author: DAVIS, Justice.

text:
    Mary Oliver LYLES, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 7456.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1963.
    Rehearing Denied. March 26, 1963.

      Jim S. Phelps, Davis, Phelps, Liles, Norton & Gray, Morgan H. Johnson, Anthony J. Maniscalco, Houston, for appellant.
    Jerry V. Walker, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   DAVIS, Justice.

A Workmen’s Compensation case. Monroe Oliver Lyles was injured on July 13, 19S9. He was working for H. L. Allen Oil Company in Houston, Harris County, Texas. He died on June 8, 1960, of an acute myocardial infarction. ■ Plaintiff-appellant, Mary Oliver Lyles, a widow, prosecuted the case against defendant-appellee, Texas Employers’ Insurance Association. The claim was based-upon disability benefits at the rate of $35.00 per week from July 13, 1959, to June 8, 1960, and for death benefits on the theory that the death resulted from the injury, and for medical and hospital bills as the result of said injury. The appellee stipulated that Monroe Oliver Lyles received an injury on July 13, 1959. That he was permanently and partially disabled until the date of his death, and admitted liability until that time, together with the claim for medical and hospital bills. The case was tried to a jury. Only one special issue was submitted, which inquired whether or not the accidental injury sustained by Monroe Oliver Lyles on July 13, 1959, was a producing cause of his death. The jury could not agree upon an answer. They began deliberations on November 16, 1961, and advised the court that they were unable to reach a verdict on November 17, 1961. Based upon such instructions the appellee made a motion to discharge the jury, and to declare a mistrial.

There seems to have been some misunderstanding as to whether or not a mistrial was declared. Counsel for appellant understood the case was reset for trial on December 15, 1961. Nevertheless, the trial court made notations on his docket that the case was withdrawn from the jury. On December 14, 1961, attorney for the appellee wrote a letter to the attorney for the appellant, advising him that there would be a motion presented for judgment, and that the trial court had set the same for hearing for December 18, 1961. Attorney for appellant did not receive the notice. On December 18, 1961, the attorney for the appellee actually filed a motion for judgment. He did not furnish the attorney for the appellant with a copy of same, nor was any notice actually given to him of the hearing on the motion. Nevertheless, the trial court granted the motion for summary judgment, and rendered judgment that the appellant recover total permanent disability from July 13, 1959, to June 8, 1960, plus - medical and hospital benefits, but denied death benefits. The attorney did not receive the letter notifying him that a hearing on the motion for judgment was to be had until Dec. 26, 1961; neither did he receive a copy of the motion for judgment. On Dec. 28, 1961, attorney for the appellant filed a motion to strike the judgment, and a motion for a mistrial. The motions were summarily heard and overruled on January 2, 1962. On January 30, 1962, the trial court signed and entered a written judgment. The appellant filed a motion, and an amended motion for retrial, which was heard and overruled. She has perfected her appeal and brings forward nine points of error.

By her point One she takes the position that the trial court erred in withdrawing the case from the jury, and entering a judgment which denied plaintiff death benefits, because there was sufficient evidence to warrant a submission to the jury on the question of whether or not the accidental injury was a producing cause of the death of Monroe O'. Lyles.

According to the evidence, Monroe O. Lyles was injured while he was in the process of moving with a buggy a barrel of oil that weighed about 450 lbs in the warehouse of the oil company. There was no witness to the accident, but the same was stipulated by the appellee. Apparently the barrel of oil slipped and fell on the said Monroe O. Lyles, or injured him some way or another. The appellee makes the statement in its brief that, “The injury occurred when a barrel which Lyles was lifting fell upon him”. It resulted in an injury to his back, elbow, leg, and finger. Immediately after the injury the employer was notified, and they carried Lyles to the St. Luke Hospital. The family physician of Monroe O. Lyles was called to treat him. Because of the nature of the injuries and the highly nervous condition of Lyles, he was placed in a private room in a hospital, for which the hospital apparently charged $25.00 per day. On the day after the accident the employer and an agent of the appellee went to the hospital to see Lyles. Apparently there was some disagreement between them as to the •charges being made, and to the doctor that was treating him. As a result of all this, Lyles was fired from his job and the ap-pellee refused to pay the hospital and medi•cal expenses.

There were numerous telephone calls, and ■on the 3rd day after the injury, after a telephone call to Lyles, he immediately left the hospital without any orders from the Doctor or hospital authorities, and went home. He was confined to his bed, at home, for about two months. The family physician actually saw him a total of 41 times after the injury -and prior to his death. He did not see him •on the occasion of the acute myocardial infarction. A lot of the foregoing evidence was not allowed to go to the jury. Such refusal was error on the part of the trial • court. All the evidence pertaining to the •condition of Monroe O. Lyles as to the injury, as to the hospital treatment, about Lyles being fired, the argument about paying the hospital and medical expenses, and whether or not he had any money to pay hospital bills was admissible to show that the condition actually produced a cause of his death.

Dr. Leon Phillips was the family physician. He testified positively on the witness stand that the injury actually caused the acute myocardial infarction.' Based upon the evidence which he explained, it created a fact issue upon which the jury should have decided. As to whether or not the accident was a producing cause of the death, Dr. Phillips testified as follows:

“Q. I’m saying to you, sir, that the injury that was described to you as occurring in the warehouse of the H. L. Allen Oil Company, whether it happened or not, but assume it did, and the injury as described to you in which he injured his hand and his elbow and his back, and the complaints the man made to you as evidenced in your records and the hospital records: I’m asking you, doctor, based upon these facts—
“A. In this particular case it produced—
“Q. In this particular case, and as the question was as I phrased it, sir, the accident as described that occurred on July 13, 1959, would you have an opinion based on reasonable medical probabilty as to whether that incident as described was the producing cause of the acute myocardial infarction causing the death of Monroe Oliver Lyles on June 8th, I960?
“A. Are you talking about the entire course ?
“Q. Sir, the question is very clear. I asked you, sir, based upon the instance occurring in the warehouse some eleven months previously.
"A.- -Yes,-it did.
“Q. What is an acute myocardial infarction, Dr. Phillips'?
“A. An acute myocardial infarction is that condition which is produced by a thrombosis of a coronary vessel iii which the muscle : . . dies, • - ‘ •
“Q. And if the coronary thrombosis is caused by death o'f a muscle— '
“A.. That is an acute condition.
“Q. And are you saying that ah injury to the man’s back and to his hand caused that muscle in his heart to die?
“A. I didn’t say specifically the injury.
“Q. All right, sir. Are you then changing your answer ?
“A. No-, I’m not. I said the composite picture produced the coronary.
“A. ■ Yes, it produced it.
* * * * * ⅜
“Q. That incident—
“A. The incident incited the sequence of events that produced it.
“Q. The sequence of events ?
“A. Without the accident the man wouldn’t have * * * ”

Dr. Phillips testified of the bill of Exception as follows:

“Q. -Go right ahead.
“A. Well this man was' made to leave the hospital by his employer and by the insurance company who went into his room at St. Luke’s. They perpetuated a situation that was intolerable to the patient. Now, he got up and left, not discharged, but he left. They continued to harrass him to such an, extent at his home that it was almost terrible — I had as many as ,six calls a day from the harassment. The 'man was intently ill at home and because of this situation, you see, he would not — I asked him to go to the hospital, St. Jo’s,' and at which place I would take care of his bill. He refused to go because he said, ‘Doctor, I don’t have any money- * * * >
(Objections)
“Q. Go right ahead.
“A. Now, as this went on, the man’s-back was getting worse progres--sively. . I saw him in the office. It was, difficult because of the tenderness and everything else that went along with this thing to even examine the man well. And I think this would be verified! by the orthopedist who saw him later. I treated him, you see, and in spite of everything — . Now, this man was fired from his jobj I wanted him to-try to go back to work. He wanted to see what he could do, and he couldn’t do anything with the stress of the injury and the mental aggravation. This man continued into a phase of a difficulty, which by at the end of say six months, something like that, and I don’t remember just exactly, but he developed this myocardial failure.
“Now the myocardial failure is .a stress syndrome. A man doesn’t have to be lifting anything. It is the same syndrome that you get with ulcers, with a stress, and it can — it can come overnight. A man wakes up with an ulcer under an extreme stress. He, can lose all of his money one day and the very next day he will have an ulcer.
“Now, this is the thing that precipitated — one thing going into another.
“Now, the insurance company-stressed to this man that if he went to me, you see, that he wouldn’t get a dime. And I didn’t care whether he ever paid me. It wasn’t the thing of payment with me, but this man’s condition was such that he had to have some help from some source to live off of. This materially worried the man, and this was all in a precipitating factor that produced the whole grandiose picture of cardiac failure.
“Now, the cardiac failure predisposes to a coronary because there is not an adequate circulation to the heart, and you may bring up the picture as to why. I didn’t do EKG’s on this fellow, and x-rays, because he didn’t want them done because he was not able to pay for them. And there were many years that went by that I have treated this family, and you go through the record and you feel that — I just saw him for this and that, you see. This man needed help. He needed not only treatment, but he needed a little moral support. And you don’t have to have an EKG to make a diagnosis—
“A. —of a cardiac situation.
“Q. As I understand it, doctor, for the purpose of this bill of exceptions and for this purpose only, the Court has said to let you explain what you meant by 'psychosomatic experiences’. If you have anything else to say to explain that, please continue.
“A. The injury and the stress syndrome is psychosomatic.
“Q. Are you through, sir?
“A. That is your answer.
“Q. Are you through?
“A. I’m through.
“Q. All right.”

Dr. Phillips testified before the jury as follows:

“Q. All right. We will take out producing. Was an immediate cause, whether that was an immediate cause of the acute myocardial infarction which I asked you to assume was the cause of the man’s death on June 8th of 19—
“A. It was not the immediate cause.
“Q. All right, sir. And the incident as described that occurred at the ■ warehouse was not a cause of the acute myocardial infarction which was the cause of the man’s death ?
"A. It was.
“Q. The incident and the barrel — the barrel incident as described in this question and in your records, doctor, in that alone?
“A. It precipitated it.
“Q. Thank you.
“Now I’m going to ask you, doctor — I’m going to ask you a hypothetical question. * * * (The question was based upon the facts in the case).
“MR. WALKER: Your honor, I have numerous objections to that question : * * *.
“THE COURT: I overrule the obj ection.
“Q. Now, can you answer that, doctor? Omit the chest pains, sir, and can you then answer that ?
“A. It was the producing factor that terminated in this man’s death.”

The foregoing testimony is of such probative force it presents a fact issue for the jury. There was other testimony for the appellant by lay witnesses corroborating the testimony of Dr. Phillips. Another doctor testified for the appellee that the injury was not a producing cause of the death. Such testimony only created a fact issue for the jury to decide.

It is the duty of this court to review the record with all the evidence in the case that is relevant to the issues involved, and consider it in the light most favorable to the appellant, disregarding all conflicts and indulging in every intendment reasonably deducible from the evidence in favor of the appellant. City of Houston et al. v. Chapman, 132 Tex. 443, 123 S.W.2d 652; Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935; Wellington Oil Co. of Delaware v. Maffi, 136 Tex. 201, 150 S.W.2d 60.

The evidence presents an issue of fact which the jury must decide. In American Motorists Insurance Company v. Landes, 5 Cir., 252 F.2d 751, the Court had this to say: “ * * * The testimony was conflicting as to whether Landes’ strain aggravated the pre-existing tumor and was a producing cause of death. Resolving the conflicts and sifting'the facts and opinions was a jury function and the submission to the jury was proper. * * * ” That is a case where a man received an injury on July 15, 1955, and died on July 1, 1956. See, also, Maryland Casualty Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867, er. ref.; Texas Employers’ Ins. Ass’n v. Wade (Tex.Civ.App.), 197 S.W.2d 203, W/R, N.R.E.; Pacific Indemnity Co. v. Arline (Tex.Civ.App.) 213 S.W.2d 691, err. dism’d; Traders & General Ins. Co. v. Anderson (Tex.Civ.App.) 246 S.W.2d 290, err. ref.; Liberty Mut. Ins. Co. v. Murphy (Tex.Civ.App.) 205 S.W.2d 398, N.W.H. For cases holding that an injury can produce a cause of death see Texas Employers’ Insurance Association v. Williams, Tex.Civ.App., 297 S.W.2d 717, W/R, N.R.E.; American General Insurance Company v. Barrett et al. (Tex.Civ.App.), 300 S.W.2d 358, W/R, N.R.E. The point is sustained.

Since there is a fact issue, and the case must be reversed and remanded, the other points of error will not be discussed. They will be sustained, however, with the hope that in a future trial such errors will not occur.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ralph NEILL et al., Appellants, v. Robert J. COOK et al., Appellees.
    No. 3781.
    Court of Civil Appeals of Texas. Eastland.
    March. 8, 1963.
    Rehearing Denied March 29, 1963.

      Turpin, Kerr, Smith & Dyer, Midland, Christopher & Bailey, Ft. Worth, Plooser & Hooser, Big Spring, A. B. Culbertson, Ft. Worth, for appellants
    Guilford L. Jones, Big Spring, J. C. Hins-ley, Austin, for appellees.
   PER CURIAM.

Ralph Neill and other trustees of Center Point Common School District No. 7 of Howard County, individually, and as trustee for the school district, and the trustees of Gay Hill Common Consolidated School District No. 6 of Howard County, individually, and as trustees, brought suit against the members of the County Board of School Trustees of Howard County, the County Superintendent and ex officio Secretary of the County School Trustees and the trustees of the Big Spring Independent School District. Plaintiffs sought judgment declaring null and void and the setting aside of certain orders of the County School Trustees entered May 4, 1960. The orders complained of first annexed Center Point Common School District No. 7 to Big Spring Independent School District and then annexed Gay Hill Common Consolidated School District No. 6 to the Big Spring District. The case was tried before a jury which answered some of the special issues submitted but failed to answer others. The court received the verdict, found that the law and facts were with the defendants and entered judgment against plaintiffs based upon the pleadings, the evidence and the findings of the jury. Center Point Common School District and Gay Hill Common Consolidated School District have appealed.

The question involved is whether the annexations were valid. The evidence shows that on May 4, 1960, the County School Trustees of Howard County passed an order annexing Center Point Common School District No. 7, having less than 250 scholastics, to the Big Spring Independent School District, having more than 250 scho-lastics, under the provisions of Article 2922a, Vernon’s Ann.Tex.Civ.St., and then passed an order annexing Gay Hill Consolidated Common School District No. 6, having less than 250 scholastics, to the Big Spring Independent School District, under the same statutory provision. The County School Trustees also passed an order redefining the boundaries of the Big Spring Independent School District to include the territories which previously constituted the three separate school districts before the orders of annexation. Prior to the annexations the Big Spring District had a common boundary with the Center Point district, and the Center Point District had a common boundary line with the Gay Hill District so that all three could be included in a common boundary line.

Appellants contend in numerous points that the court erred in sustaining the orders of the County School Board annexing the defendant Common School Districts to the Big Spring District. Appellants contend that the orders of annexation are absolutely void; that the County School Board had no jurisdiction or power to make such orders; that Article 2922a V.A.T.C.S. granted no such power to the board; that contrary to the applicable statutory procedure such orders were entered in a summary fashion without the consent of and without notice of any kind to defendant Common School Districts; that the district formed greatly exceeds 100 square miles and no election was held as required by Article 2922c V.A.T.C.S.; that Article 2922a is not applicable and available in support of the action of the board under the facts of the case as shown by the evidence; that Gay Hill Common Consolidated School District was not contiguous to the Big Spring District; that as a consolidated district it was a creature of Article 2806 and could be dissolved only under authority of Article 2815a and not otherwise, because Article 2922a does not mention consolidated districts.

Article 2922a V.A.T.C.S. grants authority to the County School Trustees to do three things. It grants authority to group contiguous classified common school districts and independent school districts to form rural high school districts, authority to abolish rural high school districts on petition signed by a majority of each elementary district composing the rural high school district, and authority to annex certain types of common and independent school districts to other common and independent school districts. That portion of Article 2922a concerning annexation provides as follows:

“In each organized county in this state * * * the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred fifty (250) scholastic population to a common school district having four hundred (400) or more scholastic population, or to an independent district having two hundred fifty (250) or more scholastic population.”

The above quoted portion of Article 2922a authorizes the County School Trustees to annex common school districts having less than two hundred fifty scholastic population, such as those here involved, to an independent school district having two hundred fifty or more scholastic population such as appellee Big Spring Independent School District. There is no provision in Article 2922a, as amended in 1947,. requiring approval of the annexation by the trustees of the districts involved. There is no requirement for an election, nor is there a requirement for notice to the school districts annexed. Such authority on the part of the County School Trustees is supported by the plain wording of the statute and it has been upheld in the following cases. District Trustees, etc. v. Pleasanton Independent School District, Tex.Civ.App., 362 S.W.2d 122, Adkins v. Rogers, Tex.Civ.App., 303 S.W.2d 820, (Ref. N.R.E.), La Parita Independent School District v. School Trustees of Atascosa County, Tex.Civ.App., 281 S.W.2d 123,. (Ref. N.R.E.), Edwards v. Roberts, Tex.Civ.App., 233 S.W.2d 592.

There is no merit in appellants’ contention that the annexation orders are invalid because the school districts in question are not contiguous. State ex rel. Childress v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777; Adkins v. Rogers, supra and cases cited therein. Article 2806 V.A.T.C.S., concerning elections to consolidate,, has no application to annexations under Article 2922a and the procedure provided by Article 2806 is not required to be followed in an annexation under Article 2922a. Contrary to appellants’ contention an annexation and a consolidation are not the same thing although the end result may be in each case to combine the districts. A consolidation involves the power delegated by the Legislature to voters of school districts. An annexation under Article 2922a involves the power granted to county school trustees to annex school districts to other school districts. We overrule appellants’ contention that the annexation was void because the procedure required in connection with Article 2806 was not followed. Trinity Independent School District v. District Trustees, Tex.Civ.App., 135 S.W.2d 1021, (Writ Ref.), Board of District Trustees of Lanier Common School District No. 49, Cass County v. Board of County School Trustees, Tex.Civ.App., 232 S.W.2d 100, (Ref. N.R.E.), Mt. View Common School District v. Blanco County Board of School Trustees, Tex.Civ.App., 149 S.W.2d 224.

Article 2922c V.A.T.C.S. provides that “[n]o rural high school district * * shall contain a greater area than one hundred square miles * * * except that the county school board * * * may form rural high school districts, as provided in Article 2922a, containing more than one hundred square miles,, upon a vote of a majority of the qualified electors * * *” in the proposed district. It is noted that the quoted provision applies only to that portion of Article 2922a concerning the formation of a “rural high school district”, and has no application whatsoever to the provision therein for annexation of one or more school districts to another school district. No provision is found for an election in annexation cases even though the area may exceed 100 square miles. We overrule a_ pellants’ contention that Article 2922c applies to all of Article 2922a including the provision for annexation.

The contention that Article 2922a does not authorize the annexation of a consolidated common school district such as appellant Gay Hill District to another school district is likewise not well taken. The Gay Hill District was a common school district of less than two hundred fifty scholastics and as such was included among those districts which Article 2922a provides the county school trustees may annex to other described districts. The fact that it was a consolidated district is not material. Numerous cases have so held. See Duffey v. Anderson, Tex.Civ.App., 273 S.W.2d 649, District Trustees of Midway Common School District No. 7 and of Leon County v. County School Trustees of Leon County, Tex.Civ.App., 203 S.W.2d 860, State ex rel. Lowe v. Codenhead, Tex.Civ.App., 129 S.W.2d 743, (Writ Ref.), District Trustees, etc. v. Pleasanton Independent School District, supra.

Appellants further contend that County School Trustees do not have authority to annex one school district to another by summary order; that the purported annexation without notice to appellants and without a hearing is therefore void; that the statute does not grant such authority and that if it should be held that the statute does purport to grant the authority it would deny appellant common school districts due process guaranteed under Article 1, Sec. 19, of the Texas Constitution and the 5th and 14th Amendments to the Constitution of the United States. We cannot agree with this contention. The Legislature has the power to create school districts at will without any kind of notice. It also has the power to change the boundaries of or to abolish school districts, to consolidate them, to group them for high school purposes, to annex school districts to other school districts and to provide the mode and agencies for effecting such action. State v. Brownson, 94 Tex. 436, 61 S.W. 114; Prosper Independent School District v. County School Trustees, 58 S.W.2d 5, (Tex.Com.App.). We have already noted that the wording of Article 2922a and the holding of several cases show a legislative grant of authority to county school trustees to annex certain school districts to other designated districts without any kind of notice to the annexed districts. In this connection the San Antonio Court of Civil Appeals states as follows in the case of District Trustees, etc. v. Pleasanton Independent School District, supra:

“Article 2922a grants discretionary authority to county school trustees to annex common school districts to independent school districts, and the county trustees may act on their own motion without a petition from or notice to- the school districts affected. Since the 1947 amendment to the statute, they may do this without the approval or consent of the districts affected.”

Concerning the constitutionality of such a statute, in Prosper Independent School District v. County School Trustees, 58 S.W.2d 5, (Tex.Com.App.), the court said:

“The validity of the act is assailed on various grounds. One of those grounds has reference to the omission to provide for notice to and hearing of the trustees of the district from which territory is proposed to be detached. The contention in this respect is to the effect that the absence of such a provision renders the act invalid under the due process clause of the Constitution (article 1 § 19). This contention necessarily presupposes that a school district, in its corporate capacity, has a vested right in respect of the territorial boundaries of the district as originally established. For, if there be no such vested right in the corporation, with respect to the territorial extent of the district, the due process clause, of course, would have no application. That no such vested right exists is hardly debatable; for a school district is, at last, but a subdivision of the state for governmental purposes. * * * the Legislature, by virtue of the above constitutional provision, has authority to change, at will, the territorial boundaries of any school district, and to provide the mode and agencies by which such change shall be effected.”

Appellants also urge that there is no purpose expressed for annexation as provided in Article 2922a; that there is no provision for the procedure to be followed or which defines the limits within which the county school trustees may act; that a legislative body cannot delegate unlimited legislative power; that although certain powers may be delegated to the discretion of administrative agencies, it is required that the grant of such power must be accompanied by prescribed standards sufficient to guide the discretion conferred; that otherwise the power granted is legislative and is unlawful. In the case of State ex rel. Childress v. School Trustees of Shelby County, 150 Tex. 238, 239 S.W.2d 777, at page 780, it is held by our Supreme Court that there is a purpose in that portion of Article 2922a dealing with the power to annex and that purpose is to provide a method for providing better and stronger schools. The method of procedure is to order the annexation when in the sound discretion of the county school trustees such action is indicated by the educational needs of the territory involved. Contrary to appellants’ contention there is a stated limitation on the power of county school trustees to annex under the provisions of Article 2922a. Only school districts of certain classifications may be annexed to other classified districts. In any event numerous cases have held that the Legislature has authority to grant discretionary power to county school trustees to group classified school districts for high school purposes, or to annex classified school districts to other classified school districts as provided in Article 2922a regardless of the desire or consent of the districts or territories affected, and to make such annexations without notice or hearing and without an election. District Trustees, etc. v. Pleasanton Independent School District, supra, La Parita Independent School District v. School Trustees of Atascosa County, supra, (Ref. N.R.E.), County School Trustees of Callahan County v. District Trustees, Tex.Civ.App., 192 S.W.2d 891, (Ref. N.R.E.), Stinson v. Graham, Tex.Civ.App., 286 S.W. 264, (Writ Ref.), 78 C.J.S. Schools and School Districts § 27, pages 677, 678.

Special issues numbers 1 and 2 of the court’s charge inquired if the annexation of the Center Point and Gay Hill School Districts to the Big Spring Independent School District “was not for the benefit of the patrons and pupils present and prospective” of the respective Center Point and Gay Hill Districts. The jury did not answer these special issues. Appellants urge points complaining of the action of the court in accepting the verdict and in rendering judgment thereon rather than declaring a mistrial because of the failure of the jury to answer special issues numbers 1 and 2. Appellants contend that such special issues inquired about ultimate issues in the case and that in the absence of findings thereon favorable to appellees the judgment must be reversed and the cause remanded.

In answer to special issues numbers 4 and 5 it was found by the jury, in effect, that the decision of the county school trustees in annexing Center Point School District and Gay Hill School District to Big Spring Independent School District was not arbitrary and capricious.

In our opinion special issues numbers 1 and 2, 3 and 4 are concerned with the same general proposition. Actually the ultimate and controlling question involved was whether or not the acts of the County School Trustees in annexing the Common School Districts to the Big Spring Independent School District were arbitrary and capricious. The issues inquiring whether or not such annexations were for the benefit of the patrons and pupils were evidentiary and were material only to the extent that they might be involved in the determination of the matters inquired about in special issues numbers 4 and 5. The court did not err in overruling appellants’ motion for a mistrial because of the jury’s failure to answer issues numbers 1 and 2.

County School Trustees are vested with a broad discretion. The exercise of this discretion will not ordinarily be interfered with by the courts except in a case of clear abuse of discretion, arbitrary action, violation of the law, fraud, bad faith or the transcending of the board’s authority. 78 C.J.S. Schools and School Districts § 99, pages 849, 850, State Line Consolidated School District No. 6 of Parmer County v. Farwell Independent School District, 48 S.W.2d 616, (Tex.Com.App.). As heretofore indicated, the county school trustees’ action in entering the orders of annexation was not in violation of the law. It was not void because of a lack of statutory or constitutional authority. The evidence bearing upon the question of an abuse of discretion indicates that Gay Hill Consolidated District is a 9 teacher school with 121 scholastics. Center Point District is a 4 teacher school with 83 scholastics. Each of these common school districts maintains a 9 months school year. Center Point teaches through the first 8 grades and Gay Hill also teaches the first 8 grades. The average daily attendance for the 1959-60 school year of Gay Hill was 93.83 and for Center Point 76.49. The average annual per capita cost of educating elementary scholastics in the Gay Hill School was approximately $R175.00 and in the Center Point School was $280.00. The Gay Hill district paid the Big Spring district $279.00 per scholastic year as tuition on the high school students transferred to that district. The evidence shows that the Big Spring Independent School District operates 9 elementary schools, 3 junior high schools and a senior high school; that it employs 300 teachers and has an average daily attendance in the school year 1959-60, 6,051.14 scholastics; that the Big Spring District is the only school district in Howard County accredited by the Southern Association; that Big Spring operates separate junior high schools offering elective courses taught by specialists in each course, and provides special services including school nurses, counselors, special music and foreign languages; that it also provides special instruction for exceptional students and gives aptitude tests to students throughout the school system. It was further shown that for the school year 1959-60 Gay Hill transferred to the Spring District 20 high school scholastics and transferred to Big Spring all their elementary negro scholastics, and to Gail 18 scholastics; that Center Point School District transferred to the Big Spring District 22 high school scholastics and transferred 4 scholastics to Coahoma District. The average annual per capita cost for education of scholastics in the elementary schools of the Big Spring District was approximately $300.00 and in the junior and senior high schools was approximately $390.00.

In determining whether the action of county trustees is a valid exercise of a discretionary power or is arbitrary and capricious, courts will generally apply the substantial evidence rule, and if the action of the board is reasonably supported by substantial evidence, the order will be affirmed. Patillo v. County School Trustees of Wilson County, Tex.Civ.App., 235 S.W.2d 924, 925, State ex rel. Blooming Grove Independent School District of Navarro County v. County Board of School Trustees, Tex.Civ.App., 334 S.W.2d 588, (Ref. N.R.E.), Young County Board of School Trustees v. Bailey, Tex.Civ.App., 61 S.W.2d 130, (Writ Ref.), Board of District Trustees of Lanier Common School Dist. No. 49, Cass County v. Board of County School Trustees of Cass County, Tex.Civ.App., 232 S.W.2d page 100, County School Trustees of Callahan County v. District Trustees, Tex.Civ.App., 192 S.W.2d 891, (Ref. N.R.E.).

The jury found that the decision of the County School Trustees of Howard County in annexing the Center Point and the Gay Hill Districts to the Big Spring District was not arbitrary and capricious. This finding was, in effect, a jury determination that the action of the County School Board was not an abuse of discretion. Actually, the question of whether there is an abuse of discretion or, more specifically, whether there is “substantial evidence” to support the action of the board is determined by the court and not by a jury. Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619. The test is whether the evidence, considering the record as a whole, is such that reasonable minds might reach the same conclusion. The evidence in our opinion is such that reasonable minds might well reach the same conclusion reached by the County Board in annexing the appellant Common School Districts to the Big Spring District. Such evidence is “substantial evidence and is sufficient to support the determination and the orders made by the Board.

The evidence does show, and the jury found, that in 1959, prior to the time of an election held to determine the question of consolidating the Gay Hill District with the Borden County School District, the chairman of the County School Trustees of Howard County publicly stated in substance that the matter of annexing appellant Common School Districts to the Big Spring District had never been considered and would not be considered without the knowledge of such Common School Districts. Appellants particularly urge that the action of the county school trustees in annexing them to the Big Spring District without notice under these circumstances shows fraud and an abuse of discretion. This contention is likewise untenable. Past policies of County School Trustees are not required to be followed in matters within their discretion. 78 C.J.S. Schools and School Districts § 99, p. 850. Motive is not material unless it results in an abuse of discretion. As heretofore noted the decision reached by the County School Trustees of Howard County was within the discretion of tire Board and, therefore, should not be disturbed.

Appellee County Board of School Trustees of Howard County has filed herein a resolution confessing error in the judgment and requests this court to enter judgment for appellants reversing the judgment of the trial court and setting aside the prior orders of the Board annexing appellant School Districts to the Big Spring School District. The order of the Board annexing appellant School Districts became final and could not be rescinded at a subsequent meeting. District Trustees, etc. v. Pleasanton Independent School District, (Ref. N.R.E.), supra, and cases cited therein. Since the County School Board has no power to rescind its final order at a subsequent meeting it likewise has no power to confess error herein where none exists.

We have carefully examined the points urged by appellants and find no reversible error.

The judgment of the trial court is in all things affirmed.


author: GRISSOM, Chief Justice.

text:
    CHARLES PFIZER AND COMPANY, Inc., Appellant, v. Leonard BRANCH, Appellee.
    No. 3780.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1963.
    Rehearing Denied March 29, 1963.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Scarborough, Black & Tarpley, Abilene, for appellee.
   GRISSOM, Chief Justice.

Leonard Branch’s minor sons owned two calves that had just been “worked” which they intended to develop as 4 — H Club calves. Mr. Branch bought “Combiotic” from a store in Stonewall County. It was manufactured, sold and distributed by Charles Pfizer and Company, Inc., for the purpose of having it injected into animals by its purchasers to prevent infection. Mr. Branch properly injected the Combiotic. There was a severe reaction. One calf died within fifteen minutes after the injection. Mr. Branch tried unsuccessfully to obtain the services of a veterinarian but was not able to do so until the next morning. When the veterinarian arrived the next morning the second calf was dead. Branch sued Pfizer for damages caused by the alleged negligence of Pfizer in, among other things, failing to adequately warn purchasers of the medicine that if a severe reaction was caused by injection of the Com-biotic that a certain antidote should be promptly given. Pfizer’s plea of privilege was overruled. Pfizer has appealed.

Appellant contends that the court erred in overruling its plea of privilege because appellee (1) failed to prove a cause of action against it, (2) failed to prove by a preponderance of the evidence that any negligent act or omission was committed by appellant in Stonewall County and (3) failed to prove that any negligent act or omission of appellant was a proximate cause of his damages. Appellee says the court did not err in overruling appellant’s plea of privilege because appellee did prove by a preponderance of the evidence the cause of action alleged and that a part thereof arose in Stonewall County, and, therefore, the suit was maintainable in Stonewall County by virtue of exception 23, Article 1955, Vernon’s Ann.Civ.St. He further says there was sufficient evidence to support the court’s implied findings that appellant was negligent and that appellee’s damages were proximately caused by said negligence.

There was evidence from which the trial court could properly find that Combiotic was manufactured, sold and distributed by appellant for the purpose and with the intention that it should be used by purchasers as it was used by Mr. Branch; that, while the package had printed thereon a warning that if cattle reacted to the medicine its use should be discontinued, the warning was inadequate and that the notice should have warned purchasers that if a severe reaction was caused by the medicine a certain antidote should be promptly given. There was evidence that it was well known in the drug manufacturing industry that some cattle would have severe reaction to such a medicine and that when they did, unless certain well known antidotes were promptly given, the cattle would probably die.

Branch had the burden of alleging and proving a cause of action against Pfizer and that a part thereof arose in Stonewall County. From the matters mentioned we conclude that he did prove a cause of action against Pfizer and that a part thereof arose in Stonwall County. Therefore, we hold that the suit was maintainable in Stonewall County under exceptions 23 and 27, Article 1995. Mid-West Oil Corporation v. Eisner, Tex.Civ.App., 341 S.W.2d 185, 187.

Appellant contends that, assuming negligence was shown, appellee failed to show that such negligence was a proximate cause of his damage. It argues that this is necessarily true because Mr. Branch testified that he did not read the warning on the container, towit, that if a calf reacted use of the medicine should be discontinued and therefore, if it had given the warning ap-pellee says should have been given, that Mr. Branch would not have read it. Mr. Branch testified that he had been using this medicine for about eight years and that he had not suffered from its use prior to the death of these calves. The court could have reasonably concluded that during the time this medicine was used by Mr. Branch, if there had been a proper warning, Mr. Branch would have learned of it and acted accordingly.

In Spruill v. Boyle-Midway, Incorporated, 4 Cir. 308 F.2d 79, it was held that a manufacturer of an inherently dangerous product could not avoid liability for injury caused by use of its product where warning of the danger was insufficient, although the user admitted he had not read the label containing the warning. It was further held that sufficiency of the warning was a question of fact. In Wright v. Carter Products, Inc., 2 Cir., 244 F.2d 53, a remote vendee recovered damages from a manufacturer of cosmetics that caused dermatitis. It held there was a question of fact whether the manufacturer should have foreseen the possibility of injury to some potential users and warned them. It was stated that liability for failure to discharge a duty to warn the persons of danger from the use of a product by inserting appropriate words of caution was rightly borne as a cost of producing and selling a commodity for use by the public, whose knowledge of the potential danger may be greatly inferior to that of the manufacturer. In E. I. Du Pont de Nemours & Company v. Baridon, 8 Cir., 73 F.2d 26, it was held that the fact that a plant disinfectant was sold as a patented product through dealers to growers did not relieve the manufacturer from responsibility for negligence with respect to directions given by the manufacturer for use of the product.

We think the court properly concluded that the statement on the label that if an allergic reaction set in use of the medicine should be discontinued was an inadequate warning. The facts of this case show that when a severe reaction was had that mere discontinuance of use of the Combiotic was of no avail. Appellant did not advise doing the only thing that could have helped. It gave no antidote. The evidence justified the conclusion that when there was a severe reaction unless a known antidote was promptly administered the cattle would probably die; that these facts were known to appellant; that necessity for the antidote was not known to Branch, nor would it have been known to the ordinary purchaser and user of the medicine. The cause of action arose in part in Stonewall County when the medicine was sold by the dealer in Stonewall County without - adequate warning.

The judgment is affirmed.


author: FANNING, Justice.

text:
    H. Farley VINCENT, Appellant, v. John BRONIS, Appellee.
    No. 7479.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1963.
    Rehearing Denied March 26, 1963.
    Merritt H. Gibson, Longview, for appellant.
    Franklin Jones: Jones, Brian & Jones, Marshall, for appellee.
   FANNING, Justice.

H. Farley Vincent sought to probate the purported Will of W. Bronis, deceased, in the county court of Harrison County, Texas. John Bronis, contending that he was the son of W. Bronis under the doctrine of adoption by estoppel, filed a contest to the probate of the will offered. The county court dismissed the contest on the ground that John Bronis failed to establish adoption by estoppel and therefore failed to establish an interest in the estate of W. Bro-nis, deceased. John Bronis appealed from the order of the County Court to the District Court of Harrison County, Texas.

The cause was tried in the District Court with the aid of a jury. The record shows that no statutory adoption proceedings were had, and John Bronis relied upon the doctrine of adoption by estoppel. The issues submitted and the jury’s answers thereto were as follows:

“SPECIAL ISSUE NO. 1:
“Do you find from a preponderance of the evidence that W. Bronis verbally agreed to adopt John Bronis on or before his marriage to Tessie Bronis?
“Answer ‘Yes’ or ‘no’.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 2:
“Do you find from a preponderance of the evidence that as a result of such agreement, if any, as inquired about in the preceding issue that Tessie Bronis married W. Bronis?
"Answer ‘Yes’ or ‘no’.
“ANSWER: Yes.
“If you have answered Special Issue No. 1 ‘Yes’, and only in that event, answer the following issue; otherwise do not answer same.
“SPECIAL ISSUE NO. 3:
“Do you find from a preponderance of the evidence that after the agreement, if any, inquired about in Issue No. 1, that John Bronis lived in the relationship of son to W. Bronis by conferring upon W. Bronis the benefits of parenthood?
“Answer ‘Yes’ or ‘no’.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 4:
“Do you find from a preponderance of the evidence that Tessie Campbell would not have married Willie Bronis in the absence of an agreement with Willie Bronis that he would adopt John Campbell ?
“Answer: ‘She would not have married’ or, ‘she would have married’.
“ANSWER: She would not have married.
“SPECIAL ISSUE NO. 5.
“Do you find from a preponderance of the evidence that Willie Bronis led John Campbell to believe that he had been legally adopted as the heir of the said Willie Bronis, and thereby acquired the services and the affection of the said John Campbell?!
“Answer ‘Yes’ or ‘no’.
“ANSWER: yes.”

The trial court rendered judgment setting aside the order of the county court dismissing the contest of John Bronis to the purported last Will of W. Bronis and further decreed to the effect among other things that John Bronis was the adopted son of W. Bronis, deceased, under the doctrine of estoppel, and was the sole surviving heir of W. Bronis, deceased, and that the privies of W. Bronis, deceased, were estop-ped to deny such adoptive status of John Bronis, and that John Bronis was entitled to be heard upon any contest of any purported Will of W. Bronis, deceased, offered for probate. Appellant has appealed.

Appellant’s points on appeal present “no evidence” questions.

Tessie Campbell was between 17 and 18 years of age on April 19, 1933, when her son, John Campbell was born. She first met Mr. W. Bronis in Longview, Texas, in 1935. She married Mr. Bronis in 1937 when Mr. Bronis was about 62 years old and when she was about 22 years of age, and when her fatherless son was between 4 and 5 years of age. This marriage continued until March, 1961, when it was dissolved by divorce. Mr. W. Bronis died in September, 1961, when he was about 85 or 86 years old. Mrs. Tessie Bronis married Mr. Karst in January, 1962.

There is evidence of probative force in the record that Mr. W. Bronis prior to marrying Tessie Campbell agreed to adopt John Campbell as his son. In this connection we quote from the testimony of Mrs. Tessie Campbell Bronis Karst (mother of John Bronis) in part as follows:

“Q. When did you and Mr. Bronis begin to court or talk about marriage ?
“A. Well, I had been acquainted with Mr. Bronis for possibly two years, I think, or more, but we really didn’t court until I went to the hospital. During the time I was in the hospital Mr. Bronis came to the hospital to visit me and brought me flowers, and I was in the hospital quite a while and he came every night while I was in the hospital. And shortly before I was released from the hospital he asked me if I would consider marrying him.
“Q. And, what was your reaction?
“A. Well, I didn’t answer at that time, I didn’t give him a definite answer until I had got out of the hospital and went to live at Mrs. Porter’s; and he was trying to persuade me to marry him, and I finally told him yes probably — oh, I had been out of the hospital five or six days when I told him yes.
“Q. Before you told him yes, did you make any agreement or discussion with him about the status that John would have in the event you married ?
“A. Yes, sir, he told me that if I would marry him that he would adopt my son.
“Q. Now, how old was John at that time?
“A. He was — I believe would have been five the following April, we married in November.
“Q. So he would have been four in November of ’37, going on five?
“A. Yes, sir.
“Q. Now, did Mr. Bronis make the statement not only to you but to-you in the presence'of other people that in the event you married him he would adopt John?
“A. Yes, sir, he did. My bed was placed in the living room of Mrs. Porter’s home, she had other members of her family there, and they set up a bed in their living room to put me in when I came home from the hospital. And Mr. and Mrs. Porter were there all the time, and one of their daughters, Mrs. Amy Carlisle, was there every day to see me and also to see her parents, and to buy groceries or whatever they have to have from town.”

The above quoted testimony of Mrs. Karst was corroborated in material respects by the testimony of Mr. and Mrs. Porter and Mrs. Carlisle. Also on cross examination Mrs. Karst testified in part as follows:

“Q. You didn’t marry him so John would inherit Mr. Bronis’ property?
“A. I figured that if his father had anything that John would inherit it, yes, but at the time we married Mr. Bronis had no property. He had a refrigerator, a coupe automobile and about four or five hundred dollars worth of second hand pipe fittings, and a place of business that cost us $16.00 a month.
“Q. So, you were willing to marry Mr. Bronis even without any prospect of inheriting the property, weren’t you?
“A. Mr. Bronis still wouldn’t have had any property if we hadn’t married.
“Q. I said you were willing to marry Mr. Bronis—
“A. If I hadn’t been willing to marry Mr. Bronis I wouldn’t have married him.
“Q. And without the prospect of John inheriting any property?
“A. Mr. Bronis had already tole me then and still said that the place would make John and I a living if anything happened to him. Mr. Bronis had also been sick when he and I married, he told me that he had had a heart attack. I never consulted the doctor about it but Mr. Bronis told me that he had had a heart attack, and that he didn’t have very much, but that if anything happened to him that he thought that little place of business would provide for John and I. So that’s * *

There is also evidence of probative force to show that from the time that John Bronis went into the home of W. Bronis until the time that W. Bronis died that John gave him all the benefits of parenthood. He went to school and college under the name of John Bronis. W. Bronis signed school report cards by John Bronis, and school census reports. Mr. Bronis also signed income' tax returns wherein he listed John Bronis as a son and as an exemption. There is evidence of probative force in the record to show that W. Bronis referred to John Bronis as his son and loved him and treated him as a son. John Bronis married and became the father of children that Mr. W. Bronis referred to as his grandchildren.

After carefully considering the record in this cause we hold that there was evidence of probative force to support the findings of the jury and the judgment rendered by the trial court. Jones et al. v. Guy et al., 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    Donald INGRAM, Trustee for Ingram Trust, et al., Appellants, v. COUNTY OF NUECES, Texas, Appellee.
    No. 14065.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1963.
    Rehearing Denied March 27, 1963.

      Theis & McGloin, Corpus Christi, for appellants.
    Franklin L. Smith, C. Edwin Prichard, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

This is a condemnation action, originally brought by County of Nueces and the United States Department of Agriculture, Soil Conservation Service, the latter having been dismissed from the suit before the trial began, for tire purpose of securing an easement for drainage purposes across lands to which the fee simple title is held by Donald Ingram and Ingeborg Ingram, Trustees. Mrs. Evelyn Walker is in possession of said land under an agricultural lease.

The trial was to a jury and, based upon the jury’s answers to the issues submitted, judgment was rendered that condemnor recover the easement prayed for, but, in effect, that condemnees recover no compensation, from which judgment the con-demnees have prosecuted this appeal.

The case was submitted to the jury on four special issues. By the jury’s answer to special issue No. 1, it found that the reasonable market value of the strip of land covered by the entire easement involved herein, immediately prior to the taking of said easement on August 25, 1961, was $8,849.00. In answer to special issue No. 2, the jury found the reasonable market value of this strip immediately after the taking of the easement was $8,849.00. By its answers to special issues Nos. 3 and 4, the jury found, in effect, that the market value of the tract of land, exclusive of the strip covered by the easement, would be enhanced in the sum of $25,000.00 by the contemplated drainage installations to be placed on the easement taken.

There was no objection to the charge, and no questions are here raised as to the manner of the submission of the cause to the jury.

The submission of the cause was in keeping with the rule prescribed where only an easement is to be taken and the landowner is left with some beneficial use of the land. Tennessee Gas Transmission Co. v. Wood, Tex.Civ.App., 331 S.W.2d 808; Texas Power & Light Co. v. Hering, Tex. Civ.App., 178 S.W.2d 162; 22 Tex.Jur.2d, Eminent Domain, § 158. The rule stated generally, is to the effect that where an easement is taken and the owner of the land is left with some beneficial interest, the measure of damages is the reasonable market value of the strip of land immediately before the condemnation and the reasonable market value thereof, as burdened with the easement, immediately after the condemnation.

Appellants have filed no statement of facts herein, and there are no findings of fact made or filed by the trial court. We are asked to find, as a matter of law, that appellants were entitled to damages, notwithstanding the fact that the jury found they suffered no damages.

It is true that Vernon’s Ann.Tex.Const. Art. 1, § 17, provides as follows:

“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.”

But this does not mean that under this incomplete record we can set the verdict of the jury aside and say that appellants have not had a fair trial and must be given some damages.

Appellants rely heavily upon the case of Long v. City of Austin, Tex.Civ.App., 265 S.W.2d 632. In that case the 'Court had the benefit of a statement of facts and, after much discussion of the evidence, held that the landowner was entitled to some damages and remanded the cause. In the present case, we have no way of knowing the evidence upon which the jury based its verdict.

Appellants have failed to show any reversible error committed by the trial court, and accordingly the judgment is affirmed.


author: CLAYTON, Justice.

text:
    Martha SELMIKEIT, a feme sole, Appellant, v. EL PASO CITY LINES, Appellee.
    No. 5566.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1963.
    Rehearing Denied March 27, 1963.

      Harold Duncan, Jr., El Paso, for appellant.
    Kemp, Smith, Brown, Goggin & White and William Duncan, El Paso, for appellee.
   CLAYTON, Justice.

This is a suit for damages arising out of personal injuries sustained by plaintiff, Martha Selmikeit (appellant), a feme sole, when she fell in a passenger bus being operated by an employee of defendant, El Paso City Lines (appellee). Plaintiff alleges in her petition that defendant’s bus operator “caused said bus to have an unnecessary jerk” as plaintiff was attempting to get off of the bus at a stop in the City of El Paso, resulting in plaintiff being thrown to the floor of the bus and thus injured. Plaintiff is a woman who, at the time of the trial in 1961, was 70 years of age, and who is shown by pictures of her, introduced as exhibits, to be quite heavy. She came to the United States from West Germany to live with her daughter and had lived in the United States about fourteen months at the time of the accident. She had ridden a City Lines bus at least once a week during the period of her residence here.

In a trial to a jury on special issues, the jury absolved the defendant of any negligence when it found that the driver of defendant’s bus did not cause said bus to have a sudden and unnecessary jerk as it approached the bus stop where plaintiff was to alight. Based on this finding the court entered a “take-nothing” judgment, from which judgment plaintiff appeals.

In the first point upon which appeal is predicated, plaintiff urges misconduct of the jury and error on the part of the court in not granting plaintiff’s motion for a new trial based thereon. The claimed misconduct centered around a remark, allegedly made by one of the jurors during deliberations, that regardless of the jury’s answers to the special issues submitted, plaintiff would receive compensation anyway, such remark having caused a juror, or jurors, to change the answer to Special Issue No. 1. This issue, .answered in the negative by the jury, inquired whether the driver of defendant’s bus caused it to have a sudden and unnecessary jerk as it approached the bus stop where plaintiff was to alight,, with the related, conditional issues of negligence and proximate cause which were, of course, unanswered. At the hearing on the motion for new trial five jurors testified. The recollection of these jurors as^ reflected in their testimony is vague, and in many respects such testimony is conflicting as to just what remark was made and as to just what point in the jury’s deliberations any such remark may have been made. However, one juror admitted having made some statement to the effect that “if a child fell on my fence I was responsible”, but could not remember at what point in the jury’s deliberations it was made, although he believed “it was before the last answer”. He denied saying anything about insurance with regard to the child falling. Another juror testified that she had been the only juror holding out for a “yes” answer to Special Issue No. 1, when someone said something to the effect that it wouldn’t make any difference how that issue was answered, the plaintiff would get compensation anyway; and she testified further: “They finally convinced me that that was the way it was”. The juror was then asked:

“Q Now, let me ask you about whether there was some discussion as to whether there was any evidence that the driver had caused the bus to jerk unnecessarily; was there any discussion about what evidence there was on the driver?

to which question the juror answered:

“A Well, there was some discussion about what was brought up here, but I didn’t think there was any evidence, that was my opinion.” (Emphasis supplied.)

If any meaning may be given to this juror’s answer to the question asked. here, it must be that the juror was of the opinion that there was no evidence that the bus driver had caused the bus to jerk unnecessarily and therefore her answer to Special Issue No. 1 could properly be in the negative only — her ultimate answer to the issue. We have carefully examined all the testimony relative to the bus driver’s handling of the bus and have come to the conclusion that there is no testimony showing, or even tending to show, that the bus driver cawed the bus to “have a sudden and unnecessary jerk.” We therefore feel that we are not warranted in concluding that a different verdict would have been reached if the complained-of remark had not been made. Smith v. Travelers Ins. Co., 205 S.W.2d 432 (Tex.Civ.App., 1947, err. ref., N.R.E.).

The question thus presented to us is this : From the above circumstances, was there any showing that there had occurred in this case such jury misconduct as would have warranted the granting of the motion for a new trial and, because of the overruling of such motion, now requires a reversal of this case? We think not.

In support of her first point of error, appellant cites Biers v. Fort Worth Lloyds, 219 S.W.2d 493 (Tex.Civ.App., 1949, err. ref., N.R.E.). In that case the appellant contended that the jury’s answer to one of the special issues was the result of misconduct during their consideration of the cause “in that at least some of them had been induced to give such negative answer to that issue as a result of relying upon other jurors’ statements during their deliberations; that an answer of ‘No’ to that inquiry would not affect appellant’s recovery —that he would get some compensation anyway.” In reviewing the testimony on motion for new trial, the appellate court found that:

“[I]t was clearly shown that there was some discussion before the jury had so agreed upon an answer of ‘No’ to Issue No. 1, wherein different members stated to the others that they could answer Special Issue No. 1 ‘No’, and that, in view of the other questions propounded to them, the court would still give the plaintiff judgment.
“In other words, while there was an extended dispute about the matter and as to what the ultimate effect of the testimony was, as already indicated, it is the finding and conclusion of this Court that, before the jury answered such issue, some members thereof did tell others that appellant would recover, even though they answered ‘No’ to that inquiry, and that, subsequently, the vote was unanimous in favor of such a ‘No’ answer thereto.
“That such action constitutes jury-misconduct to such an extent as to require a reversal of their findings seems to be well-settled by these, among many other holdings, of our Texas Courts: * * (Citing cases.)

It occurs to us that the circumstances of the Biers case serve to distinguish it from the case at bar. The “extended dispute” that is spoken of in the cited case apparently did not occur here. It is not clear how many or to what extent the jurors were affected by the remarks of “some members” of the jury in the Biers case. In the instant case there appears to have been only one juror who made the improper remark, and only one juror who could have been affected by it, i. e., the only one who indicated an inclination toward a “yes” answer that the driver had caused the bus to jerk unnecessarily, but who further stated that in her opinion there was no “evidence” to support such a finding. In the Biers case the “extended dispute” occurred before the jury had made answer to the issue in question, while in the present case there is uncertainty as to just when the improper remark may have been made.

It is believed that certain or all of these distinguishing factors may be applied to the numerous other cases cited as authority in the Biers case.

We do not conceive the law to be that the mere utterance of an improper remark or even an improper discussion before a jury while deliberating will constitute misconduct requiring a new trial. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (S.Ct.1945). The materiality of the remark made, and its probable effect upon the verdict, must be taken into consideration upon motion for new trial. Rule 327, Texas Rules of Civil Procedure, reads in part:

“Where the ground of the motion is misconduct of the jury * * * the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved * * * be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

Speaking of this rule the Supreme Court, in Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, has this to say:

“Under the decisions of this court defining reversible error, as applied to jury misconduct in trials had before the effective date of our new Texas Rules of Civil Procedure, it was held that if the members of the reviewing court had a reasonable doubt as to whether or not jury misconduct, once established, had resulted in injury to the complaining party, reversal must follow. Such, however, is not the rule as applied to cases tried subsequent to the effective date of our present rules.” (Emphasis supplied.)

After setting out Rule 327, the Court continues :

“A reading of the above rule will disclose that its effect is to abolish the prior rule of reasonable doubt, and substitute therefor a rule which imposes upon the party asserting misconduct the burden not only of proving by a preponderance of the evidence that such misconduct occurred, but also of showing that such misconduct probably resulted in injury to him. If the evidence is conflicting on the question as to whether or not the misconduct actually occurred, the decision of the trial court either way on that question should be accepted as final. When misconduct is established, the question of injury is one of law for the reviewing court. Under the above-quoted rule both the trial and the reviewing courts have the right to view the matter in the light of the entire record. By the entire record we mean the evidence heard on the motion presenting misconduct, the evidence on the main trial, and any and all other parts of the record which may throw light on the question of injury. Of course, it is never permissible to allow a juror to preserve or destroy his verdict by testifying to the mental processes by which he reached the same, and this rule is not altered in the least by Rule 327, supra. Sproles Motor Freight Lines, Inc., v. Long, Tex.Sup. [140 Tex. 494], 168 S.W.2d 642.”

Again, it is said in State of Texas v. Wair, 351 S.W.2d 878 (S.Ct., 1961) that the test to be applied by the appellate court to the finding of the trial court as to whether misconduct did or did not occur is not on the basis of the great weight and preponderance of the evidence, but on the basis of possible abuse of discretion by the trial court, in the absence of which its finding will not be reversed. And further: “Probable injury of a jury’s misconduct, once misconduct has been found to have occurred, is a question of law for the trial court and reviewing courts to determine from a review of the entire record *

After a careful review of the entire record in the instant case, we are constrained to hold that there is nothing here to justify the granting of a motion for new trial upon the grounds of misconduct of the jury. We find that, (1) the alleged misconduct was not satisfactorily proved; (2) that even if what transpired in the jury room during deliberations could be construed as misconduct, it was not material; and (3) that it did not reasonably appear that probable injury resulted to the complaining party arising out of any such misconduct complained of, if, in fact, it could be construed from the record that any misconduct actually occurred. We find no abuse of discretion on the part of the trial court in refusing to grant a new trial, and appellant’s first point is accordingly overruled.

We now turn our attention to appellant’s sole remaining point, Point 2, urging that the trial court erred in refusing plaintiff’s (appellant’s) requested special issue as to whether the bus of appellee gave a sudden and unnecessary jerk. As has been indicated, Special Issue No. 1 was worded as follows:

“Do you find from a preponderance of the evidence, that on March 10, 1961, the driver of defendant’s bus, as it approached the bus stop at the intersection of Dyer Street and McKinley Street, caused said bus to have a sudden'. and unnecessary jerk?” (Emphasis supplied.)
To which the jury answered “No”.

Plaintiff claimed that the special issue should have inquired whether the bus came to an abrupt stop and whether this abrupt stop was done with an unnecessary jerk which was negligence on the part of the defendant and a proximate cause of the injuries suffered by the plaintiff. Plaintiff submitted requested special issues in the language indicated but we find that there is no such language set out anywhere in plaintiff’s pleadings. To quote from these pleadings, plaintiff alleged:

“ * * * Defendant’s operator caused said bus to have a sudden and unnecessary jerk as Plaintiff was attempting to get off of the bus near the bus stop at Dyer and McKinley Street * * * that as a result of the sudden and unnecessary jerk, Plaintiff was thrown to the floor of the bus and seriously injured * * * that Defendant’s agent was negligent in causing said bus to give a sudden and unnecessary jerk and that said negligence was a direct and proximate result (sic) of Plaintiff’s damages and injuries.” (Emphasis added.)

We find that the special issue as given by the court is in the exact language of the allegations of plaintiff’s petition, and we therefore overrule appellant’s second point.

Binding no error in this record, the judgment of the trial court is in all things affirmed.


author: BELL, Chief Justice.

text:
    Mrs. Georgia L. Jones HAMMETT, Jr., et vir, Appellants, v. Mrs. Agnes McINTIRE et vir, Appellees.
    No. 13977.
    Court of Civil Appeals of Texas. Houston.
    Nov. 29, 1962.
    Rehearing Denied March 28, 1963.

      Herbert Finkelstein, Houston, for appellants.
    Bernard Kay and Robert L. Jones, Houston, for appellees.
   BELL, Chief Justice.

Appellees sued appellants to establish and foreclose a judgment lien against the East 60 feet of Lot Two in Block H of Houston Acreage Estates, an Addition in the City of Houston. On trial to a jury, the jury answered issues favorably to appellants, but the trial court, on appellees’ motion, rendered judgment non obstante veredicto in favor of appellees establishing and foreclosing the judgment lien.

The pleadings of appellees and the evidence show that appellees obtained a judgment against a man named Frank Munger in the amount of $6,997.66 and interest from the date of judgment, which was November 23, 1951. On June 2, 1952 an abstract of the judgment was duly filed in the Judgment Records of Harris County. On such dates the legal title to the above property as shown by the Deed Records of Harris County was in Frank Munger.

On the basis of the above, appellees assert their judgment lien, they alleging, and it being shown, that they had no notice of a prior deed from Munger to the appellant, Georgia L. Jones Hammett, which was dated November 15, 1949. It was not filed for record, however, until February 15, 1958.

The appellants in their answer, after asserting a general denial, alleged facts, which if true, showed Mr. Munger merely held legal title for a man named Sanford Thomas and that Thomas was the beneficiary under a resulting trust. It is appellants’ contention that the jury found facts on sufficient evidence that establish a resulting trust in Thomas and since Munger held purely naked legal title to the property he had no interest to which appellees’ lien could attach. They allege a transfer in writing from Thomas of his interest. Alternatively, they say that Mrs. Hammett obtained title under the deed from Munger and though the deed was not recorded until subsequent to the recording of appellees’ abstract of judgment, appellees were charged with notice of Mrs. Hammett’s deed because her father, Mr. Jones, was at all times in possession of the property.

The evidence shows that in 1949 Mr. Jones, father of Mrs. Hammett, was in debt and wished to sell the above property. Sanford Thomas, who worked for Mr. Munger, wanted to buy the property. He was unable to obtain a loan because of the amount of his salary. Thomas asked Mr. Munger to purchase the property for him but in Mun-ger’s name and Mr. Munger did so. Mr. Jones conveyed the property to Mr. Munger. Mr. Munger had arranged for a $6,000.00 loan with Campbell Mortgage Company. The deed from Jones to Munger reserved a vendor’s lien to secure the payment of the note. The money obtained from the loan was paid to Mr. Jones. The date of the deed from Jones to Munger was October 19, 1949. In addition, Thomas, on November 14, 1949, executed a note to Jones for $2,950.00. There was evidence that Thomas prior to the deed from Jones to Munger agreed with Munger to pay the indebtedness to Campbell Mortgage Company though Munger was the only maker of the note. In 'October, after the deed to Munger, Thomas went into possession of the property and remained in possession for a month or so. He had paid one installment of the note to Campbell Mortgage Company and had paid Mr. Jones $50.00. Sometime in November, just when is not clear, Mr. Thomas became dissatisfied or decided he could not handle the purchase, and moved off the property. He delivered possession to-Mr. Jones and told Mr. Jones to get a deed from Mr. Munger. Mr. Jones then had Mr. Munger convey the property to Jones’' daughter, Mrs. Hammett. The deed was dated November 15, 1949. Jones says he had the deed made to his daughter because-he owed her $650.00. Thereafter Jones, paid the balance owing Campbell Mortgage Company as it fell due.

The jury found as follows:

1. The purchase price was paid Jones; by Munger with the funds borrowed from the Mortgage Company.

2. That Jones did not convey the property to Munger as a gift.

3. That prior to the execution of the-deed from Jones to Munger, Thomas obligated himself to pay the full amount of the purchase price.

4. That Munger took title solely for the use and benefit of Thomas.

5. That Jones orally agreed with Mrs.. Hammett to pay the mortgage company..

6. That Jones paid the mortgage company $5,950.00.

There were other findings not material to be noticed at this point.

The trial court disregarded the above answers of the jury on the ground'. there was no evidence to support them. We are of the view there was evidence to support these answers and that the effect of these answers was to show bare legal title in Munger and equitable title in Sanford Thomas.

If prior to or contemporaneously with the execution of a deed conveying property to one person, another person pays the purchase price or becomes legally obligated to do so, and it is agreed that the person to whom the property is conveyed shall hold the title for the use and benefit of the person paying or becoming legally obligated to pay the purchase price, the bare legal title is in the grantee in the deed .and equitable title is in the person paying or Agreeing to pay the purchase price. The payment of the purchase price or the obligation to pay it must arise prior to or contemporaneously with the execution of the deed. Vicars v. Quinn, 154 S.W.2d 947, C.C.A., no writ hist.; Patrick v. McGaha, 164 S.W.2d 236, C.C.A, no writ hist.; Wright v. Wright, 134 Tex. 82, 132 S.W.2d 847.

It is appellees’ position, apparently .adopted by the trial court, that the evidence showed nothing more than an agreement •that Munger would purchase the property and then convey it to Thomas if and when Thomas paid the notes to Campbell Mortgage Company. If this were true, it would, in law, amount to nothing more than a ■purchase of the property by Munger with an agreement by him to sell to Thomas. In such a situation there would be no resulting trust. While such a contention finds some support in the evidence, such' was not established as a matter of law. Such a conclusion could have been reasonably reached from the evidentiary facts. However, the ■conclusion the jury reached in its answers ■was that the conveyance to Munger was solely for the use and benefit of Thomas who had, prior to the execution of the deed from Jones to Munger, become legally obligated to Munger to pay the purchase price. .'Such a conclusion finds support in the evidence. Before a court may disregard a jury’s answer to an issue there must be an absence of any evidence to support the issue. Here different reasonable inferences could be drawn from the evidentiary facts. It is true, as urged by appellants, that Thomas did not actually pay any part of the purchase price until after the deed was executed. This is not necessary if Thomas, before or at the time of the deed, became legally obligated to pay it and the grantee agrees to take title for Thomas. There is evidence to support the conclusion that this is what occurred. This case is precisely the same as Vicars v. Quinn, supra.

It follows that the court erred in disregarding the jury’s answers to the above issues. It also follows from the facts found by the jury that Munger at all times held bare legal title and the beneficial estate was in Sanford Thomas.

Appellees’ judgment is against Munger. When the abstract of the judgment was filed it fixed a lien only on such interest as Munger had. However, he had bare legal title. The beneficial interest was in Thomas. Appellees’ lien would not attach to Thomas’ interest. Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098; Roeser and Pendleton v. Stanolind Oil & Gas Co., 138 S.W.2d 250, C.C.A., writ ref.; Estelle v. Hart, 55 S.W.2d 510, Tex.Com.App.; Broussard Trust v. Perryman, 134 S.W.2d 308, C.C.A., writ ref.

Therefore, appellees have failed to establish the lien against the property, the beneficial interest being in Thomas who delivered possession to appellants.

The above holding makes it unnecessary to discuss whether the possession by Jones gave notice to appellees of the unrecorded deed to appellants from Munger. Suffice it to say we think it did not. Eylar v. Eylar, 60 Tex. 315.

Appellees urge, however, that we may not consider the statement of facts filed because it was not filed within 60 days after the date of judgment and no good cause is shown for failure to so file. The judgment in the case is dated December 28, 1961. A cash deposit in lieu of bond was made January 9, 1962, and a request for a statement of facts was also made at the time. The transcript was filed in this Court February 26, 1962. Late in the afternoon of February 22 appellants’ counsel was notified the statement of facts had been prepared by the reporter. Appellants’ counsel obtained it February 23, and on the same day delivered it to appellees’ counsel for examination and approval. Appellees’ counsel stated he did not then have time to examine and approve the statement and appellants’ counsel asked appellees’ counsel to examine, approve and return it as promptly as possible. It was not returned to appellants’ counsel until March 7 or 8, at which time appellants’ counsel agreed to certain corrections suggested by appellees’ counsel. All of these facts are made to appear by affidavit filed in this Court on March 12, 1962, in connection with an amended motion for an extension of time within which to file the statement of facts. A motion to extend time to file was filed February 26, but it was not sworn to. The amended motion was filed within 75 days after the date of the judgment. Appel-lees filed a contest to the motion to extend time for filing. They do not deny any of the facts above set out. They merely assert the facts do not show good cause because an extension under Rule 386, Texas Rules of Civil Procedure, is not necessary for examination and correction of the statement of facts, but a correction of the statement of facts after it has been filed is provided for in Rule 428, T.R.C.P.

We think good cause is shown. A statement of facts before it can be filed must be approved by the attorneys or the court. It cannot be determined to be correct by the attorneys or the court until examined. Appellees’ counsel did not approve it until he had examined it and had some corrections made. It was in his possession for examination and approval and was filed here the day it was approved by him. When it was delivered to him he had stated he did not then have time to examine it. He was asked to examine and approve it as promptly as possible.

Rule 428, T.R.C.P., is applicable only after a statement of facts which has been approved and signed by the court or counsel has been filed with' the Court of Civil Appeals. Under it further corrections of a properly filed statement of facts may be made.

The judgment of the trial court is reversed and judgment on the jury verdict is here rendered that appellees take nothing by their suit against appellants.


author: PALMORE, Judge.

text:
    Cecil R. LEE, II, Administrator of the Estate of Ruby T. Lee, Deceased, Appellant, v. Joe H. TUCKER, Administrator etc., of the Estate of H. M. Tucker, Deceased, Appellee.
    Court of Appeals of Kentucky.
    March 15, 1963.

      Earle T. Shoup, Paducah, for appellant.
    Wheeler & Marshall, Paducah, for appel-lee.
   PALMORE, Judge.

H. M. Tucker and his daughter, Ruby T. Lee, were killed when the automobile in which they were traveling crossed into the left half of a 2-lane highway (U.S. 60) and collided with a truck headed in the opposite direction. This litigation, commenced by Mrs. Lee’s administrator against Mr. Tucker’s administrator c. t. a., consists of claim and counterclaim for wrongful death, but the counterclaim is not involved in the appeal.

No one knows which of the two decedents was driving the car at the time of the accident. Each had been observed at the wheel at different times earlier in the day. However, Mr. Tucker was the owner and was the last one seen in the driver’s seat. The evidence was not as detailed as it might have been with respect to times and distances, but it is clear that the fatal trip began at Barlow, in Ballard County, shortly after noon, and that Paducah was the intended destination. Apparently the collision occurred around 1:00 P.M. at a point 4 miles west of Paducah, or about 20 miles from Barlow. Witnesses for the plaintiff, Mrs. Lee’s estate, testified that they saw the car as it passed two points on the eastward outskirts of Barlow going toward Paducah and that Mr. Tucker was then driving and Mrs. Lee was a passenger on the right-hand front seat. A short while earlier Mrs. Lee had been observed in the driver’s seat while the car was parked in Barlow. Mr. Tucker had a heart condition, and there was evidence that Mrs. Lee often, and perhaps usually, did the driving when they were together. The relative positions of the bodies on the highway immediately following the accident also provided some basis for deducing that both were thrown from the right front door of the car and that Mr. Tucker was the first one out.

In addition to instructions outlining the law of the case the court directed the jury “to return in this case a special verdict by answering the interrogatories attached hereto. If your answer to Interrogatory 1 is ‘No’, then you will not answer any of the other interrogatories.” Interrogatory 1 was: “Are you able to find from the evidence who was driving the passenger car in which the decedents were riding at the time of the accident?” The jury returned a verdict, signed by one of its members, answering “no” to this question, whereupon judgment was entered dismissing both claims. Mrs. Lee’s administrator appeals.

It is not disputed that Mr. Tucker’s ownership of the car and the evidence of his having been the last person seen driving it raised at least a “permissible inference” that he was the operator at the time of the accident. Otherwise, of course, the defendant would have been entitled to a directed verdict on the plaintiff’s claim. The problem to be determined here is whether and to what extent this evidence had further procedural effect as a rebuttable presumption. Specifically, did it shift to the defendant the burden of proof on the issue of identity, so that if we should find the rebuttal evidence insubstantial, that issue should have been resolved as a matter of law? And if the rebuttal evidence was sufficient to warrant submission of the question to the jury, did the defendant’s failure to convince the jury that someone other than Mr. Tucker was the driver entitle the plaintiff to a favorable determination in that respect as a matter of law? These two propositions were submitted successively (but, in each instance, unsuccessfully) by plaintiff’s motion for a peremptory and his tendered instructions.

The terms “inference” and “presumption” are merely descriptive of the weight given to circumstantial evidence as a matter of law in particular instances. The legal effect given to any evidence should and usually does depend on the degree of probability reflected by it. If it is accorded the dignity of a presumption it should not be because a wooden rule puts it in that category, but only because it is that persuasive. Whether res ipsa loquitur amounts to a re-buttable presumption or merely a permissible inference is a classic example of the problem. But whichever it may be, if when all the evidence on both sides has been heard reasonable men may differ on the conclusion to be drawn, the question should be for the jury; otherwise, the clear conclusion is a matter of law, one way or the other. Circumstantial evidence has no magic quality. It is measured by the same standards of probity and credibility as direct evidence. Cf. Prosser on Torts, § 43, pp. 211-217.

Applying the foregoing conceptions to this case, let us assume (though it is unnecessary to decide) that in the absence of any other evidence bearing upon the identity of the driver, the proof that Mr. Tucker was the owner of the car and was seen driving it toward the place where shortly thereafter the accident occurred would have had sufficient probative force to conclude the issue as a matter of law. If this was the state of the evidence when the plaintiff rested, he had raised at that stage a rebuttable presumption. But this does not mean the burden of proof was shifted to the defense. A defendant always runs the risk of a directed verdict against him if he fails to come forward with defensive proof; it depends simply on how strong a showing has been made by the plaintiff’s evidence, standing unexplained — would it be clearly unreasonable for the jury not to be convinced by it ? If so, what is to all intents and purposes a “rebuttable presumption” has been created. But if the defendant goes forward with the evidence, and injects enough doubt into the case that it may no longer be said that there is but one conclusion to be drawn by reasonable men, then what was provisionally a matter of law becomes an issue of fact for the jury, in that he has rendered unclear that which appeared clear and uncertain before he introduced his evidence. It is for the jury to assess the effect of his “rebuttal” (unless, of course, it is so clear and conclusive as to entitle the defendant himself to a directed verdict).

We agree with Prosser that there is no sound logic in shifting the burden of proof on the basis of the evidence. The weight to be given to the evidence in a case is relevant only to the question of whether the burden has been sustained; it has no rational bearing on the question of who has it. The latter question is settled when the pleadings are completed. If the plaintiff’s evidence is not strong enough to entitle him to a directed verdict at the conclusion of the trial, and he has been unable to convince the jury, where is the justice of giving him a verdict nevertheless ? The only possible justification for so strong a presumption would be that the evidence raises an extraordinary degree of probability, and if the evidence were that persuasive he would be entitled to a directed verdict anyway.

Rodney v. Staman, 1952, 371 Pa. 1, 89 A.2d 313, 32 A.L.R.2d 976, and the annotation following at 32 A.L.R.2d 988 support the proposition that the ownership or operation of the automobile raises a rebuttable presumption as to its operation at the time of the accident, but they do not appear to give the presumption the effect of shifting the burden of proof. In Drahmann’s Administratrix v. Brink’s Administratrix, Ky. 1956, 290 S.W.2d 449, this court applied the presumption in a case involving an airplane crash but did not explore into the procedural effect of the presumption beyond the point of its raising a jury question and thus preventing a directed verdict against the plaintiff.

We hold that when the probative force of a plaintiff’s evidence is such that in the absence of further proof he is entitled to a directed verdict (a conclusion that must depend on the circumstances of the individual case, as distinguished from a categorization by type of case or type of evidentiary problem), he has established a rebuttable presumption. This places on the defendant the practical necessity (which, to avoid confusion, ought not to be referred to as a “burden”) of going forward with proof if he would avoid a peremptory, but it does not shift the burden of proof in the sense that he loses if the jury cannot decide the issue one way or the other. His rebutting evidence will reduce the presumption to the status of a permissible inference if it injects enough doubt that the jury may reasonably decide that the plaintiff has not proved his case.

It is our further opinion that the defensive evidence in this case created sufficient doubt as to the identity of the driver at the time of the accident that it would have been improper for the court to rule as a matter of law that Mr. Tucker was the driver. 'The motion for a directed verdict therefore was correctly overruled. Instructions P-6 and P-7 offered by the plaintiff were tantamount to a direction that unless the jury found that Mrs. Lee was the driver it should find that Mr. Tucker was. This, of course, would have placed the burden of proof on the defendant, and the instructions were properly rejected. It was the plaintiff’s burden to convince the jury that Mr. Tucker was the driver. Having failed to do so, he was not entitled to a verdict.

As the court explicitly directed the jury “to return in this case a special verdict by answering the interrogatories attached hereto,” we think it must be presumed that the answer “No” to Interrogatory 1 was a “verdict,” and not an indication that there was disagreement among the jurors as to the identity of the driver. If there was doubt in this respect it was waived by failure to raise the question before the jury was dismissed.

The judgment is affirmed.

      . The more recent expressions of this court disclose an inclination to regard res ipsa loquitur uniformly as a presumption, entitling plaintiff to a directed verdict in the absence of rebuttal proof. Cf. Vernon v. Gentry, Ky.1960, 334 S.W.2d 266, 268, 79 A.L.R.2d 1; Schechter v. Hahn, 1947, 305 Ky. 794, 205 S.W.2d 690, 693. What, however, of the middle ground where plaintiff’s evidence is enough to justify but not to compel a verdict? See, for example, Droppelman v. Willingham, 1943, 293 Ky. 614, 169 S.W.2d 811, 813, illustrating the permissible inference theory. Our latest reference to the subject, in Kentucky Home Life Insurance Company v. Wise (rehearing denied Feb. 22, 1963) Ky., 364 S.W.2d 338, suggests that as a practical matter, whether the term “res ipsa loquitur” means a permissible inference or a re-buttable presumption should depend on. the particular circumstances of the case. This is Prosser’s view.