated.

In the motion for judgment non obstante,, the grounds set out by defendants for judgment were: * * * the undisputed evi•dence by Alvin Botts was that had he known on that date that on February 11, 1957, the date on which Plaintiff signed and acknowledged the deed before him, the plaintiff was not in fact a single man, as stated in the deed and acknowledgment, but was married and was being sued for divorce, said Ratti-kin Title Company would not have issued the title policy on the New Mexico land, and * * * the jury’s findings on reasonable market value show that Defendants, and not Plaintiff, were the losers of the bargain, * *

The record shows that on December 13, 1956, plaintiff and his then wife, in contemplation of divorce, entered into a written property settlement in which the wife agreed to accept certain designated property and relinquish all interest to plaintiff in all other community property.

A divorce was granted to the then Mrs. Lancaster from plaintiff on February 21, 1957, in the district court of Van Zandt County, in which the property settlement was approved.

As a witness at the trial, Botts was asked by defendants’ counsel: “Now, had you known on February 11 that J. W. Lancaster was a married man at the time he contracted to buy this property on January the fourth, and at the time he was acquiring it from Fred ‘Red’ Harris on February the eleventh, and at the time he was claiming to be tendering performance on March the fourth (counsel stipulated the date should be March 11), had you known at that time not only that he was a married man,, but that a divorce suit was then pending between him and his wife, would you, under those circumstances, have been willing to have issued any kind of an owner’s policy whatever to George McLendon on this transaction, without first getting some deed signed by his wife? A. No.”

Mr. Botts testified that he would not have taken plaintiff’s acknowledgment as a single man on February 11 had he known plaintiff was then a married man, but he testified further he satisfied himself that plaintiff was a single man on March 11 and he, for Rattikin, was prepared to issue a title policy. In fact there is no dispute as to Botts’ readiness to issue the exact type of title policy defendants desired on March 11.

It is obvious his “No” answer to the question by defendants’ counsel was based on the assumption, contained in the question, that plaintiff was a married man on March 11, an assumption which is contrary to the undisputed evidence. -

Since Botts knew on March 11 that plaintiff was a single man and was willing to issue the type of title policy desired by defendants, the motion for judgment notwithstanding the verdict on the ground Botts would not have issued a title policy had he known plaintiff was a married man on March 11 was not a proper ground for judgment.

We think, however, the judgment must be sustained on that part of the motion to the effect that the jury’s findings on reasonable market value show that plaintiff lost nothing by this transaction.

The jury found the value of the Cebolla Ranch to be $80,000, and the value of the McLendon place to be $67,000 as of March 11,1957. Taking into consideration the cash payment which plaintiff would have received and the mortgages against the respective properties, the plaintiff would have conveyed property of the value of $68,500 for exchange of property and money in the amount of $66,000; hence, he would have lost in money value the amount of $2,500 if the trade had been consummated.

This was not a suit for specific performance.

Plaintiff’s measure of damages was the difference between what he had and what he would have received from defendants. Under the jury’s findings and the undisputed evidence as to the amount of the mortgages, plaintiff suffered no loss by reason of defendants’ failure to consummate the trade

Plaintiff alleged he was damaged because, he, relying upon defendants’ representations they would go through with the deal with him, incurred certain obligations in order to acquire the Cebolla Ranch, and that due to the failure of defendants to consummate the trade with him, he was forced to sell the ranch at a loss.

Issues were requested and refused inquiring of the jury as to damages thereby sustained by plaintiff. We have studied the 800 pages of oral testimony and the volume of exhibits and have concluded, in the light of the whole record, that reversible error is not shown by reason of the refusal of the Court to submit said issues.

At the March 11th meeting defendants made certain title requirements. Both sides have presented able briefs setting out the respective rights of buyer and seller where a title policy is to be issued.

Under our disposition of the appeal, we think it neither necessary nor proper to pass on such questions.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Walter HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 8, 1963.
    Walter Howard, appellant, LaGrange, pro se.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

On the night of July 30, 1960, two men broke into the home of Watt Roberts and his wife, Nannie, which was located in a remote section of Leslie County. They brutally attacked and injured them with a club and took Mrs. Roberts’ purse which contained $190. Bobby Napier and appellant, Walter Howard, were charged by indictment with the offense of armed robbery.

They were tried separately, but the instructions given in both cases were the same. Both Napier and appellant Howard were found guilty and sentenced to confinement in the penitentiary for a period of 21 years. The judgment in Howard’s case was entered on March 24, 1961.

Napier, in time, appealed his judgment of conviction to this court where, on April 20, 1962, the judgment was reversed and a new trial ordered on the ground that an instruction given at the trial was erroneous.

Appellant, Howard, did not attempt to appeal his judgment of conviction. However, on May 14, 1962, and after the opinion in the Napier case was handed down, Howard filed a motion to vacate the judgment of March 24, 1961, on the ground that the court had erred in instructing the jury and • the judgment was void. It was averred that Howard was proceeding under the provisions of subsections (5) and (6) of CR 60.02.

We are faced, therefore, with the question as to whether a motion to vacate a judgment under CR 60.02 may be used as a substitute for an appeal in a case where an error has occurred during the trial.

We do not agree with appellant’s assumption that an error in the instructions .given during the original trial of his case rendered the judgment void. It i's not suggested that the circuit court did not have jurisdiction of the subject matter or of the person in that trial and an error in the in■structions rendered the judgment only erroneous. It has long been the policy of this •court that errors occurring during the trial should be corrected on direct appeal, and the grounds' set forth under the various subsections of CR 60.02 deal with extraordinary situations which do not as a rule appear during the progress 'of a trial. Although the rule does permit a direct attack by motion where the judgment is voidable — as distinguished from a void judgment — this direct attack is limited to the specific subsections set out in said rule, none of which appears to be .applicable here unless it falls tinder the residual subsection (6) which authorizes the court to,grant relief when circumstances of undue hardship, not included in the other five grounds of the rule, would justify such relief. However, this subsection may be invoked only under the most unusual circumstances and we do not find the facts here to be unusual.

In many cases errors of some nature are committed during the course of a trial and unless there is a restriction upon the method ■and the time in which these errors are suggested and corrected, a chaotic situation would result. Few judgments would ever .achieve finality.

In Hamm v. Mansfield, Ky., 317 S.W.2d 172, certiorari denied, 359 U.S. 928, 79 S.Ct. 611, 3 L.Ed.2d 630, where appellant sought relief under CR 60.02 of a nature recognized under coram nobis principles, it was held that appellant’s failure to present certain grounds for relief on the original appeal denied to him the right to relief upon those same grounds on a motion to vacate the judgment.

The law of this state is not different from that of the United States. Under Section 2255, Title 28 U.S.C.A., a prisoner under certain circumstances may move to vacate a judgment or to set aside a sentence which has been imposed upon him. In United States of America v. Cornett, D.C., 142 F.Supp. 764, it was pointed out by Judge Shclbourne that where such a motion raised only questions which properly could have been raised on an appeal, the motion would not lie. He stated:

“The defendant in this case, repre- ■ sented by competent counsel of his. own selection and employment, accepted the judgment of conviction and did not prosecute an appeal. Hence, the doctrine of the Sunal case is applicable, that is, Section 2255 of Title 28 can not be the means of affording a substitute for an appeal.”

The opinion quoted with approval this language of the Supreme Court in the case of Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, 1984:

“It is not uncommon after a trial is ended and the time for appeal has passed to discover that a shift in the law or the impact of a new decision has given increased relevance to a point made at the trial but not pursued on appeal. Cf. Warring v. Colpoys, supra (74 App.D.C. 303, 122 F.2d 642, 136 A.L.R. 1025). If in such circumstances, habeas corpus could be used to correct the error, the writ would become a delayed motion for a new trial, renewed from time to time as the legal climate changed. Error which was not deemed sufficiently adequate to warrant an appeal would acquire new implications. Every error is potentially reversible er'ror; and many rulings of the trial court spell the difference between conviction and acquittal. If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.”

In Phelan v. Bradbury Building Corporation, D.C., 7 F.R.D., 429, it was held that even change in interpretation of law subsequent to the entry of a judgment is not cause for the vacation of that judgment.

We are of opinion that the circuit court properly overruled the motion to set aside the judgment under CR 60.02.

The judgment is therefore affirmed.


author: C. WARRAN EATON, Special Commissioner.

text:
    Ben Frank EDESTER and Ersie Edester, Appellants, v. Arch L. HEADY, Sr., Anna L. Heady, Arch L. Heady, Jr. and Virginia Heady dba Arch L. Heady & Son, Appellees.
    Court of Appeals of Kentucky.
    Feb. 8, 1963.

      William A. Miller, Miller & Howard, Louisville, for appellants.
    Victor W. Ewen, Jones, Ewen & Mac-Kenzie, Louisville, for appellees.
   C. WARRAN EATON, Special Commissioner.

Ben Frank Edester and his wife, Ersie Edester, plaintiffs in the lower court, filed their joint complaint to recover damages which each sustained in a motor vehicle accident. Mrs. Edester was a passenger in the automobile owned and operated by Mr. Edester. In response to the plaintiffs’ complaint the defendants below filed an answer añd counterclaim against Ben Frank Edes-ter asking that they have contribution against Mr. Edester on any judgment which Mrs. Edester might recover against them. Thereafter the plaintiffs filed a motion requesting, among other things, that their action be severed and separate trials granted; that defendants’ counterclaim be stricken; that if the counterclaim be disregarded as a claim and denominated a third-party complaint, then separate trials be granted; that the counterclaim be dismissed because it was not asserted in the name of the real party in interest, to-wit, the defendants’ liability insurance carrier; and finally that the counterclaim be dismissed because the defendants by signing a release had released and discharged Mr. Edester from all claims and demands, including this claim for contribution.

The lower court declined to strike or dismiss the counterclaim, refused to grant a separation or separate trials, declined to make defendants’ liability insurance company a party, and ordered the counterclaim to be considered as a third-party complaint against Mr. Edester on Mrs. Edester’s claim, and the case tried as to all issues presented by the pleadings. The jury returned a verdict in favor of Mrs. Edester for $2,000.00 and held against Mr. Edester on his claim. Following the verdict there was’ put in the record the fact that Mrs. Edester had been paid the sum of $435.00 by settlement with her husband’s liability insurance company and final judgment as entered herein awarded Mrs. Edester the sum of $2,000.00 subject to a credit of $435.00, awarded her her costs, and said judgment further provided that the defendants recover from Mr. Edester the sum of $1,000 (half of the $2,000.00 judgment), subject to the aforesaid credit of $435.00.

■ The Appellant Ben Frank Edester raises on this appeal the following three questions: (1) Did the release and indemnifying agreement referred to in the record bar Heady’s claim for contribution against Edester? (2) Was Heady’s claim for contribution properly asserted as a counterclaim or third-party complaint, and if so, did the Court err in refusing to sever the cases of Ben Frank Edester and Mrs. Ersie Edester against Heady and grant separate trials ? (3) Should the Court have required Heady to joint his liability insurance company as a necessary and proper party?

As to the first question concerning the release and indemnifying agreement, the Panel is of the opinion that the release would be governed by the same ruling as was declared by the Court of Appeals in the case of Leitner v. Hawkins, 311 Ky. 300, 223 S.W.2d 988, wherein the Court held that the release only went to release a present right and therefore did not release a subsequently maturing claim for contribution. The Court in the Leitner case stated, “The release purports no such meaning or intent, and we would be going far afield so to declare.” As was pointed out in Appellees’ brief:

“Had the insurance company which prepared this release which its adjuster had Heady execute intended that Heady should protect it and Ben Frank Edester against the claims of Mrs. Edester, and had it in turn disclosed to Arch Heady that such effect was intended, this instrument would have been explicit on the point and would have made some reference to the claims ■of others and not only to those of Heady. We do not believe that the Court will add to this instrument the words which would be necessary to give it the import urged by Appellant.”

The points raised on this appeal hy Question (2) referred to above have ■caused the Panel the greatest concern. Although the Appellant in his question raised the point as to the propriety of considering the counterclaim as a third-party complaint, ■neither the Appellant nor the Appellee in their briefs argued the question of whether ■or not the Court properly under CR 14.01 elected to consider the counterclaim as a third-party complaint. This rule governing third-party practice refers to “a person mot a party to the action” as being a proper subject of a third-party complaint and sets forth the procedure for bringing- such a person into the action. One method of achieving this end as in the present case where the proposed third-party defendant is a joint plaintiff would be to sever the claims and then permit the defendants to file a third-party complaint against Mr. Edester. It occurs to the Panel that the lower court did by direction what could have been done by indirection, that is, he elected to treat the claim of Mrs. Edester as a cause of action and Mr. Edester’s claim as a cause of action without severance and thus permitted the plaintiffs’ counterclaim to be considered as a third-party complaint against him. The result in procedure which the lower court reached would be identical to that which it would reach had it actually severed the two claims and then permitted the third-party complaint to be filed as provided under CR 14.01. The Panel is of the opinion that technically speaking, Mr. Edester was not a party to his wife’s action and that he should have been subject to being a third-party defendant as to her claim. This then brings to focus the other procedural question as to whether the. Court should have granted separate trials, and since this is a matter within the discretion of the lower court and the discretion in this case does not seem to have been abused in any way, the Panel is of the opinion that the lower court properly refused plaintiffs’ motion for severance and separate trials inasmuch as all of these issues were proper-, ly triable at one time and arose out of the same accident. Also in regard to this question, it should be noted that the plaintiffs below seem reconciled to the fact that the lower court had the right to considfer this counterclaim as a third-party complaint because in their motion below they requested separate trials if the counterclaim be dismissed as such and denominated a third-party complaint. Perhaps the rule as to third-party practice should be modified so as to specifically permit a defendant to name a joint plaintiff as a third-party defendant, but even without such change in the rule we are of the .opinion that the Court properly ruled as it did in the interest of avoiding unnecessary costs, delays and further litigation.

The third point raised by Appellant is presented by Question (3) referred to above and needs very little comment. The Panel feels that the question was properly answered by the cited case of Mayer et al. v. Dickerson et al., Ky., 321 S.W.2d 56. The defendants’ liability insurance carrier not having incurred any liability because no judgment had at that time been entered, certainly was not a real party in interest and to have required such company to have- been a party to this litigation would have been contrary to previous rulings of the Court of Appeals that any evidence of the liability insurance would., be- improper and grounds for a new trial because of its prejudicial character.

The Panel, finding no prejudicial error and being of a unanimous opinion in this case, judgment is accordingly affirmed.

The opinion is approved by the Court.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jack RAYBOURNE, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 8, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellants.
    W. Earl Dean, Harrodsburg, Joseph Polin, Springfield, for appellee.
   CULLEN, Commissioner.

This is a highway condemnation case in which the jury in circuit court returned .a verdict awarding $3096 for the land taken and $6,910 for damages to the remainder. The Commonwealth, Department of Highways, has appealed from the judgment on the verdict, contending that the award for damages to the remainder is excessive and not supported by probative evidence.

The appellees’ 265-acre farm fronted for .a distance of 913 feet on U. S. Highway 150. The condemnation took a strip 135 feet wide across the front part of the farm for the purpose of reconstructing and relocating the highway. A 2.37-acre, triangular-shaped parcel, fronting on the old highway, was separated from the rest of the farm by the new right of way. The old highway will remain open for travel in front of the separated parcel and will connect with the new highway at one end of the parcel. All witnesses agreed that the principal value of the separated parcel was for commercial or residential lots.

The witnesses for the Commonwealth testified that there was no resulting damage to the separated parcel, and one of the witnesses for the landowners said it was damaged only $500. But one witness for the landowners testified that the parcel was damaged $2950 and one of the landowners said the damage was $4000.

The latter two witnesses gave two bases for their estimates of damage. One was that there would be a cut along the new right of way which would prevent access to the new highway from the lots. This was not a valid element of damage because, there being reasonable access to the old highway, the landowners had no property right of access to the new road. Smick v. Commonwealth, Ky., 268 S.W.2d 424; Department of Highways v. Jackson, Ky., 302 S.W.2d 373; Commonwealth, Department of Highways v. Carlisle, Ky., 363 S.W.2d 104 (decided December 14, 1962). Also, the fact that traffic would be diverted from the old road to the new is not a basis for damages. DeRossette v. Jefferson County, 288 Ky. 407, 156 S.W.2d 165; Commonwealth, Department of Highways v. Carlisle, supra; 5 Nichols, Eminent Domain, sec. 16.101(5).

The second basis for damages given by the two witnesses was that, by reason of lack of depth, a portion of the separated parcel had a reduced value for lot purposes. They computed the damages on the basis of percentages of a desirable lot depth. For example, at one end of the separated parcel, where the depth was only 55 feet, one of the witnesses said that the value had been reduced 75 percent, so he computed that the original potential lot with a value of $1000 had been damaged to the extent of $750. The trouble with this is that the landowners had already been allowed compensation in the award for the land taken, for the land that would have added the necessary depth to the 55-foot lot. In other words, if the back 75% of a lot is taken, and paid for, the landowner should not recover again, in the form of resulting damages, another 75% of the potential lot value. To do so would allow 150% recovery.

It may be that if 75% of a lot were taken so as to render valueless, because of its smallness, the remaining 25%, the owner should be paid the full value of the lot. But he cannot be paid the value of the part taken and be awarded that value again as damages to the remainder.

The Commonwealth did not object to the testimony of the landowners’ witnesses concerning damages to the separated parcel. But the lack of objections could not impart probative value to the testimony. Not having a reasonable and valid basis, the testimony did not have sufficient probative value to support an award of damages in the amount estimated by these witnesses. See Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507, 224 S.W.2d 660; Petroleum Exploration, Inc. v. Hensley, 313 Ky. 98, 230 S.W.2d 464; Tennessee Gas & Transmission Co. v. Teater, Ky., 252 S.W.2d 674.

Remainder damages also were claimed with respect to the main farm. A witness for the Commonwealth estimated these damages at $2000. The landowners’ witnesses fixed the damages in the neighborhood of $9,000. The damages were based on a reduction of market value resulting from a less attractive appearance of the farm.

Along the front of the main farm the new highway will be constructed on a fill, at some points 14 feet above the ground level of the farm. This is one factor that the witnesses said would impair the attractiveness of the farm, notwithstanding that the farm residence was 600 feet back from the highway. One of the landowners also said that the view of the farm from the highway would be impaired by a cut along the front of the farm, but the evidence does not show any such cut. It appears he was referring to a cut down the highway in front of adjoining property, which of course could not be considered as an element of compensable damage to this farm.

Another factor affecting attractiveness was related to a natural drain across the front of the farm near the new right of way line. The evidence was that because of the existence of the drain it would be difficult to put a fence along the right of way line, and if the fence were put on the inside of the drain the intervening plot could not be mowed by machine and therefore might grow up in weeds and brush so as to present an unattractive appearance.

The Commonwealth maintains that damages due to aesthetic considerations are not allowable. This proposition has met with varied reactions from the courts. See Nichols, Eminent Domain, Vol. 4, sec. 14.-243, p. 583. Our Court has recognized aesthetic considerations to the extent of holding that recovery may be had for a diminution of market value of residential property attributable to proximity of the highway to the residence, where the right of way for the highway was being taken by condemnation from the owner of the residence. See Commonwealth Dept. of Highways v. Clarke, Ky., 340 S.W.2d 442. On the other hand, in City of Covington v. Greenburg, 242 Ky. 797, 47 S.W.2d 723, it was held that an owner of residential property could not recover for a diminution in the value of his property from a change of street grade which cut off his view across the street and produced an unsightly elevation in the street. Probably the distinction rests in the fact that in the latter case no portion of the abutting owner’s land was taken.

It is our opinion that any depreciation in market value of the remaining land of a person directly attributable to a taking of a portion of his land may be recovered, even where the depreciation is due solely to aesthetic factors. We see no difference in this from allowing damages for depreciated value from fear of explosion of a gas pipe line. See Gulledge v. Texas Gas & Transmission Corp., Ky., 256 S.W.2d 349. However, since aesthetic factors are so intangible and variable, we think strong proof of damages from those factors should be required.

Here the proof is not at all satisfactory. The landowner attributed part of the damage to a nonexistent cut. One of the witnesses, when asked on what he based his estimate of almost $9000 damages to the main farm, said only this:

“Well, I based it on the fact of the fills and cuts, changing the highway in respect to the farm.”

The other witness for the landowners gave as his only reason for resulting damage to the main farm (aside from the inability to mow along the fence) that “On the side next to the residence, you have a fill all the way across.”

In our opinion the estimates by the witnesses for the landowners of resulting damages to the main farm are so extravagant as to be unacceptable to support the amount of damages awarded. It is true that some appreciable damages may be attributable to the situation along the drain near the right of way line, but certainly not to the extent of several thousand dollars. We do not see how the appearance of the farm from the highway could be made substantially less attractive merely because the highway is somewhat higher than before. And as concerns the view from the residence toward the highway it would seem that little if any damage could result from the unsightly appearance of the fill, since the highway is 600 feet from the residence.

The award of $6,910 for resulting damages covered damages to the separated parcel and to the main farm. No substantial part of the award can be justified as damages to the separated parcel, and the evidence will not support an award of the amount given for damages to the main farm. Accordingly, we hold that the award is excessive.

The judgment is reversed for further proceedings in conformity with this opinion.

STEWART, C. J., dissents from so much of the opinion as holds that damages attributable to aesthetic considerations may be allowed.


author: MAUGHMER, Commissioner.

text:
    Kenneth H. DICK and Marvalee Dick, Respondents, v. R. A. POTTS, d/b/a Potts Construction Company, Appellant.
    No. 23664.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.
    ■William F. Brown, James E. Durley, Sedalia, for appellant.
    W. K. Gibson and Martin, Gibson & ■ Gardner, Sedalia, for respondents.
   MAUGHMER, Commissioner.

Plaintiffs had a verdict and judgment ■ against defendant in the amount of $700 for damages allegedly sustained by reason of breach of warranty covering a roof installed by defendant on plaintiffs’ house. The sole issue preserved on appeal is whether or not the court erred in overruling defendant’s motion for directed verdict at the close of all the evidence.

The plaintiffs, Kenneth H. and Marvalee Dick, husband and wife, during the' year 1953, built a residence on a lot owned by them in Sedalia, Missouri. Mr. Dick said he had been a “builder” of houses for about six years, but had never worked with roofing materials, nor was he a “roofer”. The Dick residence was a six-room house with an attached garage. It was to be constructed with a flat roof and after some negotiations such a roof was purchased from defendant. This particular roof was described as a “Johns-Manville Specification 15 year Tar Saturated Built Up Roof”. It was applied or put on plaintiffs’ residence by defendant, who was paid the full contract price. Defendant gave plaintiffs a written warranty or Roof Guarantee which reads:

“Potts
“BUILDING SUPPLY
“IF YOUR ROOF LEAKS DON’T GET A BUCKET GET POTTS
“Phone 396
“SEDALIA, MISSOURI
“August 24th. 1953.
“ROOF GUARANTEE.
“This is to certify that the Potts Construction Co. 420 W. 16th, St. Sedalia, Mo. applied a Johns-Manville Specification 15 Year Tar Saturated Built Up Roof on residence for Kenneth Dick, located 1617 W. 18th. St. Sedalia, Mo. And the said Potts Construction Co. does hereby on this 24th. day of August 1953, guarantees said roof for a period of 15 years, against defective materials or workmanship. In accordance with Johns-Manville Specifications.
“Signed, Potts Construction Co.
“by, R. A. Potts
“Title, Owner”.

Kenneth Dick testified that two weeks after installation the roof leaked “where the garage and living room join” and he had to replace a section of the ceiling. He said defendant “came out and repaired the roof”. It was his testimony that about two years later more leaks developed, that “the ceiling broke loose in the den”, that “he punched holes in the plaster to let the water through. We would try to catch it in pails to keep it from ruining the floor”. Once more defendant, Mr. Potts, came out and repaired, but it broke through again. He stated that thereafter roof water came through into every room in the house except possibly the kitchen, and that finally in February, 1958, he and Mrs. Dick erected a sloping or hip roof on the house. He estimated that he spent $1000 in repairing the house damage caused by these leaks. He expressed his opinion that the house value after the leaks was $1500 less than before.

The testimony of Mrs. Dick was substantially the same as that of her husband. However, she said they spent $380 in repairing the den two weeks after installation and she thought they spent about $1286 in other repairs about the house. Later she expressed her belief that their cost of repairs due to water damage alone amounted to $936.

Two neighbors called by plaintiffs substantiated their claims that the roof leaked and that pots, pans and buckets were placed on the floor to catch the drippings. ■

The defendant, R. A. Potts, was placed on the witness stand by plaintiffs. He said that Mr. Dick talked with him about a “bonded roof” which carried an additional $50 minimum charge. Mr. Potts said he told plaintiffs that the 15 year roof that plaintiffs bought carried the same specifications and “would be guaranteed equally as if it was bonded”. He asserted that the Johns-Manville specifications were followed in the installation. He said the nails had no washers but that washers were not required in a sealed roof such as this was. Mr. Potts personally went to the Dick home on different occasions, saw the leaks, inspected the roof and “had the men” make repairs. He observed breaks or leaks “around the edges of the roof, plumbing vent pipes and the television antenna wires”. He said the roof had settled in the center, resulting in a pull on the roof edges which caused leakage. Pieces of the composition roof were produced and described as live and in good condition.

The typewritten specifications with a diagram of this particular installation (Exhibit 9) was received in evidence. It provided for “nailing through tin caps at 9 inch centers adjacent to the back edge”. The diagram likewise called for “nails driven through flat tin caps”.

The case as submitted under plaintiffs’ instructions required a finding of express warranty and leaking due to defective workmanship in application. On behalf of defendant the jury was instructed that if the leaks were occasioned by faulty house construction or any cause not attributable to defendant, then plaintiffs could not recover.

Defendant filed a motion for directed verdict at the close of plaintiffs’ evidence. This motion was overruled and defendant then offered evidence in its behalf. Defendant’s action in so doing, waived the error, if any there was, in the overruling of defendant’s first motion. Daniels v. Smith, Mo., 323 S.W.2d 705, 706.

We, therefore, are left with one assignment of error on this appeal and it is this: Did the court err in overruling defendant’s motion for directed verdict submitted at the close of all the evidence? In order to determine this question we must review the evidence which was favorable to plaintiffs. This evidence must be considered in the light most favorable to plaintiffs, who must be given the benefit of all favorable inferences arising therefrom and we shall disregard defendant’s evidence unless it tends to aid the plaintiffs’ case. Mincielli v. Sloan’s Moving and Storage Co., Mo., 303 S.W.2d 17-19, Daniels v. Smith, supra.

In so reviewing the evidence we find that certain essentials of plaintiffs’ case have been clearly proved and are not in fact substantially disputed: (1) The express written warranty for 15 years against defective materials or workmanship was proved. (2) Within two weeks after installation the roof leaked in one place and within two years leaked many times and in numerous places. (3) By reason of the leaks, plaintiffs suffered damage to their ceilings, walls, floors and personal effects. (4) The composition roof pulled loose at the edges and leaked around the vent flash-ings.

Although defendant claimed that proper materials were used and good workmanship procedures were followed in the installation, no caps were used in the nailing although the specifications and installation diagram provided for nail caps. Defendant further suggested that faulty frame construction, inadequate flashing around openings, television antenna erection and walking on the roof resulted in a two inch sag, thereby causing the difficulties.

In Benson v. Denny, Mo.App., 14 S.W.2d 456, 457, defendant’s counterclaim was based upon warranty of an automobile. The court said:

“Defendant’s evidence tended to show that the oiling- system of the automobile failed to properly function, by reason of which two sets of pistons were burned out, and that this occurred within about 2 months after she purchased the automobile; that she took the automobile to the plaintiff and complained that the oiling system was not functioning properly and left the automobile with him to be repaired, but that he failed to correct the trouble; that the top went to pieces, without any apparent cause, within a few months after she purchased it. We think the evidence was sufficient to show, or to warrant a fair inference, of defective workmanship”.

The question whether the damage was caused by faulty house construction or improper workmanship in the roof installation was submitted to the jury under instructions about which defendant does not complain on appeal. The jury found for plaintiffs and against defendant. We believe the issue here was properly presented to the jury and that the evidence is sufficient to support the verdict. Therefore, it was not error to deny defendant’s motion for directed verdict.

Defendant has invited our attention to Whaley v. Milton Const. & Supply Co., Mo.App., 241 S.W.2d 23. There the judgment for plaintiff was reversed because the court refused to give defendants’ instruction submitting their claim that the damages were caused by latent defects not reasonably discoverable by defendants. In our case defendant’s proffered instruction presenting its defense was given to the jury. Defendant also refers to the following statement taken from 12 Am.Jur. 806: “Where skill as well as care is required in performing the undertaking and where the party purports to have skill in the business and he undertakes for hire, he is bound to exercise due and ordinary skill, or, in other words, to perform in a workmanlike manner * * * He does not become a guarantor of the results of such operation”. We do not disagree with that statement. However, our case was neither tried nor submitted upon the theory that defendant was .a guarantor.

We believe the trial court properly denied the defendant’s motion for directed verdict submitted at the close of all the evidence. On appeal defendant presents no other or additional assignment of error. The judgment below, is therefore, affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, •C., is adopted as the opinion of the Court.

All concur.