author: CHAPMAN, Justice.

text:
    Carroll Alan LADD, Appellant, v. Sandra Sue LADD, and J. R. Stump, Appellees.
    No. 7608.
    Court of Civil Appeals of Texas. Amarillo.
    April 11, 1966.
    Rehearing Denied May 23, 1966.
    H. M. Hood, Borger, for appellant.
    Gene E. Steed, Perryton, for appellees.
   CHAPMAN, Justice.

This is an appeal from a summary judgment granted Sandra Sue Ladd, and her father, J. R. Stump, defendants below, against Carroll Alan Ladd, plaintiff below.

Sandra Sue Stump and Carroll Alan Ladd were married on September 3, 1959. Two children were born to that union before they separated on April 3, 1964. Suit for divorce, custody of the two children and the division of community property was subsequently filed by Sandra Sue Ladd in Cause No. 2702 and tried to a jury beginning on November 18, 1964. Upon three issues submitted, the jury found (1) excessive cruel treatment and outrages committed by the husband against the wife were of such a nature as to render their further living together insupportable; (2) that Mrs. Ladd did not condone such actions; and (3) that the interests of the children would be best served by awarding their custody to the mother. Defendant, Ladd, in said cause made no affirmative allegations concerning plaintiff’s pleadings as to the extent of their community property, but only denied the allegations of plaintiff’s pleadings.

On November 20, 1964, the court rendered its judgment in accordance with the issues found by the jury, required the father to contribute $40 per month to the support of each child and found from the pleadings and evidence presented “ * * * that the only community property on hand to be divided by the court consists of one 1964 GMC pickup, subject to an outstanding indebtedness; one 1964 Ford Thunderbird automobile, subject to outstanding indebtedness; and a federal income tax refund claim in the amount of * * * $273.11.”

The court then awarded one-half of the tax claim for refund to each party and the two mentioned motor vehicles to Carroll Alan Ladd, requiring him to assume the indebtedness against each.

On August 24, 1965, appellant Carroll Alan Ladd, filed suit against his former wife, Sandra Sue Ladd, and her father, J. R. Stump, individually and as trustee of her separate estate, for $68,584.36 alleged to be his part of the community property of the estate, alleging he was prohibited from acquiring his part of the community property at the time of divorce and division thereof because of lack of proper legal representation. Motion for summary judgment was filed by appellees, accompanied by (1) an exhibit showing a temporary injunction granted by the district court on July 17, 1964, enjoining a forceable entry action in justice court in which appellant was seeking to recover from J. R. Stump, Trustee, the right of possession of a section and a quarter of land constituting the separate property of Sandra Sue Ladd; (2) the judgment for divorce, custody of the children and adjudication of community property rights in Cause No. 2702; and (3) an affidavit by appellees’ attorney, Gene E. Steed, showing that appellant had been first represented by James P. Linn of Spearman prior to the trial in the divorce proceedings and by Henry B. (Bob) Porter of Dumas in the divorce hearing before a jury. Mr. Linn in open court, in appellant’s presence, had asked the court’s permission to withdraw from the case and had been granted such permission by the court. Appellant had then employed Mr. Porter of Dumas, who represented him in the divorce proceedings in which the trial court had made the above findings concerning the extent of the community property.

In the Motion for Summary Judgment the former judgment, No. 2702, was asserted to be res adjudicata as to all community property rights appellant owned in the community property of himself and Sandra Sue Ladd.

In granting the Motion for Summary Judgment the court found the community property rights being asserted in the instant case are the same identical community property rights in issue in Cause No. 2702 and therein adjudicated.

The record shows that Sandra Sue Ladd, in the petition upon which she went to trial, had specified in her petition the specific items constituting all their community property. The husband pleaded a general denial thereto. The trial court in its judgment here under consideration found that such pleadings “ * * * brought into issue the community property rights of the parties in any ar.d all community property they had or might have had” and “ * * * that the judgment entered in said Cause No. 2702 is a complete bar to this action on the basis of res adjudicata.” We hold the trial court was correct in so holding.

No fraud was pleaded by appellant against appellees in concealing community property, in misrepresentations as to the extent of their community holdings or any excusable accident or oversight in the discovery thereof. In fact, his effort to adjudicate in justice court during the pend-ency of the divorce proceeding a claimed lease on Sandra Sue Ladd’s separate real estate shows his knowledge of the principal claim asserted here.

Even where a plaintiff in a suit to set aside the decree dividing community property in a divorce case had alleged fraud and corrupt evidence, the Supreme Court of Texas held until she proved her allegations upon the very matter to be investigated were true the evidence as to distribution of property, its character, and any erroneous rulings of the court could not apply, and that even though an injustice was done, or the court committed error, such did not authorize another judicial investigation. McMurray v. McMurray, 78 Tex. 584, 14 S.W. 895.

In an even earlier case the Supreme Court of Texas held in Nichols v. Dibrell, 61 Tex.Rep. 539 as follows:

“It is well settled that the decision of a court of competent jurisdiction is conclusive, not only as to the subject matter determined, but as to every other matter which the parties might have litigated in the case and which they might have had decided. * * * Or, as differently expressed, ‘the plea of res judi-cata applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.’ Aurora City v. West, 7 Wall. [82] 106 [19 L.Ed. 42],
“This court has frequently indorsed this principle and adhered to it whenever it has been called in question. Lee v. Kingsbury, 13 Tex., 68; Tadlock v. Eccles, 20 Tex., 782; Chilson v. Reeves, 29 Tex., 275; Webb v. Mallard, 27 Tex., 80; Cayce v. Powell, 20 Tex., 767; Taylor v. Harris, 21 Tex., 439 [438]; Baxter v. Dear, 24 Tex., 17.”

The Fort Worth Court of Civil Appeals in Kirberg v. Missouri State Life Ins. Co., Tex.Civ.App., 30 S.W.2d 663, 665 followed the authority just quoted, quoting verbatim therefrom. In Kirberg v. Worrell, Tex.Com.App., Sec. A, 44 S.W.2d 940, 942, the Commission of Appeals in passing on the appeal in the case just cited stated: “We are not in disagreement with the general rules of law announced by the Court of Civil Appeals * *

In a very recent case the Supreme Court of Texas in Ogletree v. Crates, Tex., 363 S.W.2d 431, speaking through Chief Justice Calvert in a child custody case has said: “The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried.”' It cannot be denied from this record that if there was community property other than that listed in Mrs. Ladd’s pleadings for divorce and division of the community estate the question could not have been litigated in that action nor that it properly belonged to the subject of litigation therein.

Applying the rules of law herein quoted to the summary proceedings here under consideration, we hold the trial in Cause No. 2702 was res adjudicata of the subsequent proceedings seeking to re-litigate the community property question.

Accordingly, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    MERIT HOMES, INC., Appellant, v. ALLTEX MORTGAGE COMPANY, Inc., Appellee.
    No. 7725.
    Court of Civil Appeals of Texas. Texarkana.
    May 3, 1966.
    Rehearing Denied May 24, 1966.
    L. P. Snell, Jr., Dallas, for appellant.
    James E. Coleman, Jr., Gene L. McCoy, Carrington, Johnson & Stephens, Dallas, for appellee.
   FANNING, Justice.

Merit Homes, Inc., appellant herein, brought suit against Mercantile National Bank at Dallas, Texas, Charles J. Hagen, substitute trustee, and the appellee herein, Alltex Mortgage Company, Inc., in trespass to try title to realty located in Dallas County, Texas. Summary judgment was granted to appellee and the same became a final judgment after the severance of all other issues and parties in the cause. Appellant has appealed.

Appellant on appeal contends to the effect that there was an issue of fact as to whether Hagen was the lawfully appointed substitute trustee to perform foreclosure sales under the four deeds of trust involved in this suit. In this connection appellant contends to the effect that there was a fact issue as to whether appellee Alltex, at whose instance Hagen was appointed substitute trustee, was the holder of the notes secured by said deeds of trusts.

Appellee in support of its motion for summary judgment filed the affidavit and supplemental affidavit of Charles J. Hagen, Vice-President of Alltex, and the affidavit of Frank Wolfe, Senior Vice-President, Mercantile National Bank at Dallas. Appellant filed the affidavit of J. P. Sanders, President of Merit Homes. Numerous exhibits were attached to all of the above affidavits with the exception of that of Frank Wolfe. These exhibits are copies of the legal documents predicating the relationship between appellant and appellee and serve to establish the source of the title in question. There are four basically identical transactions involved, involving promissory notes, deeds of trust, resignation and appointment of a substitute trustee, and substitute trustee’s deeds. The affidavits and exhibits attached show the following:

1. Merit Homes, originally acquired title to all of the property in question.

2. Merit Homes became indebted to ap-pellee Alltex on four promissory notes, each secured by a deed of trust executed by Merit Homes, Inc., et al, to Alfred L. Raney, Trustee for the benefit of Alltex, Appellee, covering the property in question.

3. Default occurred in the payment of all of the obligations above referred to and all of the' indebtednesses under each deed of trust became payable in full on or before Dec. 1, 1964. These sums have not been paid to appellee and the same have been continuously due and owing since default, nor did appellant tender payment to appel-lee.

4. On Nov. 9, 1964, Raney, the trustee, under each of said deeds of trusts, resigned as trustee, and appellee Alltex appointed in writing, Charles J. Hagen, as substitute trustee under each of said deeds of trust.

5. Three of the above referred to deeds of trust contain the following language:

“It is further agreed that in case of any sale hereof, all prerequisites to said sales shall be presumed to have been performed, and that in any conveyance given hereunder of statements of facts, or other recitals therein made, as to the non-payment of money secured, or as to the breach of non-performance of any of the covenants herein set forth, or as to the request of the Trustee, to enforce this trust, or as to the proper and due appointment of any substitute trustee, or as to the advertisement of sale, or time or place or manner of sale, or as to any other preliminary act or things, shall be taken in all courts of law or equity as prima facie evidence that the facts so stated or recited are true.”

The other deed of trust has similar provisions and provides that after a foreclosure sale the trustee or substitute trustee’s deed may provide, as follows:

“It is expressly agreed that the recitals in the conveyance to the purchaser shall be full evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed.”

6. Hagen gave notices of trustee’s sale under each deed by proper posting. Temporary restraining order was issued restraining the sales but on the date set for hearing on the request for temporary injunction, an agreement was entered into between appellant and appellee permitting Hagen to post and foreclose the property in question.

7. On Jan. 5, 1965, Hagen, on the courthouse steps of Dallas County, Texas, conducted a trustee’s sale under each of the said deeds of trust, and at such sale, the property in question was sold to Alltex. This sale included all of the property involved in this trespass to try title suit with the exception of four lots which were involved in a restraining order in a cause styled Irving Lumber Co. v. Mercantile National Bank at Dallas, et al.

8. Thereafter, on or about Jan. 11, 1965, Hagen, posted for foreclosure sale to be held Feb. 2, 1965, the balance of the lots involved herein being all of the four lots covered by above referred to restraining order obtained by Irving Lumber Company. On Feb. 2, 1965, Hagen, on the courthouse steps of Dallas County, Texas, conducted a trustee’s sale and all of such property covered by such sale was acquired by appellee. By virtue of the foreclosure sales of Jan. 5 and Feb. 2, 1965, appellee acquired all of the property covered by the trespass to try title suit herein.

9. Immediately after each of said trustee’s sales, Hagen, substitute trustee, executed and delivered to appellee, substitute trustee’s deeds to all the property involved in this suit. Each of said deeds recites that default was made in the payment of the indebtedness secured thereby and that “All-tex Mortgage Company, Inc., the holder of said indebtedness has since said default, requested the said Trustee to sell the property,” and further recites that Charles J. Hagen, was by instrument in writing, “duly appointed as Substitute Trustee under the provisions of said Deed of Trust”; that demand was made for the sale and that the same was sold at the courthouse door of Dallas County, Texas, after the proper giving of all notices and the due performance of all other preliminary matters; and that the same was sold to Alltex Mortgage Company, Inc., the highest and best bidder at such sale.

Appellee’s motion for summary judgment was based upon the ground that it was the true owner of the legal and equitable title to the property in question and that the establishment of this title constituted a complete defense to appellant’s suit. Watson v. Hewitt, 45 Tex. 472 (1876); 56 Tex.Jur.2d 143. The appellant has not questioned the validity and enforceability of the notes and deeds of trust executed by it to appellee, the validity of the liens thereby existing, nor the fact of appellant’s default and refusal and continuing refusal to pay its debts to appellee. Appellant does not broadly attack the foreclosures, but limits its challenge to the legality of the appointment of Hagen as substitute trustee, contending that Alltex who appointed Hagen, was not the owner and holder of the notes, and that Hagen was not appointed by Mercantile National Bank at Dallas, the record owner and holder of the notes. Appellant’s attack is thus very narrow.

The only evidence offered by appellant was the affidavit of Sanders. The only evidence conceivably relevant to the question of the propriety of the appointment of Hagen as substitute trustee is that portion of the affidavit which says that the statement made by Hagen in his affidavit reciting that Alltex Mortgage Company, Inc. was the legal owner and holder of all the indebtedness described in the deeds of trust is as shown below.

The promissory notes do not show any endorsement or other factor which would indicate that anyone other than appellee was the payee and the holder. The evidence of the appellee shows that at all material times it was the owner and holder of all of said notes and liens.

In response to the Sanders affidavit, ap-pellee presented the affidavit of Frank Wolfe, Senior Vice-President of Mercantile National Bank at Dallas, Texas, which specifically and unequivocally points out that the deeds of trust were transferred and assigned to the bank as collateral only and “at no time has Mercantile National Bank at Dallas been the legal owner and holder of the indebtedness of Merit Homes, Inc., secured by the above and foregoing deeds of trust. It always has been and is now the position of the Mercantile National Bank at Dallas that the above described deeds of trust and the indebtednesses secured by them were at all times owned by Alltex Mortgage Company, Inc., and not the Mercantile National Bank at Dallas despite the fact that said deeds of trust were assigned of record to the Mercantile National Bank at Dallas. This was a procedural recordation, and as between the Mercantile National Bank at Dallas and Alltex Mortgage Company, Inc., it was not the intention of the parties and it was not in fact a transfer of the indebtednesses of the security interests of Alltex Mortgage Company, Inc., as represented by said deeds of trust and the promissory notes.”

Mr. Wolfe’s affidavit thus shows that Alltex, and not the bank, was the true owner and holder of the notes and liens in question and fully explains the intent, purpose and effect of the assignments made to the bank for collateral only. Appellant did not controvert Mr. Wolfe’s affidavit.

Each of the deeds of trust contain a clause to the effect stating that all of the recitals in the substitute trustee’s deeds will be deemed prima facie true and correct and each of the substitute trustee’s deeds affirmatively declares that Hagen was duly appointed. In Faine v. Wilson, Tex.Civ.App., 192 S.W.2d 456, no writ (1946), it was stated:

“It is well settled that recitals occurring in the written refusal of the trustee to act and appointment of the substitute trustee, and the recitals in the substitute trustee’s deed of the occurrence of the facts required to effectuate such substitute trustee’s deed, when taken in connection with the provisions of the deed of trust providing that such recitals shall establish the truth thereof prima facie, do in fact make out a prima facie case of the regularity and validity of the sale, if not rebutted. Chandler v. Guaranty Mortgage Co., Tex.Civ.App., 89 S.W.2d 250; Whittaker v. Schlanger, Tex.Civ.App., 139 S.W. 177.”

We hold that the trial court correctly rendered a final summary judgment for ap-pellee under the record in this cause.

The judgment of the trial court is affirmed.

      . “Incorrect and untrue in that the indebtedness covered by the Deed of trust note attached to said Motion for Summary Judgment as Exhibit “M” was on February 27, 1964, transferred and assigned by Alltex Mortgage Company, Inc., to Mercantile National Bank at Dallas by instrument recorded in Yol. 267, Page 0260, Deed Records of Dallas County, Texas, the said instrument being attached hereto as Exhibit “B”, the indebted covered by the Deed of Trust note attached as Exhibit “N” to such Motion for Summary Judgment was transferred and assigned by Alltex Mortgage Company, Inc., on April 10, 1964, to Mercantile National Bank at Dallas by instrument recorded in Vol. 304, Page 0862, Deed Records of Dallas County, Texas, a certified copy of such instrument being attached hereto as Exhibit “C”, the indebtedness covered by the Deed of Trust note attached as Exhibit “O” to such Motion for Summary Judgment was on March 2, 1964, transferred and assigned by Alltex Mortgage Company, Inc., to Mercantile National Bank at Dallas, by instrument recorded in Vol. 271, Page 0785, Deed Records of Dallas County, Texas, a certified copy of such instrument is attached hereto as Exhibit “D”, and the indebtedness covered by the Deed of Trust note attached as Exhibit “P” to such Motion for Summary Judgment was on July 8, 1964, transferred and assigned by Alltex Mortgage Company, Inc., to Mercantile National Bank at Dallas, Texas, by instrument recorded in Vol. 363, Page 893, Deed Records of Dallas County, Texas, and a certified copy of such instrument is attached hereto as Exhibit “E”.”


author: WILSON, Justice.

text:
    Mark HORTENSTINE, Appellant, v. Arthur L. McKLEMURRY, Appellee.
    No. 4465.
    Court of Civil Appeals of Texas. Waco.
    May 5, 1966.
    Rehearing Denied May 19, 1966.

      Ashton & Smith, L. Hamilton Lowe (of counsel on appeal), Austin, for appellant.
    W. L. Tandy, Waco, for appellee.
   WILSON, Justice.

Plaintiff recovered judgment in a jury trial in his action to recover 25% of the net profit derived from exchange of Texas realty for an interest in a limited partnership which owned Arizona lands. He also recovered for salary and expenses alleged to be due.

The initial question confronting us is whether defendant preserved his right to assert the points now presented by timely assigning them in his motion for new trial, a prerequisite to appeal under Rule 324, Texas Rules of Civil Procedure.

Appellant seasonably filed his original motion for new trial containing thirteen numbered points. Eighteen days later he filed an amended motion, for the filing of which the court signed an order granting leave. The amended motion contained only a single assignment apparently attempting to allege newly discovered evidence. More than 20 days after the original motion was filed appellant’s counsel, apparently with consent of the court, removed from its cover the amended motion previously filed and inserted in that cover a new paper which re-copied the thirteen points in the first motion and the single point in the amendment, so as to show a total of fourteen points in a motion contained in a cover bearing a file mark dated within the 20-day jurisdictional time limit prescribed by Rule 329~b(2), Texas Rules of Civil Procedure. By bill of exception the court certifies that upon appellee’s discovery of and objection to this procedure he ordered the one-point amended motion restored to its cover and permitted “counsel for defendant to put the fourteen points of error which he had inserted” into “a separate instrument and call same an Amended Motion for New Trial, and that he would then let the defendant,” over the objection of ap-pellee, “file the instrument as of August 16, 1965” (the filing date of the single-point amended motion). The court certified that although the fourteen-point paper was actually filed on September 9, he directed the clerk to date its file mark August 16.

Notwithstanding Rule 5, Texas Rules of Civil Procedure prohibits enlargement of the period for taking action under rules relating to new trials; in spite of the fact that an amended motion is held to supersede the original, W. C. Turnbow Petroleum Corporation v. Fulton, 145 Tex. 56, 194 S.W.2d 256, 259; and although Rule 329-b provides “Not more than one amended motion for new trial may be filed”, thus making it doubtful that any of the thirteen points were preserved, it is unnecessary for us to pass on the question, and we do not do so. Only two of appellant’s points on appeal are properly assigned in any purported motion or amendment.

Appellant’s points 1, 3, 8, 9-12 have no supporting assignment in the motion for new trial, original or purported amendment, and may not be considered. Rule 374, Texas Rules of Civil Procedure; St. Louis Southwestern Railway Company v. Gregory, Tex.Sup., 1965, 387 S.W.2d 27, 29; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887; Texas Employers Ins. Ass’n v. Hawkins, Tex.Sup., 1963, 369 S.W.2d 305. There is no ground specified in the motions as required by Rule 320, or in the bill of exception referred to, to raise point 7. Point 5, complaining that the answer of -the jury to issue 4 is contrary to the overwhelming preponderance of the evidence, and point 6 concerning newly discovered evidence, have been considered and are overruled.

Affirmed.


author: DIXON, Chief Justice.

text:
    Hilda DAURAY et vir, Appellants, v. Robert GAYLORD, Appellee.
    No. 16704.
    Court of Civil Appeals of Texas. Dallas.
    April 8, 1966.
    Rehearing Denied May 6, 1966.

      Burford, Ryburn & Ford, Logan Ford and James H. Holmes, III, Dallas, for appellants.
    Carter, Gallagher, Jones & Magee, and Morton A. Rudberg, Dallas, for appellee.
   DIXON, Chief Justice.

This appeal calls on us to construe the meaning of a property settlement contract in which the word “contemplate” is the key word so far as our decision is concerned.

In 1958 Robert Gaylord and wife, Hilda Gaylord, paid approximately $21,000 for about two acres of improved property on a point overlooking what was then known as Lake Dallas in Denton County, Texas. Subsequently they spent about $50,000 improving and remodeling the house which was located on the land, bringing the total investment of the Gaylords in the property to approximately $71,000.

On November 19, 1962 the Gaylords were divorced. In connection with the divorce they entered into a property settlement agreement which was approved by the court. By its terms fee simple title to the Lake Dallas property was awarded to Hilda Gaylord. Paragraph IX of the contract is the hub of the present dispute. It is as follows:

“Robert E. Gaylord owes the Empire State Bank, Dallas, Texas, the sum of $23,300.00 which indebtedness is secured in part by 50 shares of Southwestern Life Insurance Company stock constituting the separate estate of Hilda Wofford Gaylord and described in Paragraph A of Exhibit “A” attached to this instrument. The parties hereto contemplate that the indebtedness of Robert E. Gay-lord to the Empire State Bank in the amount of $23,300.00 will be paid out of the proceeds of the sale of the homestead property (exclusive of its contents, and described as FIRST TRACT in Paragraph 1-A hereof) as hereinafter provided. For the purposes of this paragraph, the price contemplated for which the homestead property shall be sold shall not be less than $70,000.00 net (after payment of all commissions, costs and expenses attendant on, arising out of or accruing as the result of said sale). Any net sale price in excess of $70,000.00, aforesaid shall be divided equally between the parties to this Property Settlement Agreement. In this reSpect, Hilda Wofford Gaylord agrees to apply the proceeds of such sale to the payment and ultimate liquidation of said note. In the meantime, however, Robert E. Gaylord agrees to service said loan, pay the interest thereon as it accrues, and any principal payments that may be demanded by the Bank pending the ultimate liquidation of the loan by application of the proceeds of the sale of the homestead property aforesaid. Furthermore, Robert E. Gaylord hereby guarantees that none of the stock collateral described in Paragraph A of Exhibit “A” attached hereto and pledged to secure the loan aforesaid, shall be sold, disposed of or otherwise applied to the payment of said note, and in this connection the said Robert E. Gay-lord hereby agrees to indemnify and hold harmless the said Hilda Wofford Gaylord from any liability, suits, claims, loss, damage, expense or cost by reason of her stock being security for the loan aforesaid.
“Robert E. Gaylord further agrees, in addition to the covenants above, to pay all reasonable costs of maintenance of the house, yard, roadway, water well and incidental buildings on the premises, all taxes assessed against the property, premiums on the insurance policies on the house and the contents as such policies presently exist, all utility bills for a period beginning on the date of entry of final decree of divorce herein and continuing for 18 months thereafter.”

Thereafter Hilda Gaylord married Charles Dauray who was joined with her as a defendant in the trial court and an appellant here.

The Lake Dallas property has not been sold. Because of such failure to sell the property Robert Gaylord filed this suit against his former wife, now Hilda Dauray, and her husband, Charles Dauray. In his Second Amended Petition, filed May 29, 1965, Robert Gaylord charges that Hilda Dauray has failed to make reasonable efforts to sell the property in question at its market value though she has had more than a reasonable time to do so. He prays for foreclosure of his equitable lien of $23,300 against the property, for appointment of a receiver and for damages.

In their answer appellants say that they have tried diligently to sell the property for not less than $70,000, pursuant to the agreement in Paragraph IX of the contract, but have received no offers.

The cause was tried before the court without a jury. In entering judgment for appellee the court found that Paragraph IX of the contract “when properly construed obligates defendants herein to sell the property therein described within a reasonable period of time from October 30, 1962 and at a price equivalent to its cash market value rather than at a price not less than $70,-000 net, the proceeds of which shall be applied to Robert Gaylord’s obligation in the sum of $23,300 due and owing to the Empire State Bank of Dallas, Texas.” The court further found that appellee has an equitable lien on the Lake Dallas property to secure payment of the $23,300, which lien should be foreclosed.

The court rendered judgment appointing a receiver to sell the property if appellants fail to do so within 180 days from date of judgment. Appellee was not awarded a money judgment for damages.

OPINION

Both appellants and appellee assert that the contract is not ambiguous, and that therefore we must seek the intention of the parties from the contents of the written agreement itself without resort to other evidence.

In their first point on appeal appellants assert that the court erred in requiring them to sell the Lake Dallas property at a price equivalent to its cash market value when the property settlement agreement establishes the minimum sales price for which the property is to be sold at not less than $70,000 after payment of all commissions, costs and expenses of sale.

Appellants contend that the word “contemplate” as used means “intend” and indicates a binding agreement. Appellee on the other hand contends that the word has a precatory rather than a mandatory meaning and may be equated to the word “desire”.

The only Texas case in point which has come to our attention is Newsome v. Brown, 157 S.W. 203, 204 (Tex.Civ.App., no writ hist.). In that case appellant and appellee had signed an instrument in writing which stated that plaintiff contemplated moving his saw mill to another location and he would hire defendant to haul timber to the new site. Plaintiff did not move to the new site as contemplated. Defendant filed a cross-action for damages. In holding against the defendant’s contention the court held that the agreement was unambiguous and in using the word “contemplate” the plaintiff plainly did not mean that he “had determined and thereby bound himself to move the mill, but meant that he was considering the matter of moving it, * * Cases from other jurisdictions supporting appellee’s contention are: In re Milton’s Estate, 48 Wash.2d 389, 294 P.2d 412 (“ ‘Contemplated’ is a precatory word, a word of desire or expectation and not of command.”); and Read v. Fox, 119 App.Div. 366, 104 N.Y.S. 251, 253 (“The word ‘contemplates’ indicates rather an expectation or intention, than a promise or undertaking.”) .

The above holdings comport with the dictionary definition of “contemplate”:

“1. To view or consider with continued attention; to regard thoughtfully; to meditate on; to study.
“2. Hence, to look upon (mentally); to view in a certain light or respect; to regard.
“3. To have in view as contingent or probable or as an end or intention; to look forward to; to purpose or intend.” Webster’s New International Dictionary, Second Edition, unabridged.

The property settlement is thirteen pages long and consists of fourteen numbered sections. The words “agree” and “agrees” are used many times in the contract to express the contractual promises and obligations of the parties. It is only in one sentence in Section VIII and two sentences in Section IX that the word “contemplate” is used. Inasmuch as the parties could just as easily have used the word “agree” where they have used the word “contemplate” if they had intended to bind themselves contractually, it seems obvious to us that their failure to do so is indicative of a contrary intention.

Appellants cite the cases, among others, of Denker v. Twentieth Century-Fox Film Corp., 26 Misc.2d 1035, 210 N.Y.S.2d 241 and Jenks v. Jenks, 385 S.W.2d 370 (Mo.App.). We have given the holdings in those cases our serious consideration. We have concluded that however proper these holdings may have been with reference to the particular contracts there being considered, they should not control our holding in construing the particular contract which is here before us.

Appellants argue that appellee is inconsistent in that he says that the word “contemplate” as used in the second sentence of Paragraph IX binds the parties to use the proceeds of the sale to pay Robert Gay-lord’s $23,300 debt to the bank, but as the word is used in the third sentence the use of the word does not bind the parties to sell the property for a price not less than $70,-000 net. It is not the second sentence on which appellee relies to obligate appellants to apply the proceeds of the sale to pay ap-pellee’s debt. It is the fifth sentence in the paragraph, which is as follows: “In this respect, Hilda Wofford Gaylord agrees to apply the proceeds of such sale to the payment and ultimate liquidation of said note.” (Emphasis supplied.)

We have reached our conclusions in this case from a construction of the language contained between the four corners of the settlement contract itself considered as a whole. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166. But if additional support for our conclusion were necessary we think it would be found in the undisputed circumstances here involved. It has been held a number of times that even in the case of unambiguous contracts proof of existing circumstances may be presented, not to change the legal effect of the unambiguous contract, but to enable the court to apply the language used therein to the facts as they then existed. King v. City of Dallas, Tex.Civ.App., 374 S.W.2d 707, 712. In the last named case this court, speaking through Justice Bateman, quoted our Supreme Court in Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004. Other cases are cited in the King case.

Such circumstances are present in this case. It is undisputed that on September 13,1963 Hilda Dauray (then Hilda Gay-lord) wrote to Arthur Kramer, Jr., a real estate broker, and listed the property with him for sale at a price of $69,500 out of which Kramer was to be paid a commission of five per cent. The above price included draperies, carpeting and rugs except a small oriental rug at the front door. This is considerably below the net price of $70,-000 which appellants now allege was the minimum price at which the property could be sold under the terms of the contract. It is not claimed that Hilda Dauray obtained the consent or even consulted Robert Gay-lord before listing the property with Kramer for sale at a gross price of $69,500.

Appellants first point on appeal is overruled.

In their second point appellants complain that the court erred in appointing a receiver to sell the property after the expiration of 180 days from the date of judgment when the settlement contract establishes a minimum sales price of $70,000 for which the property could be sold.

The trial court concluded that a reasonable period of time had been allowed Hilda Dauray to sell the property. This conclusion was based on the rule that when a contract is silent as to terms establishing a time for realization of the sale of property the court should imply that the sale should be consummated within a reasonable time. We think the court was correct in so holding. Berne v. Keith, 361 S.W.2d 592 (Tex.Civ.App., writ ref. n. r. e.); Baker v. Texas & P. Ry. Co., 309 S.W.2d 92 (Tex.Civ.App., writ ref. n. r. e.); Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12; Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940; Cheek v. Metzger, 116 Tex. 356, 291 S.W. 860 (Comm.App.); Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101 (S.Ct.).

Appellants seek to invoke the rule stated in 17 Am.Jur.2d, p. 420 to the effect that words which fix an ascertainable fact or event by which the term of a contract’s duration can be determined make the contract definite and certain in that particular. See also 13 Tex.Jur.2d 252 and Hutchinson v. Hutchinson, 48 Cal.App.2d 12, 119 P.2d 214. Appellants argue that this contract expressly provides that the property shall not be sold for less than $70,000, and that such language fixes the contract’s duration: that is, when the purchase price of not less than $70,000 is realized and not before. In overruling appellants’ first point we held that the contract by its terms does not require that the property be sold for a price not less than $70,000. Consequently there is no basis for the contention presented in appellants’ second point. The latter point is overruled.

In a cross-point appellee prays that we affirm the trial court’s judgment interpreting the contract but that we reverse that portion of the trial court’s judgment extending the time for performance and appointing a receiver; and that we render judgment for $23,300 damages. We find nothing in the pleadings or the evidence to justify our rendering a judgment for ap-pellee for damages of $23,300. Appellee’s cross-point is overruled.

The judgment of the trial court is

Affirmed.


author: PRESLAR, Justice.

text:
    Norris OLSON et ux., Appellants, v. A. S. PASSERO, Ind. & d/b/a, etc., et al., Appellees.
    No. 5762.
    Court of Civil Appeals of Texas. El Paso.
    May 4, 1966.
    Rehearing Denied May 25, 1966.
    Irion & Rash, El Paso, for appellants.
    Hardie, Grambling, Sims & Galatzan, John A. Grambling, William T. Deffebach, Owen & Steinberger, El Paso, for appellees.
   PRESLAR, Justice.

This is a suit for damages for the cost of restoring a rock fence or retaining wall at the premises owned by appellants and built by appellees. Appellants, Norris Olson and wife, Bernice Olson, sued appellees, A. S. Passero, individually and d/b/a A. S. Passero General Contractor, and W. Gerald, Inc. and its successors in interest, Passero Construction, Inc., for damages in the amount of $3,125.00, basing their suit on negligence in the construction of the wall, a portion of which fell down. Trial was before a jury, but at the conclusion of the plaintiffs’ evidence in chief, the trial court instructed a verdict for the defendants. We affirm the judgment of the trial court.

The defendants’ motion for instructed verdict contained several counts and the judgment does not reflect which was the basis of the trial court’s decision, but we are of the opinion that the judgment should be sustained on the basis of the defendants’ plea of the two-year statute of limitations.

Plaintiffs’ cause of action against the defendants is for certain negligent acts and omissions of the defendants. Negligence alone is the foundation of the cause of action. No contractual relation or warranty is relied on. The negligent acts and omissions pleaded and the evidence adduced in support thereof are in regard to the construction of the wall. It is undisputed that the construction was completed more than two years prior to suit. It is not contended that there was a duty to maintain, nor any violation of any such duty during the two years prior to suit. Under this state of the record, we believe that this is an action which comes within Article 5526, Vernon’s Annotated Texas Civil Statutes, and that plaintiffs’ claim is barred by the Texas two-year statute of limitations.

The rock wall surrounds a portion of the dwelling purchased by plaintiffs on January 28, 1961. It was constructed by the defendants, who sold it to one Giallanza and wife, on November 30, 1960, and they in turn sold to plaintiffs. The Giallanzas are not parties to the suit, and plaintiffs in their brief say that their dealings were with defendants, and the sale to the Gial-lanzas was all a part of the transaction and was done to establish financing, since plaintiff was too old for long-term financing. The method of purchase is unimportant, for the suit was not brought on a contractual relationship of the parties. Plaintiffs do allege that prior to their purchase they inspected the premises with the defendant, A. S. Passero, and specifically inquired about the wall and were assured by him that it was in good condition and would not fall down. Plaintiffs testified that at that time the wall had a large crack running diagonally across it, large enough for a man’s finger to be stuck in it; that they were suspicious of it and were afraid it was about to fall down. That inspection was made in November, 1960, prior to purchase in January of 1961. Suit was commenced June 21, 1963. Plaintiffs seek to avoid the statute of limitations on the grounds that the defects were not discoverable; that inferior mortar was used in the construction of the wall, and that such was a hidden defect of which he was not aware at the time of purchase, and which defect was not discoverable by him until the wall fell down in September, 1962. It is plaintiffs’ contention that a fact question was created as to when they knew of the defect, and that determined when the statute of limitations began to run. We believe the law applicable here to be that the statute of limitations began to run when the negligent acts were committed and not when they were discovered. As stated earlier in this opinion, plaintiffs alleged no acts of negligence occurring during the two years immediately prior to suit. The only negligence complained of was more than two years prior to suit, and no exception to the limitations statute was pleaded. Thus, by the case pleaded and the evidence adduced in support thereof, no act of negligence on which recovery could be predicated occurred during the two years next preceding the commencement of suit.

The case most nearly like the one before us which we have been able to discover is Reconstruction Finance Corp. v. Foster Wheeler Corp. (D.C.1947), 70 F.Supp. 420. There, the plaintiff’s claim was based on the negligent manner of construction of a cooling tower by the defendant. The defendant had nothing to do with the tower after its construction, and it was alleged that the plans or designs, the material used, and the workmanship were faulty, and that within two or three weeks after it was so put in operation and within two months after it was completed, it failed completely to function. In holding that the plaintiff’s cause of action accrued on completion of the tower, and was barred by the Texas two-year statute of limitations, the court cited the leading Texas case of Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36, and the many cases following it. Also relied on, and applicable to the case at bar, was Carrell, et al. v. Denton, 138 Tex. 145, 157 S.W.2d 878, where a physician was operating upon a patient and left a piece of gauze in his body, and the suit for damages for the tort was not brought within the two-year period, and it was held that limitations commenced to run from the date of the negligent act and not from the date of discovery or the time of ascertainment of damages. Fraudulent concealment of a defect was recognized in Carrell v. Denton as taking the case out of the limitations statute; but that is not the case before us, where plaintiffs rely on a hidden defect.

Since the judgment of the trial court is upheld on the foregoing basis, we deem it unnecessary to discuss the other points involved, and all points of error are overruled.

The judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    ROBERTSON TANK LINES, INC., Appellant, v. Catherine Waguespack POPE, a Feme Sole, Appellee.
    No. 14590.
    Court of Civil Appeals of Texas. Houston.
    May 5, 1966.
    Rehearing Denied May 26, 1966.
    Tom Alexander, Houston, for appellant, and Quinnan H. Hodges, Jonathan Day, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.
    Peyton & Peyton, Allie L. Peyton and George C. Peyton, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for damages by reason of injuries sustained in a collision between a loaded tank truck and a taxicab in which appellee was a passenger. The jury awarded damages in the sum of $100,000.00. The only point of error assigned is that this award is excessive.

Appellee and another passenger were riding in the back seat of a taxicab on the East-Tex Freeway. The cab was driven past the intended exit and was in the process of backing up when it was struck from the rear by the loaded tractor truck. The driver and a passenger died as a result of the injuries they received. The force of the impact drove appellee’s feet through the floor board of the car and she was pinned in the wreckage for a period of time after the collision. She was in a state of shock for several days and her condition was critical. X-rays taken immediately after the accident revealed that appellee had suffered a fracture of the fibia of the right leg, a fracture of the right forearm, fractures of a bone in the left ankle, and of two bones in the right ankle. She also suffered a fractured collarbone, thirteen fractured ribs, a severe brain concussion, and a fracture of the third transverse process of the lumbar vertebra.

Dr. James A. Brown, a neuro-surgeon, was called to Jefferson Davis Hospital to treat her and removed her to another hospital. He called in Dr. E. J. Tucker, an orthopedic surgeon, the following day. Dr. Tucker testified that when he first examined her she was suffering from severe shock and was in a coma. Her face was swollen and she had multiple injuries about the head. Her right foot was full of dirt and gravel and was turning black. The arteries that went to the outside and to the toes of the foot were torn and gangrene had set in.

Dr. F. H. Tyner, a radiologist, x-rayed appellee on the day of the accident for examination of her dorsal and lumbar vertebra and ribs. He found a curvature of the dorsal spine, a reversal of the normal curvature of the cervical spine and evidence of arthritis.

She was hospitalized from November 8, 1961, to December 20, 1961. On November 24, 1961, Dr. Tucker performed a surgical operation on her right foot by removing most of the forefoot and as much of the dead skin as he could off the rest of the foot. On January 9, 1962, Dr. Tucker performed a skin graft on the foot. Appellee was in the hospital at this time about a week and thereafter used a wheelchair for about two months. She was discharged by Dr. Tucker on May 1, 1962, but returned on July 3, 1962, complaining of pain in her cervical spine, referred to her arm, and pain in her back, referred to knees and legs, and swelling of the right toot and ankle. He had additional x-rays made and referred her back to Dr. Brown for a neurological examination.

Dr. Tucker testified that the amputation of the fore part of her foot caused her to limp and walk with a “lag”, and that her foot was tender where the skin graft was performed. He examined the x-rays taken by Dr. Tyner at his request. He found early arthritic changes in the lumbar spine and hyperextension of the lordotic curve. He found a slight reversal of the lordotic curve of the cervical spine, and some degeneration of a disc and early arthritic changes. He testified that the conditions he found were probably caused by the accident. He testified that her disc trouble and the foot condition were permanent conditions, and were disabling, and that she was not a fit subject for a full-time job. He also testified that his examination of the x-rays revealed a condition of moderate osteoporosis, a thinning of the bone; that such a condition can be caused by trauma, but is more commonly caused by the inactivity resulting from trauma; and that this condition would cause symptoms; that the condition increases gradually from year to year. He testified that the degeneration of a disc was not normal; that injury to, or disease of, the adjacent bones was the common cause of that condition. It was stipulated that Dr. Tucker was qualified to testify as an expert in the field of orthopedics.

Dr. Brown testified to the condition of ap-pellee at the time he undertook her treatment and to the injuries she sustained in the collision. He expressed an opinion that at the time of the trial she continued to suffer from a herniated intervertebral disc, the loss of part of her foot, arthritis of the neck and shoulder aggravated by the injuries received in the Collision, loss of her sense of smell and periodic dizzy spells resulting from a brain concussion, and that she was nervous and depressed. He testified that these and other injuries had caused appellee to suffer pain up to the date of trial. It was his opinion that these conditions were probably permanent and would cause pam and disability for the remainder of her life.

Appellee testified to pain, suffering and disability, as did several lay witnesses. Well qualified medical men, basing their opinions on the hospital records, report, results of examinations and tests, x-ray reports and films and other testimony, concluded that there was no permanent disability resulting from the back injury.

Appellee had a life expectancy m excess of 29 years. Prior to the trial she had incurred medical expenses of $3,875.00, and had lost wages in the sum of $3,240.00. In addition to a full-time job, appellee worked each night in a lounge owned by her and her purported husband. She testified that she had invested some of her funds in the business and that most of the profit realized from its operation was placed back in the business. The jury might reasonably have allowed some sum of money for earnings she would have realized from the lounge to the date of the trial. Certainly, they had a right to consider her demonstrated willingness to hold two jobs at the same time in considering her diminished capacity to work and earn money in the future.

Appellant has calculated appellee’s loss of future earnings on the basis of a twenty year work life and a $270.00 monthly income using a six percent interest factor and arrived at a figure of $37,162.00. Obviously the figure would be much greater if such factors as income from a second job and probable increases in pay were considered. Considering the testimony of ap-pellee’s previous health record, as well as the testimony as to her capacity for work and her willingness to work, the use of a longer work life than twenty years would not be unreasonable. An interest factor of four percent might well have been used considering the interest rate prevalent at the time of trial for safe investment. Considering the testimony concerning the pain and suffering of appellee prior to the trial and the probability of such suffering in the future we are not disposed to hold that the verdict rendered by the jury exceeds a rational appraisal and estimate of the damage suffered by appellee.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Thomas BROWNE, Appellant, v. GENERAL ELECTRIC COMPANY, Inc., Appellee.
    No. 14459.
    Court of Civil Appeals of Texas. San Antonio.
    April 27, 1966.
    Rehearing Denied May 25, 1966.

      Fred Clark, Hubert W. Green, Jr., San Antonio, for appellant.
    Beckmann, Stanard, Wood & Vance, Melvin A. Krenek, San Antonio, for appel-lee.
   MURRAY, Chief Justice.

This suit was instituted in County Court at Law No. 1 of Bexar County, Texas, in the nature of a bill of review by General Electric Company, Inc., against Thomas Browne, seeking to set aside a final judgment rendered in that Court on February 11, 1964.

The cause was transferred to and tried in the County Civil Court at Law of Bexar County. The bill of review was granted, the final judgment set aside, and judgment rendered in favor of General Electric Company, Inc., that Thomas Browne recover nothing against it, from which judgment Thomas Browne has prosecuted this appeal.

Appellee presents the following counterpoint:

“The Trial Court did not err in setting aside the judgment in Cause No. 55,110 because the evidence conclusively shows, and the Trial Court so found that the failure of G. E. to appear and present its defenses in the original suit was not intentional or the result of conscious indifference, that G. E. was misled or prevented from filing a motion for new trial by misinformation of an officer of the Court, acting within her official duties and this misinformation was given to counsel for G. E. within the ten-day period for filing the motion for new trial in time, that G. E. had a meritorious defense and no injury did result to Browne by the granting of the Bill of Review.”

We sustain this counterpoint.

The trial judge filed his findings of fact and conclusions of law which are not challenged in any way by appellant. They read as follows:

“1. Cause No. 55,110 styled Thomas Browne vs. General Electric Co., Inc. was duly and regularly set for trial on the merits at 9:00 o’clock A.M.
2. Defendant had due notice of this setting.
3. Prior to 9:00 o’clock A.M. Defendant’s Counsel personally appeared at the County Court at Law No. 1 and inquired of the Clerk of the whereabouts of Plaintiff’s Counsel and apprised the Clerk of his whereabouts in the Courthouse.
4. The cause was duly and regularly called for trial, at which time came the Plaintiff in person and by his attorney of record, but Defendant’s Counsel was not present and the Court proceeded to hear evidence as to damages only and rendered judgment for Plaintiff for the sum of $668.82 together with interest and costs, which judgment was signed on the same day.
5. Sometime after 9:00 o’clock A.M. and in the morning of said day, Defendant’s Counsel was advised by the Clerk of the Court that no action had been or was to be taken by the Court in said cause.
“The Court Concludes:
A) The Clerk had no official duty to seek out Defendant’s Counsel or apprise the Judge of Counsel’s whereabouts at the time of the docket call and hearing. The Clerk was acting as the agent of Counsel at the time set out in 3, supra.
B) The Clerk did have an official duty to apprise correctly Counsel for Defendant upon his inquiry of the Court’s action set out in 4, supra, at the time set out in 5, supra.
C) Therefore, Defendant, without negligence, was deprived of its right to file motion to set aside the judgment and/or for new trial within the time provided therefor, and accordingly should be afforded the right to reopen the judgment.
“Having considered the pleadings and evidence on the merits, the Court finds:
1. General Electric Company discharged its burden of proof in showing a meritorious defense to the original Cause of Action.
2. Thomas Browne failed to discharge his burden of proof in showing negligence on the part of any of the agents, servants and employees of General Electric Company which proximately caused damages, if any.
“The Court concludes:
A) Judgment should be entered that the Judgment signed on February 11, 1964, be set aside, Thomas Browne take nothing, and General Electric Company, Inc., recover costs of court.”

We are well aware of the rule laid down in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, reading as follows:

“Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W.2d 111, er. ref.”

However, this rule has been modified in Hanks v. Rosser, Tex., 378 S.W.2d 31, by the following rule:

“The controlling facts under these circumstances are: (1) whether the failure to file the answer was either intentional or the result of conscious indifference. Craddock v. Sunshine Bus Lines, supra (134 Tex. 388, 133 S.W.2d 124 (1939); (2) whether Hanks was misinformed by the clerk within the time for filing the motion for new trial, and (3) was thus prevented from filing, or misled into not filing, his motion in time; (4) whether Hanks had a meritorious defense; and (5) whether the plaintiff Rosser would not be caused to suffer injury by the granting of the bill of review.”

The trial court has found that appellee, without negligence on its part, has been deprived of its right to file a motion for new trial, and therefore is entitled to have the judgment of Feb. 11, 1964, set aside. This finding is not challenged in any way and must be accepted by us as correct. Accordingly, the judgment of the trial court is affirmed.


author: HOGAN, Judge.

text:
    STATE of Missouri on relation of David Wayne McGUIRE and Ray Hayden, Relators, v. Cecil HERMANN, Secretary, Board of Directors of Spring Hill School District No. 27 of Jasper County, and Wallace Tubaugh and Glenn W. Osborne, Directors of Said District, Respondents.
    No. 8504.
    Springfield Court of Appeals. Missouri.
    May 13, 1966.

      Arkley W. Frieze, Vernie R. Crandall, Frieze & Crandall, Carthage, for relators.
    Herbert Casteel, Esterly & Casteel, Carthage, for respondents.
   HOGAN, Judge.

In this proceeding in mandamus, the rela-tors sought to compel the respondents to honor their petition for an election upon a proposed change of boundary between school districts. The circuit court refused the peremptory writ and the relators have appealed.

The cause has been presented in this court upon the pleadings and a stipulation of facts which was made orally before the trial court. The record is incomplete in one respect, which we shall notice further. However, it appears that three school districts are more or less directly involved. The relators are residents of the Spring Hill (or Springhill) School District No. 27 of Jasper County, which is a three-director or common school district. The respondents are the directors of that district. The second district involved is the Golden City R-VI School District, into which the rela-tors wish to be taken. The third school district involved, which lies to the west of the Spring Hill District, is the Jasper School District. Another school district, mentioned but not directly involved, is the Avilla School District, which adjoins the Spring Hill District on the south. It appears that the Golden City R-VI School District lies mostly in Barton County, while the Spring Hill District is in Jasper County.

On October 5, 1964, the relators (and others), as residents of the Spring Hill District, presented the following petition to the respondents as directors of the school district:

“DATED October 5, 1964
To the district boards of education, Spring Hill District #27 and Golden City R-VI District.
We, the undersigned qualified voters who are taxpayers of District No. 27, County Jasper, State of Missouri, desire the following changes in district boundary lines: 8-29-29 157.64A NW EX 2.36A HWY ON N, 8-29-29 80 A NE SE & SE NE, 8-29-29 80A NW SE & SW NE, 9-29-29 40 A NW SW, 9-29-29 38.78A NW NW EX 1.22A HWY ON N, 1-29-30 319.90 A LOT I NE & E ½ LOT 2 NE & SE & W ½ LOT 2 NE, 12-29-30 30 A NE NE EX 10A E SIDE, 12-29-30 200A S ½ NW &N1/2 SW & SW NE, 12-29-30 40A NW NE, 12-29-30 40 A SE SE, 5-29-29 77.90A LOT 4 NW EX 1.10A FOR RD, 5-29-29 79 A LOT 3 NW EX S 20', 5-29-29 39 A W ½ LOT 2 NW EX N 20', 5-29-29 156.04A LOTS 5 & 6 NE, 5-29-29 38.01 A E ½ LOT 2 NE, 5-29-29 225.15A LOTS 5 6 & 7 NW EX 1.37A FOR RD ACROSS LOT 5 NW, 5-29-29 156.04 A LOTS 3 & 4 NE, 4-29-29 39.93 A E ½ LOT 3 NW, 4-29-29 159.42 A LOTS 4 & 5 NW, 4-29-29 157.57 A SW EX 2.43 A HWY ON S, 6-29-29 120 A LOT 1 NE & E ½ LOT 2 NE, 6-29-29 242.93 A LOTS 1 & 2 NW 6 S 1/2 E 1/2 LOT 3 NW-65 A W ½ LOT 2 NE & 25 A S SIDE W ½ LOT 3 NE, 7-29-29 148.44 A LOTS 1 & 2 SW & N 30' SE, 7-29-29 120 A W ½ NE & NE NW, 6-29-29 180.52A E ½ LOTS 3 4 5 NE EX 2.48A FOR RD ACROSS LOTS 4 & 5 NE & N 15A W ½ LOT 3 NE & W ½ LOT 4 NE & S 8 ½ A W ½ LOT 5 NE S OF DEER CRK, 6-29-29 66.5A N SIDE E ½ LOT 3 NW &Ei/2 LOT 5 NW S OF DEER CREEK & E 1/2 LOT 4 NW, 6-29-29 79.2A S ½ SE EX CHÚRCH SITE BEG 147 ½' W of SE COR N 240' E 147 w S 56' W 102 ½' S 184' W 45' TO BEG & EX BEG 240' N OF SE COR W 147 ½', 6-29-29 75.63 A N ½ LOTS 1 & 2 SW FRAC, XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX xxxxxxxxxxx.
and hereby petition you to give fifteen days notice prior to the Annual School Election by posting in at least five public places in each district affected by such change, or by publishing in the newspaper.”

It has been stipulated, among other things, that the realty described in the petition includes 160 acres belonging to a Mr. Stuckey. Mr. Stuckey’s land is not in the Spring Hill District; it is in the Jasper School District. It is also stipulated that Mr. Stuckey did not sign the petition, but knew of it and wanted to be taken in the Golden City District, as did the relators. It is also stipulated that some of the land described — 80 acres — was already in the Golden City District. The parties have also agreed: (a) that the signatures were genuine; (b) were “sufficient in number”; and (c) that this petition was presented to the directors of the Golden City School District as well as to the respondents, but not to the directors of the Jasper School District, in which Mr. Stuckey’s land lay.

The immediate response of the directors of the Spring Hill District is not shown, nor is there any record indication of the action taken by the directors of the Golden City District. However, on February 5, 1965, the relators and eight other residents of the Spring Hill District presented a second, supplemental, petition to the respondents, which is as follows, omitting signatures:

“DATED February 5, 1965
TO THE DISTRICT BOARDS OF EDUCATION, SPRING HILL DISTRICT #27 AND GOLDEN CITY R-VI DISTRICT
We, the undersigned qualified voters who are taxpayers of District No. 27, County Jasper, State of Missouri, desire the following changes in district boundary lines:
12-29-30 80A N ½ SE
and hereby petition you to give fifteen days notice prior to the Annual School Election by posting in at least five public places in each district affected by such change, or by publishing in the newspaper.”

It is stipulated that this petition describes land which lies in the Spring Hill District but does not adjoin the Golden City District, although it does adjoin land described in the first petition. This second petition was also served on the directors of the Golden City District, and it is stipulated that the signatures on this petition were genuine and adequate in number. The trial court considered this petition in connection with the first, and so shall we.

On March 3, 1965, the respondents addressed the following communication to the directors of the Golden City District:

“March 3, 1965
Board of Directors R-VI School Dist.
Golden City, Mo.
Gentlemen:
Springhill Dist. #27 of Jasper Co. will not post notice for change of boundary at the annual school election.
Our reason is stated in section 165.177 of the School laws of Mo.
By order of Board of Directors
Signed
Cecil Hermann
Glen W. Osborne”

There is still another petition, or request, found in the record addressed solely to the respondents on March 10, 1965, requesting action on the proposals advanced in the two earlier petitions. Omitting signatures, this third petition is as follows:

“TO THE SCHOOL BOARD OF SPRING HILL DISTRICT #27
We, the undersigned residents of Spring Hill District No. 27, County Jasper, request that you post the notices for the change of boundary election to be held at the annual school election.”

Among other facts incidentally stipulated are these:

1. That no school is being operated in the Spring Hill District;

2. That if the boundary change contemplated by the first petition were effected, thirteen of the twenty-four children of school age residing in the Spring Hill District would be put in the Golden City District ;

3. That if the relators’ requested change of boundary proposed in both the first and supplemental petitions was made, fifteen of twenty-four children of school age residing in the Spring Hill District would be in the Golden City District;

4. That at the time of trial seventeen children residing in the Spring Hill District were attending school in the Golden City District and one child was attending school in the Avilla School District, and only these eighteen children of twenty-four of school age were then attending school.

Fundamentally, this controversy involves a construction of former Sections 165.170 and 165.294, RSMo (1959). Both those sections dealt, among other things, with boundary changes between school districts. The history and general purpose of these two former statutes was developed at length by the Supreme Court in England v. Eckley, Mo., 330 S.W.2d 738, to which both parties have referred again and again, and we need not develop the legislative history of these statutes in this opinion. Section 165.170 was applicable to common school districts and authorized changes in boundaries between two such districts upon petition filed and after a vote of the citizens of the districts involved, while Section 165.294, as amended in 1959, authorized changes of boundary lines between six-director elementary or high school districts, or between such six-director districts and a common or three-director district, upon petition of ten per cent of the qualified voters who were taxpayers, and after a favorable majority vote in each of the districts involved.

One vexed and recurrent question concerning boundary changes made under the provisions of Section 165.294 was how much of a district could be taken on a change of boundary. Section 165.170(2) provided that no boundary change could be effected thereunder “ * * * by which any district shall be left containing * * * by actual count less than twenty persons of school age * * *” and former Section 165.177 prohibited division of a common school district when the division would leave a district containing “ * * * an assessed valuation of less than fifty thousand dollars and an enumeration of less than twenty persons of school age or at least eight square miles of territory and twenty persons of school age.” Whether or not there was thus an implied limitation on the kind of boundary change which could be effected under former Section 165.294 was a matter of divergent views and a question of some complexity. Construing Section 165.294 in the England case, supra, the Supreme Court concluded in 1959 that Section 165.294 impliedly contemplated that both districts would continue to exist after the boundary change was made, but declined to specify how much of a district might be taken and how much might be left after a boundary change pursuant to that section, specifically “ * * * leav[ing] some remaining ambiguity for the future * * We are invited to give fresh consideration to the questions of statutory construction discussed in the England case, supra, and to resolve the ambiguity of which the Supreme Court spoke. We decline to do so, not only because it is unnecessary to a disposition of this appeal, but because we find it impossible to do so realistically.

As we have said, this cause was presented both in the trial court and here upon the pleadings and a record stipulation of facts. Probably because of their closeness to the situation, counsel have left us to speculate as to some of the facts, particularly the organization of the Golden City R-VI School District and the Jasper School District. We do not call attention to this ambiguity in the record to be critical of counsel’s presentation. Counsel for both parties have assumed — as is often the case — that we have the same intimate picture of the situation in our mind’s eye, so to speak, as do they, which is simply not the case. We know that the Spring Hill School District No. 27 of Jasper County is a three-director district, and from some incidental statements in the record we assume that the Golden City R-VI is a six-director district, lying mostly in Barton County. In this instance, we may not judicially notice the organization of the Jasper School District or the Golden City R-VI School District. State v. Mahaey, 19 Mo.App. 210, 214 (II). Depending upon the organization of the school districts involved, either former Section 165.170, which appeared to contain a specific limitation, or Section 165.294, which contained only an implied limitation, may be applicable. We are thus left to speculate which statute we shall specifically construe.

Nevertheless, the record is adequate for a proper disposition of the appeal. The primary ground upon which the trial court based its refusal to issue the peremptory writ was that the petition is not informative enough to advise the prospective voter of the boundary change being sought, and we agree. We wish to limit our opinion carefully, but to make our reasons for- decision as clear as possible, for fear of seeming perfunctory in our judgment.

As we have said, the record facts leave us in doubt whether the boundary change proposed was properly covered by former Section 165.170 or 165.294. But without undertaking any comparison of the similarities and differences of the two sections, it is apparent that both contemplated submission of an initiative proposition to the voters, and that the office of the petition was to formulate the proposition to be submitted. Neither statute prescribed the contents of the petition, but both required that the voters be given notice of “the desired change.” Section 165.170(1); 165.294(1).

In considering the kind of petition required to initiate a change of boundary between school districts, our courts have consistently adhered to the general principle that the school laws are to be liberally construed, and have held that the petition need not allege or set forth specifically the necessity for a change. England v. Eckley, supra, 330 S.W.2d at 745 [12]; State ex inf. Mansur ex rel. Fowler v. McKown, 315 Mo. 1336, 1343, 290 S.W. 123, 126 [5], that the description of the land involved in the change will not be technically scrutinized, England v. Eckley, supra, 330 S.W.2d at 746 [13] [14, 15], and that matters of limitation or exception contained in the statute need not be specifically negatived. School Dist. No. 14, Clinton County v. Sims, 193 Mo.App. 480, 482-483, 186 S.W. 4, 6 [1]. In other words, as the appellants argue, the petition is not a pleading and its sufficiency is not to be tested by subjecting its contents to technical analysis or scrutiny. On the other hand, it is obvious that some definite, concrete proposition must be set forth in the petition, for as the court stated long ago in School District No. 1 v. School District No. 4, 94 Mo. 612, 618, 7 S.W. 285, 287, “* * * the vote cannot have the effect * * * of changing [the boundaries] of old districts, unless it is specified [in the proposition: to be voted on] where those boundaries will be, should the proposition be adopted. A vote upon a general proposition * * * to change the boundaries of old districts, can have no force or effect whatever.” Otherwise put, unless the petition requests some definite change, there is nothing to vote upon. And, while we suppose the district clerk or secretary might, to a limited extent, rephrase or clarify the proposition for the purpose of giving notice if the petition were awkwardly or ineptly drawn, it has been consistently held that the petition itself should inform a voter reading it how his district is to be affected by the change of boundary, and what particular territory his district will lose or gain by reason of the change. In our view, the petition in this case is wholly insufficient because it simply does not state what changes are requested or what territory the districts affected are to gain or lose, or where the new boundary line would be. Indeed, without resort to extrinsic proof, one could not ascertain the nature of the proposition to which the signers had subscribed.

What the trial court had before it in this case was not whether the respondents had validly exercised their discretion by giving the reason they gave for failing to proceed; the trial court had to consider whether, upon the record presented and the facts stipulated, it was mandatory and imperative that the board or its clerk or secretary proceed with the posting of notices and the calling of an election. Granting that if a valid petition had been filed the respondents had no discretion to refuse to proceed and that mandamus would have been a proper remedy to compel them to do so, State ex rel. McIntosh v. Rainey, Mo.App., 397 S.W.2d 344, 346 [1, 2], yet the right to a peremptory writ depends upon the existence of a clear, unequivocal right to the relief requested, State ex rel. Breshears v. Missouri State Employees’ Retirement System, Mo., 362 S.W.2d 571, 573 [3]; State ex rel. Priest v. Gunn, Mo., 326 S.W.2d 314, 325, and the writ may not issue where the right is doubtful. State ex rel. Sho-Me Power Corporation v. Hawkins, Mo.App., 337 S.W.2d 441, 444, and cases cited note 9. In this case, respondents had no valid petition before them requiring action, and the peremptory writ was properly refused. We wish to be perfectly clear and explicit in saying that we express no view whatever concerning the other, more complex issues laid before us, nor do we mean to comment in any way upon the subjective propriety of the board’s action.

For the reasons stated, the judgment is affirmed.

STONE, P. J., and RUARK, J., concur.

      . When the statutes concerning education and libraries were revised by the Seventy-Second General Assembly in 1963, both these statutes were repealed and replaced. Former Section 165.170 was repealed and replaced by L.1963, p. 236, §§ 3-68 and 3-69, and Section 165.294 was repealed and replaced by L.1963, p. 226, § 3-42. The material formerly covered by Section 165.170 is now covered by Sections 162.-681 and 162.691, RSMo (1959), Cum. Supp.1965, and Y.A.M.S., and that covered by Section 165.294 is now found in Section 162.431, RSMo (1959), Cum.Supp. 1965, and Y.A.M.S. The effective date of the revision was expressly deferred to July 1, 1965, by L.1963, p. 335, § 16, and the former statutes were in effect when this controversy arose.

      . State ex inf. Mansur ex rel. Fowler v. McKown, supra, 315 Mo. at 1343, 296 S.W. at 126 [5]; State ex rel. Rose v. Job, 205 Mo. 1, 28, 103 S.W. 493, 500; Mason v. Kennedy, 89 Mo. 23, 30, 14 S.W. 514, 515 [2]; School District No. 1 v. School District No. 4, supra, 94 Mo. at 618-619, 7 S.W. at 287; School Dist. No. 14 Clinton County v. Sims, supra, 193 Mo.App. at 483, 186 S.W. at 6 [2].


author: MONTGOMERY, Judge.

text:
    Robert MATTHEWS, etc., Petitioner, v. J. Miles POUND, Judge, etc., Respondent.
    Court of Appeals of Kentucky.
    May 17, 1966.

      Robert Matthews, pro se.
    J. Miles Pound, pro se.
   MONTGOMERY, Judge.

Robert Matthews, the Attorney General of the Commonwealth of Kentucky, petitioner, filed this action against J. Miles Pound, Judge of the Jefferson Circuit Court, Criminal Branch, respondent. The petitioner asks that the respondent be directed to make available to the petitioner the “Items” or copies thereof referred to in the report of the April 1966 Grand Jury of Jefferson County for use by petitioner in his official capacity. The matter has been submitted on the pleadings and exhibits. The respondent says that the petitioner was denied the “Items” because the grand jury foreman had asked the respondent not to release or make public the “Items” in order that the persons referred to therein would not be “seriously jeopardized” by inmates of the penal institutions or by those previously paroled from the penal institutions.

The grand jury report indicates that certain parole board members may be chargeable with activities constituting violations of the laws of the Commonwealth. In the report are nine “Items” which have been impounded by the respondent. It is claimed that without the “Items” the report is incomplete and cannot be understood or properly evaluated by the petitioner, the Governor, or interested Commonwealth’s attorneys in other judicial districts, all of whom may be required to take official action within their respective areas of responsibility if the charges in the report are of any substance, and that without access to or knowledge of the “Items” none of such officials can determine effectively if further action on his part is required.

No indictments were made on the charges. A reading of the report reveals that no recommendation is made to the succeeding grand jury to make further investigation.

On May 2, 1966, petitioner was requested by the Governor of Kentucky, acting pursuant to KRS 15.200, to participate and intervene in the matters relating to the grand jury report on the parole board in the Jefferson Circuit Court, any other courts of the state, and before any duly constituted grand juries in this state. In the request reference was made to the authority of the Governor to remove members of the parole board for cause under KRS 439.320. The Commonwealth’s attorneys of two other judicial districts, pursuant to KRS 15.190, have requested petitioner’s assistance in regard to such matters concerning the parole board as may have arisen in their respective districts. Petitioner’s motion for use of the “Items” denied by respondent was made pursuant to the request of the Governor and the two Commonwealth’s attorneys, as well as in his official capacity as Attorney General.

Petitioner contends that the “Items” referred to in the report are a part of the report incorporated by reference; that as such they have passed from the custody of the grand jury under RCr 5.24; that he is an “Attorney for the Commonwealth” within the purview of RCr 5.24(2) and RCr 1.06(b), both in his capacity as chief law officer of the Commonwealth and in connection with rendering assistance to two other Commonwealth’s attorneys; and that the respondent is acting beyond his jurisdiction and in excess of his authority.

A grand jury is an inquisitorial and accusing body. 38 C.J.S. Grand Juries § 1, page 980. It originated with the Assise of Clarendon issued in 1166. Jenks, A Short History of English Law, page 40. It is the duty of the grand jury “to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge.” RCr 5.02. To this end the grand jury may summon witnesses and compel them to testify under oath. RCr 5.04 and 5.12. It is the duty of “[t]he attorney for the Commonwealth, or his assistant” to assist the grand jurors in the performance of their duties by examining witnesses and giving legal advice and, when requested, by drafting indictments. RCr 5.14. Thus, it is seen that the duties of the grand jurors and the prosecuting attorney are closely related to the end that the proper presentation of criminal charges shall be made.

It is further the duty of the grand jury to report its action on such cases as have been submitted to it and the duty of the court and Commonwealth’s attorney to see that this is done. Rion v. Commonwealth, 62 Ky. (1 Duvall) 235. Normally, this report includes the indictments found, the statutory reports required, and any recommendations concerning matters requiring the attention of a future grand jury. The work of the grand jury as a body is concluded by its report and subsequent discharge. Cf. Marcum v. Bradley, Ky., 385 S.W.2d 165. It is, therefore, incumbent on the court and the Commonwealth’s attorney to see that the report is complete since that particular grand jury, once it has been discharged, cannot be called back to correct the report or to take further action.

When the April 1966 Grand Jury of Jefferson County produced its report in court, the court, upon learning that certain portions denominated as “Items” therein had not been included, should have refused to accept the report. The jury should have been directed to return to its room and to include the “Items” in full in the report or to omit any reference thereto. There is no authority cited and none found which permits two grand jury reports, one of which is secret, however meritorious the purpose of the grand jurors may have been. The reason for the request for secrecy does not justify suppressing any portion of the matters the grand jury sees fit to report to the court.

The fault involved in an incomplete report is obvious. If the “Items” indicate the necessity for further investigation leading to possible criminal prosecutions, then they should have been included with the recommendation of the grand jury as an aid to the prosecuting authorities. If the “Items” have no meritorious basis for future investigations or prosecutions, they have no place in the grand jury report. In the absence of the “Items” from the report, it is vague; it may be misleading and subject to misconstruction; and it cannot be properly understood and evaluated as to future official action that may be required. Again referring to the serious duties and responsibilities of such an inquisitorial and accusing body, it has been held that in the absence of statute a grand jury has no right to file a report reflecting on the character of conduct of public officers or citizens unless it is followed by an indictment. Coons v. State, 191 Ind. 580, 134 N.E. 194, 20 A.L.R. 900; Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N.W. 141, Ann.Cas.1916E, 223. When the report does not amount to an indictment or presentment, it has been held that such report is not privileged and may be the basis for a libel action. Poston v. Washington, A. & Mt. V. R. Co., 36 App.D.C. 359, 32 L.R.A., N.S., 785. Thus, it is in the interest of the grand jurors to see that all matter which is believed to be a proper basis for future investigation and prosecution should be included in the report. Accusations with substance lacking are baseless.

Accordingly, it is concluded that the “Items” referred to in the April 1966 Grand Jury Report of Jefferson County are incorporated therein by reference as a part of the report and that the respondent had no right to impound such “Items.” It should be noted that an original ground for the action taken was sought to be based on the secrecy required by the grand jury. RCr 5.24 is no longer relied on in the response and is not considered as pertinent.

The right of the petitioner to have access to the “Items” has been further questioned on the apparent theory that he as the Attorney General has no right to such access.

The Attorney General has such duties as may be described by statute. Kentucky Constitution, Section 91. Additionally, he has certain common law duties and responsibilities. Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820; Commonwealth ex rel. Ferguson v. Gardner, Ky., 327 S.W.2d 947, 74 A.L.R.2d 1059. By statute it is prescribed that he is the chief law officer of the Commonwealth. KRS 15.020.

The duties of the Attorney General have been enlarged by KRS 15.190, 15.200, and 15.210. So far as is pertinent, KRS 15.200 provides:

“Whenever requested in writing by the Governor, or by any of the courts or grand juries of the Commonwealth, or upon receiving a communication from a sheriff, mayor, or majority of a city legislative body stating that his participation in a given case is desirable to effect the administration of justice and the proper enforcement of the laws of the Commonwealth, he may intervene, participate in, or direct any investigation or criminal action, or portions thereof, within the confines of the Commonwealth of Kentucky necessary to enforce the laws of the Commonwealth.”

The Governor has requested such participation in this matter.

KIRS 15.190 provides in part that a Commonwealth’s attorney may request the Attorney General’s assistance “in the conduct of any criminal investigation or proceeding.” Separate requests for assistance from the Commonwealth’s attorneys of the twelfth and forty-eighth judicial districts have been received by the Attorney General.

Pursuant to KRS 15.190 and 15.200 and the requests made thereunder, it became the duty of the Attorney General to take the appropriate action therein contemplated. RCr 5.14 describes the duties of the prosecuting attorney in relation to the grand jury. It refers to “the attorney for the Commonwealth.” This term is specifically defined as including “the Attorney General * * * exercising functions assigned to them by law, and an authorized assistant of any of them.” RCr 1.06(b). Thus, it is clear that the Attorney General is included within the purview of RCr 5.14.

It, therefore, is concluded that the petitioner, in view of the requests made pursuant to statute, as the chief law officer of the Commonwealth, charged with the responsibility of law enforcement, was entitled, for use in his official capacity, to have access to the entire April 1966 Grand Jury Report of Jefferson County, including the “Items” impounded which were a part of the report incorporated by reference; that the request of the grand jury for im-poundment was nothing more than a recommendation which should be disregarded and treated as surplusage; and that the respondent had no right to impound or withhold such “Items” or omitted portions of the report from the petitioner.

The order granting such relief has been entered.


author: DAVIS, Commissioner.

text:
    Frank URBAN, Appellant, v. Frances WALKER, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Rehearing Denied June 17, 1966.

      Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellant.
    C. M. Leibson, Louisville, for appellee.
   DAVIS, Commissioner.

Frances Walker, appellee, obtained verdict and judgment awarding her $10,000 against appellant Frank Urban, as compensation for her alleged injuries, medical expenses and loss of time resulting from her fall down a stairway in an apartment building owned by appellant in Louisville. Appellant presents these assignments of error for reversal: (1) the trial court erroneously instructed the jury, thereby imposing absolute liability upon appellant; (2) competent evidence was erroneously excluded; (3) incompetent evidence was erroneously admitted; (4) appellee’s counsel made prejudicially inflammatory remarks in his closing argument to the jury, and (5) the court should have ruled as a matter of law that the appellee was guilty of contributory negligence, or assumption of risk.

The evidence for appellee discloses that on December 7, 1961, she fell down a stairway in a building owned by appellant. Appellee had gone to the building to make a business call upon a tenant living on the third floor of the building; she had gone there at the invitation of the tenant. The accident happened between 7:30 and 8:00 p. m. When the appellee had climbed the stairs on her way to visit the tenant she had observed that the lighting on the stairs was somewhat dim, but she considered it as sufficient for the occasion. She said that she then noticed that there was no light over the stairs between the first and second floors. Although there was a light fixture and a window at the landing between the first and second floors, appellee said that there was no light burning in the fixture, and it was so dark at the point that she had not been aware of the existence of the window or the light fixture before the accident.

Appellee’s version and theory of the accident is that a light on the second floor did cast some light along the stairway between the second and first floors, but that the intervention of her own body between the light source and the stairway, as she descended the stairs, coupled with the physical arrangement of the premises, caused a deceptive shadow to be thrown upon the landing — causing her to believe there was a step off the landing at a different place from where the actual step existed. This condition, she explained, induced her to step on the shadow — for a step — in such way as to cause her to lose her balance and fall. At the time appellee was carrying her sample case in her right hand (the case weighed about 20-25 pounds) and her handbag was slung over her left hand.

Mr. and Mrs. Richard Smith were tenants in the appellant’s building, with quarters on the second floor. They heard the noise incident to appellee’s fall and Mr. Smith went to appellee’s aid. Both he and Mrs. Smith testified that the overhead lights were not burning at the time of the accident; that rays from hurricane lamp fixtures on the second floor wall cast dim light upon the stairway between the second and first floors. As Mrs. Smith expressed it: “The day, about three days before Mrs. Walker fell, I fell down the same set of steps for the same reason, because it cast a shadow on the landing and makes it appear that the landing ends before it does.”

Mr. Smith testified that he notified appellant of the fact that his wife had fallen and that the lights were not working properly — and added that there had been no correction in the inadequate lighting situation between the time of his wife’s fall and the time appellee fell. Appellant denied this.

Appellant contends that the effect of the court’s instruction number five was to impose absolute liability upon him. We have read the instructions, and are unable to accord them that interpretation. The first instruction required appellant to “ * * * exercise ordinary care to keep and maintain the steps * * * in a reasonably safe condition^” The fact that the jury was told that such duty included the duties to provide adequate artificial lighting “whenever natural lighting is inadequate” and to “provide a handrail on at least one side” was qualified by the “exercise of ordinary care” principle. We find no merit in the contention that absolute liability was imposed by the instructions.

Neither are we persuaded that error pervaded the somewhat inept wording of the damage instruction (No. 5) as it related to proximate cause. The • first instruction specifically required the jury to find that any injury to appellee was “ * * * as the direct and proximate result of said failure on the part of the defendant * * * ” before any award to appellee could be made. The instructions are to be read in their entirety. No merit is found in appellant’s attack upon the instructions.

The complaint about excluded evidence relates to appellant’s effort to question a doctor. Appellant asked the doctor whether the term “functional condition” had a definite meaning in the medical profession; the doctor responded that it did, and told what that meaning is. Thereupon, appellant’s counsel sought to have the doctor read a notation made by another physician on the hospital chart of appellee; the court sustained appellee’s objection, to which appellant’s counsel responded: “The point I am making is the term ‘functional condition’ has a meaning to all doctors.” There the effort ended. We think appellant may not complain for at least two reasons : one, the doctor had already said what “functional condition” denotes, and two, the appellant made no avowal as to what evidence he intended to elicit.

Neither do we find merit in appellant’s claim that improper evidence was admitted. The first attack on this ground relates to evidence from Mrs. Smith that there was no overhead light in the second-floor hall. It is reasoned by appellant that the evidence was irrelevant, since the accident did not occur on the second floor. The difficulty with that position is that it was shown that the absence of the light on the second floor played a part in creating the deceptive condition on the landing where appellee fell. We consider the evidence to have been competent and relevant.

The other complaint about admitted evidence deals with the matter of Mrs. Smith’s prior accident. We think that evidence was proper because it related directly to the issue as to whether appellant had notice of the claimed dangerous condition. Moreover, the detail in which Mrs. Smith explained that her fall was brought about by the same deceptive condition — coupled with its proximity in time to the accident at bar — brings her evidence within the rule which permits evidence of prior accidents. See Mackey v. Allen, Ky., 396 S.W.2d 55, 57; F. W. Woolworth Co. v. Brown, 258 Ky. 29, 79 S.W.2d 362; Chesapeake & O. R. Co. v. Meyers, 150 Ky. 841, 151 S.W. 19; 70 A.L.R.2d 167, et seq. It is observed that in Mackey and Meyers, just cited, we required an admonition to be given by the trial judge as to the limited purpose of the testimony. None was given here; nor was one requested. In these circumstances we hold that appellant may not be heard to complain of this evidence.

In his closing argument, counsel for ap-pellee said:

“ * * * the evidence shows and shows conclusively that these things happened to her and they were painful and it was a horrible terrifying experience and nobody can feel another person’s pain. I can’t translate it to you. I can tell you that pain is something that is so bad that they can electrocute you and kill you under the law, but they can’t submit you to pain.
Mr. Woodward: I object to that argument. It is intended to be prejudicial.
The Court: Go ahead.
Mr. Leibson: Under the law you can’t submit anybody to pain for any crime. Pain is the worst thing imaginable. * * * ff

It is contended that this argument was so inflammatory and improper as to require reversal. We do not agree. It is established that counsel are permitted latitude in closing arguments, but must not appeal to the passions and prejudices of the jury in a studied purpose to arouse those passions and prejudices by statements not supported by the record. Cf. Gunterman v. Cleaver, 204 Ky. 62, 64, 263 S.W. 683, 684. It is our view that the challenged argument simply may not be characterized as falling within the area of improper argument. Citations of proper and improper arguments could be multiplied, but no useful purpose would be served. See, for example, Lanning v. Brown, Ky., 377 S.W.2d 590, for a recent discussion of the problem.

Finally, appellant contends that as a matter of law, appellee was either con-tributorily negligent or she assumed the risk. This argument is premised on the fact that appellee saw that the stairs were dimly lighted when she ascended them, and again when she came down. Thus, it is reasoned, she took her chances. But ap-pellee explained that she considered that the lighting, while dim, was sufficient — and it was only after the accident that she came to know that the deceptive shadow had been cast. Under this showing, we think a jury issue was presented as to appellee’s exercise of care for her own safety; the jury has resolved that issue adversely to appellant, and we perceive no error in its so doing.

The judgment is affirmed.