author: McDowell, judge.

text:
    Elizabeth SALZWEDEL, a Minor, by Harry Salzwedel, Her Natural Father and Next Friend, et al., Plaintiffs-Respondents, v. William Norman VASSIL, Defendant-Appellant.
    No. 8027.
    Springfield Court of Appeals. Missouri.
    Nov. 20, 1961.

      Wayne Waldo, Waynesville, John J. Alder, of Alder & Morrison, Kansas City, for appellant.
    Cohn & Lentz, Waynesville, for respondents.
   McDowell, judge.

This is an action for damages for personal injuries arising out of an automobile collision on October 1, 1958, in Pulaski County, Missouri. Plaintiffs obtained a verdict and judgment against defendant in the following amounts: Ellen Salzwedel, $9,500; Elizabeth Salzwedel, a minor (by next friend) $1,000; and Harry Salzwedel $882.00. From this judgment defendant appealed.

The petition was in three counts; Count I on behalf of Elizabeth Salzwedel, a minor, through her next friend; Count II on behalf of Ellen Salzwedel; and Count III on behalf of Harry R. Salzwedel.

On October 1, 1958, about 5:30 P.M., plaintiff, Ellen Salzwedel, was driving her 1955 Chevrolet automobile east on Highway 66, in the right-hand side of a four lane, blacktop divided highway in Pulaski County, when it was struck from the rear by a 1950 Ford car owned and driven by defendant, Sgt. William Norman Vassil. The collision occurred about one mile east of the Fort Leonard Wood turnoff and about 25 or 30 feet west from the entrance to Whispering Pines Trailer Court. The road at the place of collision was level. The weather was clear, the road dry, and there was a visibility of about 600 yards. The lights on plaintiff’s car were on. Plaintiff had been traveling at a speed of about 45 or 50 miles per hour until she reached a point about 200 yards from the entrance to the trailer court when she put on her blinker lights, reduced her speed and looked in the rear view mirror to see if there were any cars coming. She saw car lights a “good piece” back, three or four hundred yards. At the time of the collision plaintiff’s car was traveling 25 or 30 miles per hour. When she signaled to turn into the trailer court she just took her foot off the gas and gradually slowed down. Her car was still in motion when defendant’s car struck the rear end thereof. She gave this testimony:

“Q. Now, what happened to your automobile after it was struck? A. Well, it was shoved clear past the entrance.
“Q. And after you came to a stop, where was your car located in relation to Highway 66? A. Well, it was still on the highway, but it was past the trailer court where you turn off.”

As a result of the impact the trunk of plaintiff’s car was pushed in and bumpers bent out of shape. One witness said “ * * * the back lid of the trunk was all. bent and pushed clear up to the back window, and the whole back end was smashed in. * * * he jarred the car so bad that it broke the seats completely loose inside, * * * ”. After the collision plaintiff was able to get out of her car and she ascertained that it was Sgt. Norman Vassil who was driving the Ford car that hit her. At time of accident plaintiff’s five minor children were in the car with her. They remained at place of accident 30 or 40 minutes until plaintiff’s husband came and took them to their home in Waynesville.

Jim Hudson, Missouri State Highway Patrolman, stationed at Rolla, testified that he investigated the collision and made a report. He stated the collision occurred five-tenths of a mile east of the junction of U. S. Highway 66 and Route “Y”, near the driveway going into Whispering Pines Trailer Court; that the cars involved in the collision were a 1950 Ford Coach and a 1955 Chevrolet sedan; that William Norman Vassil was driving the Ford, his address Company B, 62nd E.B.C., Fort Leonard Wood, Missouri. He stated the Ford was off the pavement across the ditch, parallel with the driveway leading into the court; that the Chevrolet was about 50 feet beyond the driveway on the shoulder of the road (someone had moved the car off the road). Witness stated the road was dry; that he observed debris in the road at scene of collision, back from the driveway leading into Whispering Pines Court; that the debris was dirt and pieces of metal qn the drive in the right hand lane of the two-lane highway of eastbound traffic; that the Chevrolet was damaged in the rear end, bumper, trunk lid and side panel; the Ford had the front end damaged. Witness stated he had a conversation with defendant, Vas-sil, as to how the collision occurred. He gave this evidence:

“Q. What, if anything, did he say in regards to the collision ? A. Plis statement was that ‘it seemed to me like another car got in front of me and I couldn’t pass it.’
“Q. Now, did you have a chance, while you talked to Mr. Vassil, to observe his talking? A. Yes, sir.
“Q. What did you observe about his talk? A. Vassil appeared to have been drinking, and I asked him about that.”

He stated defendant’s speech was incoherent, his eyes were somewhat dilated, he was sweating and his breath smelled of alcohol; that defendant stated he had ■“been drinking several beers”.

Witness testified that it was about 500 feet from the top of the hill to the entrance way of Whispering Pines; that the road was downgrade from Fort Wood junction to a point beyond hill crest west. Pie said you could see west from the entrance to the court along Highway 66, about 500 feet.

Ellen Salzwedel testified that when her car was struck she was “slung forward against the steering wheel and then snapped back real hard, and my neck was jerked backwards and forwards”. She testified that after the collision she was dazed, felt scared and all shook up but that she managed to get out of the car. Plaintiff arrived back at her home in Waynesville about 7:00 o’clock. She stated when she got back home “Well, I was awfully nervous and my neck hurt an awfully lot, and the back of my neck and down my back”.She went to their family doctor, Dr. Nickels, an Osteopath at Waynesville on October 3, 1958. She said when she reached the doctor’s ' office she felt “awfully' dizzy”; that she hardly knew what she was doing all day; that the back of her neck hurt, and her shoulders and down into her arms hurt and her head ached. She said “It was just a sharp pain down my'back and dull pain over here in my shoulder (indicating)”. The doctor gave her a chiropractic treatment on her neck and pills to relieve her pain and for her nerves. She returned home after the treatment on October 3rd; that it was quite a while before she went back to the doctor for further treatment. She stated she was having trouble with her monthly periods; that she had never had this trouble before and she went back to Dr. Nickels. She gave this testimony:

“Q. Now, * * *. How did you feel during this time that you - left the doctor’s office on October 3rd and the time that you went back to see him again? A. Well, I had headaches pretty often, and my back would hurt if I’d do much work at all.”

Witness testified she was just an ordinary housewife; that her duties consisted of sweeping, scrubbing floors, ironing, cooking and taking care of her children; that prior to the accident she could do this work but after the accident she couldn’t work as long periods as before, had to stop and rest or lie down, got very nervous and some things she just could not do; that she has to have her children and husband do them. She stated that during this period her neck and shoulders hurt her a great deal, especially when she got tired doing heavy work. She said the pain was in the back of her neck, down her back and shoulders and into her arms; that it was just a dull pain at the present time. Witness stated she was still going to Dr. Nickels once a week; that he gives her chiropractic treatments on the back of her neck and three places on her back, which treatments were very painful; that he gives her medicine to relieve the pain and for her nerves. She stated that the treatments make her sick for about two or three hours, then she starts feeling better for two or three days when the pain comes back. She said the pain was the same pain she had right after the accident and the doctor continued to give her pills for her nerves and for the pain in her back. She stated she sometimes takes six or eight pills a day; that the doctor said to take two every time she needed them. She testified that prior to the accident she was able to sleep at nights but after the accident there were a lot of nights she was so nervous she could not sleep because of nervousness and the pain in her back; that she had to take Dr. Nickels’ medicine to relieve the pain. The evidence is that plaintiff has six children to care for now, one having been born after the accident, to-wit, January 8, 1960. She was 35 years of age. She gave this testimony:

“Q. * * * And what are your complaints at the present time in regards to your health? A. Well, just mostly my neck and back here (indicating) if I do ironing, or anything like that, and my shoulder starts hurting; I get awfully nervous with the children, * * ”

Witness stated she still has headaches and dizziness; that the floor feels like it is tilting in front of her; that this condition happens once or twice a week; that there is never a day she does not have pain in her shoulders. She stated that she still can drive an automobile but can’t go on long distance drives as she could before the accident; that if she drives long distances her shoulder and back start hurting and she gets nervous.

Dr. Harvey Nickels, a physician in Waynesville, Missouri, treated . Ellen Salzwedel, plaintiff, for injuries allegedly received in the accident. The doctor stated that he had been treating plaintiff on an average of twice a month since the accident; that she complained of severe pain in the neck region, particularly where the neck and the rib posterior or thoracic area joined together, and severe headaches, with tightness of the neck and numbness and tingling down the arms and pain in both shoulders and in the muscle masses along the neck and the back. He gave this answer: “Physical examination of the patient resisted active and passive motion. In other words, she wouldn’t move her head in full range of motion, nor neither would she permit me to move her head in full range of motion, and there was a considerable amount of pain, or what appeared to be pain, elicited on these maneuvers, and the neck had— moves to the right and left and backwards and forwards, and all those areas of movement she complained of considerable pain.”

As to treatment, the doctor stated: “Well, treatment that was given was conservative tpye of treatment in so much as her activities were restricted, she was placed on pain tablets and muscle — skeletal— muscle relaxation, with a drug that stops the inflammatory reaction in the neck and in those injured areas.”

The doctor’s diagnosis was whiplash injury or strain or sprain of the cervical spine and thoracic spine, with possible damage to the spinal cord. He testified he took x-rays which did not show any fractures ; that he had treated Ellen Salzwedel several times since the first treatment, at least twice a month and sometimes more, all the way from October 3rd until the present time. The treatment given was manipulative therapy with deep massage on the muscles, and injections of cortisone, which is an anti-inflammatory drug, with associated skeleton-muscle relaxing and pain tablets. He also gave her some sedatives because of her inability to sleep. He stated that plaintiff had the same complaints each time she came into his office; that the treatments gave her temporary relief. He testified:

“Q. .Now, these injuries, Dr. Nickels, are they permanent ? A. I’d say yes.”

Dr.’ Nickels gave it'as his opinion that Ellen’s trouble with her monthly periods was due to nervousness associated with the accident.

Dr. D. L. Yancey, Orthopedist of Springfield, testified for defendant. He made a neurological test of. Ellen Salzwedel and found only subjective symptoms, no nerve injury. His first examination was on March 9, 1959. At that time plaintiff complained of suffering in and around her neck, shoulders and back; that she had headaches and dizziness and, from the history she gave him, the doctor thought her trouble was related to the accident. He made a diagnosis of sprain of supporting muscles and ligaments of the neck. He testified these injuries occurred frequently from rear end automobile collisions. He stated that plaintiff had undoubtedly sustained a strain of the muscles and ligaments of the neck but she appeared to be progressing satisfactorily; that such injuries are somewhat slow in healing but she had no indication of permanent disability. He examined plaintiff again May 17, 1960, and, in his report, stated that she had some permanent disability but that it would be little, if any, as a result of the accident. The doctor stated that plaintiff, at the last examination, still was having discomfort in the neck and muscles; that she had a mild tenderness along the upper border of each trapezoid muscle or large muscle that runs from the neck down to the shoulder area, and there was noted in the lumbo-sacro area of her spine a mild tenderness. This is the area between the pelvis and waist line. He stated there was a mild crepitation noted in each shoulder during manipulation; that this is a grinding sensation in the shoulder joints. The doctor testified that the condition of the trapezius muscle has a relation to the thoracic nerves. It was his opinion that the pain suffered by plaintiff is primarily due to tightness and muscle tenseness brought about after. hard work or when the patient becomes tired. He stated that plaintiff complained of numbness in her arms, and, at his last examination he could not detect any change in sensations there. He testified: “If there is certain compression made on a nerve it may produce numbness or a loss of normal sensation”. He said “such numbness would come from about the fourth, fifth and sixth cervical nerve in her neck”; that plaintiff complained of her neck injuries and if there is any permanent damage to a nerve you have permanent reflex change and permanent hypesthesia, or “what we call anesthesia numbness. It’s possible.” The doctor stated the best cure for such trouble is inactivity; that medicine would not have much effect. He said the length of time plaintiff would have to be inactive would be difficult to state; that if she were totally inactive she would not have the pain but the more she shifts the more discomfort she will have. He said her muscles get tired and she probably has some amount of swelling which may produce some change in sensation. He testified that x-rays would not show strain of the neck or of the ligaments of the cervical vertebra or the muscles ; that between the two examinations he made there was not much change in plaintiff’s strength. The doctor said he could visualize that plaintiff had some degree of permanent disability; that from her condition, as he found by examination, plaintiff should have more intensive neurological examination. He admitted that some cases like plaintiff’s have progressive symptoms.

The record shows that on the morning of the trial plaintiffs agreed to reduce .their claims to an amount within the liability limits of defendant’s insurance policy and to reduce such claims by an amount of $1900.-00 paid in settlement of the Robert Salzwedel case, if defendant would reveal the amount of coverage, which he refused to do. This stipulation is in evidence.

The stipulation sets out that this case was identical to the case tried in the Robert Salzwedel case and that defendant’s deposition was taken in that case and that the attorneys representing defendant in taking the deposition are also representing defendant in the instant case. Plaintiffs offered to admit this deposition hut it was objected to by the defendant.

In our opinion we will refer to the appellant as defendant and to respondents as plaintiffs, the position occupied by the parties in the lower court.

Under defendant’s first allegation of error he complains of the action of the trial court in entering judgment on the jury’s verdict in favor of plaintiff, Ellen Salzwedel, for damages for personal injuries because the verdict is excessive, against the law and evidence and is the result of bias, passion and prejudice of the jury.

Defendant admits that this point was not specifically raised in his motion for new trial but seeks relief under the plain errors rule as provided in Supreme Court Rule 79.04, V.A.M.R.

The law is well settled that this court may consider plain errors of record even though not specifically raised in the motion for new trial or defectively raised. Supreme Court Rule 79.04, V.A.M.R. However, this rule applies only when the court deems that manifest injustice or miscarriage of justice has resulted therefrom. Kamo Electric Cooperative v. Brooks, Mo.App., 337 S.W.2d 444, 445 [1, 2].

In Knight v. Swift and Company, Mo. Sup., 338 S.W.2d 795, 801, [11, 12] the court states this law: “The substance of appellant’s point is that the verdict is so excessive that it demonstrates bias and prejudice or misconduct. If that is true the error cannot properly be corrected by a remittitur. Dye v. St. Louis-San Francisco Ry. Co., 361 Mo. 331, 234 S.W.2d 532.”

On page 802 [13-15] of the opinion the court .stated: “We have ruled frequently and consistently that the amount of the verdict does not necessarily in and of itself indicate passion and prejudice. Abernathy v. St. Louis-San Francisco Ry. Co., Mo. Sup., 237 S.W.2d 161; Keely v. Arkansas Motor Freight Lines, Mo.Sup., 278 S.W.2d 765; Osburn v. Kansas City Southern Ry. Co., 360 Mo. 813, 230 S.W.2d 856.” Coveless v. Locke Distributing, Company, Mo. Sup., 313 S.W.2d 24, 33 [13].

Defendant contends that the circumstances require a new trial not only because of the size of the verdict in comparison to the injuries, but because of the inflammatory appeal to drunkenness presented by counsel for plaintiffs in the evidence and final argument.

It has been held, and rightly so, that argument as to intoxication is improper when there is no evidence to support it. Schwinegruber v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 782, 786 [6, 7]; Leaman v. Campbell 66 Express Truck Lines, 355 Mo. 939, 199 S.W.2d 359, 365 [6], However, in the case at bar, there was ample evidence as to the condition of the defendant which supported the statements made by the counsel for plaintiffs. We find no merit in this contention.

Defendant’s next contention under this alleged error is that the verdict of $9,000.00 in favor of plaintiff, Ellen Salzwedel, is excessive and against the weight of the evidence and requires a remittitur of $6,-000.00.'

In passing upon this alleged error we view the evidence as to plaintiff’s injuries from a standpoint favorable to her and ignore defendant’s contrary evidence. Morgan v. Thompson, Mo.Sup., 325 S.W.2d 794, 798 [3] ; Haferkamp v. City of Rock Hill, Mo.Sup., 316 S.W.2d 620, 624, [1-3]; Riggs v. Metcalf, Mo.Sup., 315 S.W.2d, 791, 796 [6].

Excessiveness of verdict is dependent upon the facts of the particular case, and in determining the question consideration is to be given the nature and extent of the injuries and losses, diminished earning capacity, changing economic factors and compensation awarded and approved in cases of similar or fairly comparable injuries, and the nature, extent and permanency of the injuries are the paramount factors and the ultimate test of excessiveness or inadequancy. Brown v. Payne, Mo. Sup., 264 S.W.2d 341, 348 [10].

In Greco v. Hendricks, Mo.Sup., 327 S.W.2d 241, 245, [2, 3], the court stated this law: “The trial court is vested with discretion to order a new trial on the ground of exces-siveness and such an order is equivalent to granting a new trial on the ground that the verdict is against the weight of the evidence. We usually do not weigh the evidence on appeal from an order granting a new trial on the ground of excessiveness, but determine only whether there was substantial evidence, viewed in the light most favorable to the trial court’s action, to support the trial court’s order. “If so, there has been no abuse of discretion and the trial court’s action will be sustained. Combs v. Combs, Mo, 295 S.W.2d 78, 80 [1, 2]; Wicker v. Knox, supra, 242 S.W.2d 569 [3, 4].”

We agree with defendant that the law is that there is no precise formula for gauging whether a verdict is excessive but each case depends upon its own facts. The nature, extent and permanency of the injuries are the paramount factors and the ultimate test of excessiveness. The award must be what will fairly and reasonably compensate plaintiff for her injuries. Larson v. Atchison, T. & S. F. Ry. Co., 364 Mo. 344, 261 S.W.2d 111; Marczuk v. St. Louis Public Service Co, 355 Mo. 536, 196 S.W.2d 1000.

The amount of damages for personal injuries is primarily the jury’s function and prerogative, and upon appeal, the appellate court pays deference to the trial court’s action in seriously considering and passing upon excessiveness or inadequacy of verdicts and is reluctant to disturb judgment or require remittitur. Larson v. Atchison, T. & S. F. Ry. Co, supra, 261 S.W.2d page 116 [5-8]; Lindsey v. Williams, Mo.Sup, 260 S.W.2d 472; Mooney v. Terminal R. R. Ass’n, 353 Mo. 1080, 186 S.W.2d 450, 455; Schaefer v. Transamerican Freight Lines, Mo.Sup, 173 S.W.2d 20, 24-25.

In the instant case plaintiff, Ellen Salzwedel, was involved in a serious rear end automobile accident. Admittedly, she-was in good health prior to the accident, but, immediately thereafter, suffered severe pain in her neck, back of her neck and back, together with pain extending over her shoulders and down into her arms causing numbness and headaches. While the evidence is that she did not seek medical aid for two days later, yet, she was suffering from the injuries above mentioned. She had dizziness. This accident happened October 1, 1958, and the pain and suffering diagnosed as a strain of the muscles and ligaments of the neck and in the region of her right shoulder was made by defendant’s doctor, Dr. D. L. Yancey from his examination of plaintiff March 9, 1959, and from a further examination made by said doctor May 17, 1960. In the last examination the doctor gave it as his opinion that plaintiff had some permanent disability as a result of the accident and he testified that at that time she was still having the same severe pain in her neck, back, shoulders and arms that she had when he first saw her. There was no improvement. The doctor stated she had a mild tenderness along the upper border of each trapezoid muscle and he found a mild tenderness in the lumbo-sacral area of her spine; that there was a mild crepitation noted in each shoulder during manipulation. He testified that plaintiff suffered pain primarily due to tightness and muscle tenseness which was brought about by hard work or when the patient became tired. He admitted that plaintiff still had numbness in her arms at his last examination and .he had not detected any improvement. He said that certain compression made on a nerve may produce numbness or loss of normal sensation and that such numbness in the arm could come from the fourth, fifth and sixth cervical nerve in her neck. The doctor stated that the best cure for such trouble was inactivity;" that medicine would hot have much effect. He said the length of time she would have to be inactive would he difficult to state; that if she remained totally inactive she would not have the pain hut the more she shifts the more discomfort she will have; that when her muscles get tired plaintiff probably will have swelling which will produce some change in sensation. He said he could visualize that plaintiff had some degree of permanent disability and from his examination he felt she should have more intensive neurological examination.

Dr. Nickels’ diagnosis was “whiplash injury or strain or sprain — the same thing— of the cervical spine and thoracic spine, with possible damage to the spinal cord”. He testified he had been treating plaintiff since the accident about twice a month and sometimes more from October 3rd, 1958, until the present time. His treatment was by manipulative therapy with deep massage on the muscles, and injections of cortisone, which is an anti-inflammatory drug, with associated skeleton-muscle relaxing and pain tablets, and sedatives to make plaintiff sleep. He testified that plaintiff’s injuries were permanent.

Defendant relies on the opinion in Larson v. Atchison, T. & S. F. Ry. Co., supra, Mo.Sup., 261 S.W.2d 111, as authority for his contention that the judgment in the instant case should be reduced by remittitur of $6,000.00. In the Larson case a postal clerk was injured when a mail pouch struck him in the face. He brought an action against the railroad and recovered a judgment of $15,000.00. The trial court required a remittitur of $5,000.00 and judgment was entered for $10,000.00. On appeal, the railroad claimed the judgment excessive and asked that it be reduced by re-mittitur. It is unnecessary to set out the evidence of both the plaintiff and the doctors who treated him, but, on page 118 [9], the court stated:

“In this case the plaintiff’s sole claim of injury and disability is repeated headaches and a nervous condition manifested by the fact that his memory is not as good as it once was. There is no medical or hospital expense and there was the minimum of medical treatment and none indicated or recommended in the future. This man has never been in a hospital or a clinic. He was injured on the 20th day of January 1951 and returned to his usual work at the regular pay on the 12th day of February 1951 and so far as appears from this record has not missed a day’s work since. Except for the first three weeks there has been no loss of wages and no diminished income or earning capacity. Considering the rules indicated and all the factors employed in passing upon the excessiveness of verdicts, including the possibility of error on the part of this court, this verdict is yet excessive in the sum of $4000. McBride v. Clarida, Mo.App., 254 S.W.2d 36; Harvey v. Gardner, 359 Mo. 730, 223 S.W.2d 428; Baker v. Kansas City Ter. Ry. Co., Mo.Sup., 250 S. W.2d 999. If, therefore, the plaintiff will enter a remittitur in the sum of $4,000.00, within fifteen days, the judgment will stand affirmed in the sum of $6,000, as of the date of the judgment, otherwise the judgment will be reversed and the cause remanded for a new trial.”

We will not go into all of the authorities cited by defendant. (See authorities cited in Morgan v. Thompson, Mo.Sup., 325 S.W.2d 794, 799 [4]). These numerous authorities so cited follow the same rule as in the case here set out.

Plaintiff cited Riggs v. Metcalf, Mo.Sup., 315 S.W.2d 791, 796, as having comparable facts to the facts in the instant case.

This was an automobile collision case where plaintiff recovered for personal injuries a judgment of $20,000. The court found, on page 800 [8], that:

“The favorable evidence in Donna’s case is sufficient to show that a regularly employed married woman earning $140 per month and certain commissions has sustained serious, permanent and painful injuries which have resulted in 50 to 60 per cent disability of her body as a whole; that the condition is permanent;- and that 'her injuries hqve caused degenerative changes in the nerves, which changes are progressive, and her condition will get worse. Under the facts shown we do not find the verdict sufficiently excessive to require any remittitur. We have found no cases closely similar, but compare McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, 369 (where the plaintiff had less expectancy and more earnings); and Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 125 (where the plaintiff sustained less injuries, was much older and had lost no wages.”

In the instant case the injuries shown as suffered by plaintiff are in no sense comparable to the injuries suffered by the plaintiff in the Riggs case.

In the case at bar plaintiff’s sole claim of injuries and disability is a sprain of the neck muscles, pain in the back of her neck and back, extending down over the shoulders into the arms, together with headaches and a nervous condition. There is no medical or hospital expenses. She never was confined to a hospital. While the evidence does show that she has the same complaints she had after the accident; that she suffers dizziness and pain when she tried to work, yet, she has lost no time from her work. Some things she cannot do as completely as before the accident and she must be assisted by her children and husband, yet, the evidence shows she has been working in the home, driving her car, went to the hospital to see about her daughter, who was confined therein three days after the accident, and that she had been treated by her family doctor, an osteopath, some two times a month since her injury, yet, the evidence shows that after the first treatment it was some time before she went back to the doctor. She complained of injuries to her monthly periods but that condition no longer exists. Considering the rule indicated and all factors employed in passing upon excessiveness of verdicts, this verdict is excessive in the sum of $3,000. If, therefore, plaintiff will enter a remitti-tur in the sum of $3,000 within fifteen days, judgment will stand affirmed in the sum of $6,000 as of the date of .the judgment, otherwise the judgment will be reversed and the cause remanded for a new trial as to damages.

Under alleged error numbered II complaint is made as to the action of the trial court in overruling defendant’s pre-trial motions for continuance sought under the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.A.Appendix, § 501 et seq. and in ordering defendant to proceed to trial in violation of his rights under said Act as a member of the Armed Forces in the military service of the United States, overseas.

To support his position he cites Orrick v. Orrick, Mo.App., 269 S.W.2d 153, 155 [1, 2], where the court stated:

“Since it is, therefore, a matter for the sound discretion of the trial judge to determine under all the circumstances whether, in the particular case, a stay of the proceedings is required by reason of the Soldiers’ and Sailors’ Civil Relief Act, the ruling of the court on that issue will not be disturbed unless such discretion has been abused. 130 A.L.R., page 784.”

This same rule of law is declared in State ex rel. Goehler v. Ladriere, 354 Mo. 515, 189 S.W.2d 986, and Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587, cited by plaintiff.

In the instant case defendant was a soldier located at Fort Leonard Wood. After the accident in question he was sent to Germany. Prior to his going overseas his deposition was taken in an action for damages against him brought by Robert Lee Salzwedel, a minor, by Harry R. Salzwedel, his natural father and next friend, growing out of the same accident that the suits in the instant case grew out of. The same issues as in the instant cases were involved in the Robert Lee Salzwedel case. By stipulation filed by the parties’ attorneys in the instant case, it was agreed that the defendant was covered by a liability insur-anee policy and that the insurance company elected not to disclose the coverage of the policy by'so instructing its attorney.

Plaintiffs offered to reduce their claim to come within the limits of the defendant’s insurance policy if the coverage would be disclosed, and also to reduce the amount sued for in an additional sum of $1900, the amount paid to Robert Lee Salzwedel for settlement of the suit brought by him.

The deposition of the defendant involving the same issues in the Robert Lee Salz-wedel case as in the instant case was taken by plaintiff and defendant was represented by the same attorneys as represent him in the instant case. This deposition was offered in evidence by plaintiffs but objected to by the defendant. The record shows that the action in the instant case was filed August 19, 1959; that service was had on defendant through the Secretary of State, change of venue granted and the cause tried before Special Judge Hon. Claude E. Curtis, June 1, 1960. It further discloses that defendant was refused permission to return to the United States for trial for the reason that he had no time allowance.

The record discloses that defendant sought by writ of prohibition in the Supreme Court to prevent the trial court from proceeding in this case and the writ was denied. We find that the trial court, under all the circumstances presented, did not abuse his discretion in refusing to grant a continuance or delay of the trial for reason that the defendant was in the armed services of the United States under the Soldiers’ and Sailors’ Civil Relief Act. This alleged error is denied.

The third alleged error complains of the giving of verdict-directing instructions Nos. 2 and 3 because said instructions, in the first paragraph, impose a greater burden upon defendant than the law requires.

To support this contention defendant cites Section 304.010 RSMo 1949, V.A.M.S. This section requires that every person operating a motor vehicle upon the highways of this state shall exercise the highest degree of care.'

The first paragraph of instructions 2 and 3 reads: “The court instructs the jury that it is the duty of the driver of an automobile following another automobile to keep a lookout to observe the automobile ahead and its movements, and to keep his automobile under control so that he would not run into the automobile ahead should it slow down, and to keep his automobile a sufficient distance behind the automobile in front of him so as to avoid danger in casé of the slowing down of the automobile ahead.”

We find that it was held in Gooch v. Avsco, Inc., Mo.Sup., 337 S.W.2d 245, 249 [3, 4] that it is the common law duty of every motorist to keep a lookout ahead and-laterally for other vehicles upon the highway to avoid injury and damages to others. Evett v. Corbin, Mo.Sup., 305 S.W.2d 469, 472. That it is the common law duty of a motorist in the rear of another vehicle to operate his vehicle in such a position as to have it under such control as to be able to stop or take other appropriate measure to prevent running into the car ahead of him if the latter comes to a sudden slowing or stop; and that failure of the operator of the vehicle in the rear to exercise the highest degree of care in those respects is negligence. (Citing much authority.)

In the Gooch case, 337 S.W.2d page 251 [6, 7] it was stated: “Plaintiff did not plead the provisions of § 304.017. Instead the case was submitted under the common law duty of an operator of a motor vehicle and in accordance with the common law negligence pleaded in the last amendment made to the petition. It was the prerogative of plaintiff so to do. Brooks v. Mock, Mo., 330 S.W.2d 759, 766 [9, 10]. Statutory rules of the road merely set a minimum rather than a maximum standard of care. They are not preclusive of common law negligence unless the common law negligence pleaded and proved is less in degree than that set forth in their restrictive provision. 60 C.J.S. Motor Vehicles § 268, p. 648. Defendants fail to point out and we have found no portion of the instruction that in any wise conflicts with the standards fixed by these statutes. When the instruction is read in the light of the statutes, it is seen that they are in harmony. The contention is without merit. Jones v. Rash, Mo., 306 S.W.2d 488, 493.”

In the instant case plaintiffs’ petition alleged common law negligence of the defendant and comes clearly within the law set out in the Gooch case. Plaintiffs state that the reason for the giving of the two instructions is that defendant pleaded in his answer contributory negligence. He did not instruct on contributory negligence and although he did not so instruct, plaintiff, Ellen Salzwedel, and her daughter, Elizabeth, had the duty to exercise the highest degree of care and ordinary care. We find against defendant on this alleged error.

The last alleged error is as to the giving of the verdict-directing instruction No. 4 on damages.

Under this contention defendant says it is elementary law that error is committed in an instruction which allows damages not supported by evidence, citing Johnston v. Owings, Mo.App., 254 S.W.2d 993; De Long v. Broadston, Mo.App., 272 S.W.2d 493; and Spears v. St. Louis Public Service Co., Mo.App., 202 S.W.2d 578.

With this law we agree. It is contended by defendant that the evidence contains no description whatsoever of future suffering to the minor, Elizabeth. It is admitted that the verdict in favor of Elizabeth is not excessive, yet, defendant says the instruction may well have been influential in elevating the verdict and judgment in favor of Elizabeth's mother, Ellen, for $9,000, and, for that reason, defendant says he should have a new trial. With this contention we do not agree. The instruction as to Ellen was correct.

Defendant claims no error as to the judgment rendered in favor of Elizabeth, therefore, we think that if error were committed, it would be harmless, especially in view of the fact that defendant offered no corrective instruction.

It is therefore ordered that if plaintiff, Ellen Salzwedel, enter a remittitur in the sum of $3,000 within 15 days this judgment will stand affirmed, otherwise the judgment will be reversed and cause remanded for new trial as to damages for personal injuries on Count II of the petition. So ordered.

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


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    Polly Jane CALDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.
    Denver Adams, Hyden, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Indicted and tried for the murder of her husband, Polly Jane Caldwell was convicted of voluntary manslaughter and sentenced tó 5 years’ imprisonment.' She appeals.

The homicide took place late at night on a road -not far distant from a garage and welding shop operated by Aubrey Dixon. The decedent, Shelby Caldwell, accompanied by Polly Jane and their little daughter, had driven his car to the shop along about the close of day and they had stayed there all evening. According to Dixon, some work was done on Caldwell’s automobile, but Polly Jane says the main and only business was the drinking of some red whiskey Dixon had on hand. At any rate, it is agreed that Caldwell and Dixon did some drinking together there at the shop over a period of several hours, that the Caldwells eventually left in their car, and that within a few minutes thereafter Caldwell was shot and killed a short distance down the road. The car was in the ditch and Caldwell was found dying on the ground when witnesses arrived. Polly Jane and her little girl had disappeared.

Polly Jane testified that when she and her husband and daughter left the shop Dixon went with them and that Dixon and her husband were arguing, Dixon accusing Caldwell of having stolen a pint of liquor from him. She said that when they had ridden “a little piece below the shop” the two men got out to “have it out” and the shooting ensued. She tried to leave in the car but wrecked it and then fled on foot, with Dixon threatening to kill her if she told on him.

Dixon’s story is that he did not leave with the Caldwells but heard the shots and went to the scene, where he found Caldwell mortally wounded and alone in the road. Also in the-road he found his own pistol, which had' been kept in the glove-compartment of his automobile back at the garage. ITe immediately left to summon help and notify the sheriff. His testimony that he was still at the shop when the shots were fired was corroborated by a gárage'‘employee'who claimed also to have been there at íhe timé. -Polly Jane, however, says this witness had left the shop beforehand.

When the sheriff apprehended Polly Jane she admitted, “I killed him, look at my legs, look at me where he kicked me, he tried to kill me.” At the trial she said she made this statement out of fear, because Dixon was- present with the sheriff and still had his gun with him. However, therq was no evidence whatever of any pressure or intimidation that would have justified the court in excluding this confession, tier testimony, seeking to avoid it was for -the jurors to believe or disbelieve, and her performance under cross-examination leaves little doubt that their judgment was right,

It is contended that without the confession the evidence will not support a conviction. The answer is that aside from the confession the only evidence necessary was that the crime had been committed by someone. Proof of the corpus delicti, as required by Criminal Code of Practice, § 240, and proof of the defendant’s guilt are two separate things. Warnell v. Com., Ky.1952, 246 S.W.2d 144, 147. Once the fact of the crime is otherwise proved, that the defendant is the one who did it can be established entirely by his own confession.

Nor was it necessary to instruct on the requirement for other evidence of the corpus delicti than the confession. “It has been repeatedly held that an instruction under Section 240 is not proper or required when the corpus delicti has been sufficiently established by other evidence than the defendant’s confession, and that it is not necessary in order to sustain a conviction that there shall be other evidence tending to connect the accused with its commission.” Williams v. Com., 1947, 306 Ky. 225, 206 S.W.2d 922, 923. In the case of Warnell v. Com., Ky.1952, 246 S.W.2d 144, on which Polly Jane relies, the evidence was insufficient to prove that death had resulted from criminal' -rather than • natural causes (exposure to the elements). In the instant case there can be no'doubt. The evidence was amply sufficient, without' the confession, to establish that Caldwell’s death was homicidal. •

Another suggested ground for reversal is that the court should have given an accomplice instruction as to the testimony of Dixon. Criminal Code of Practice, §§ 241, 242. There may, of course, he a good deal more than meets the eye in this case, but we are confined to the record. Polly Jane says- that Dixon did the shooting, with no complicity on her part. He says he had nothing to do with it. That they may have collaborated with each other 'is purely a speculative possibility. “If there is not some evidence conducing to show that a witness is an accomplice, it is not proper to submit the question * ■ * * to the jury * * Elmendorf v. Com., 1916, 171 Ky. 410, 188 S.W. 483, 489; Anderson v. Com., 1918, 181 Ky. 310, 204 S.W. 71. Ownership of the weapon used by another in committing the crime is insufficient, of itself, to raise the issue. Anderson v. Com., 1918, 181 Ky. 310, 204 S.W. 71; Ringstaff v. Com., Ky.1955, 275 S.W.2d 946, 949.

A state police detective who investigated the case testified, inter alia, that on the next day following the shooting Polly Jane declined to make a statement but that she later gave him a statement in her attorney’s presence and made an additional one at the state police headquarters in Frankfort. Neither of these statements was introduced in evidence, nor were their contents divulged to the jury. For reasons not apparent in the record the Commonwealth made no effort to prove them. It is contended that the tactical objective was to raise in the minds of the jurors some inference with respect to a lie detector test. As the transcript shows no reference whatever to a lie detector test, we are unable to accede to this argument. Nevertheless, it is a questionable practice to elicit testimony concerning a statement that is not expected to be offered in evidence, and this court would not hesitate to reverse on that ground should it appear that prejudice might reasonably have resulted. In this particular case, though we disapprove the line of questions alluding- to statements that counsel for the state apparently did not intend to introduce, we think the failure to prove them was more conducive to an inference that they were not incriminating than to an inference that they were. For this reason we conclude that there was no prejudicial error. Moreover, counsel made no motion for an admonition or for discharge of the jury, as would have been necessary, to the preservation of the appellant’s rights in.this resp.ect. Cf. Senibaldi v. Com., Ky.1960, 338.S.W.2d 915, 920.

Judgment affirmed.


author: MOREMEN, Judge.

text:
    Marion Williams PEAVY, Appellant, v. Frances Clair Hudson PEAVY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.

      Marion Williams Peavy, pro se, Gess, Mattingly, Saunier & Atchison, Charles L. Calk, Lexington, for appellant.
    Elwood Rosenbaum, Virgil Fowler, Lexington, for appellees.
   MOREMEN, Judge.

The Fayette Circuit Court granted to ap-pellee, Frances Peavy, an absolute divorce from appellant, Marion Peavy, lump sum alimony of $10,000, custody of their two children who, at the time, were eleven and twelve years of age, maintenance for them in the sum of $120 per month and costs, including an attorney’s fee of $1,200.

Appellant contends that the awards of money were excessive. In addition he complains because the judgment did not specifically include a provision allowing appellant reasonable rights of visitation with the children.

The record discloses that during a short span of time appellant demonstrated that he was a man of considerable business acumen and that in the immediate years preceding the collapse of this marriage the family lived well, in a good neighborhood, and on a scale higher than most. They usually rode in new expensive cars. When the divorce suit was instituted the family had a Cadillac, a Dodge and a Ford. Ever since the children were old enough to ride, they had horses and ponies.

Appellant concedes in his brief that at the time the divorce action was filed, on July 8, 1958, he was a relatively successful real estate agent and dealer. He was engaged also in several side line activities, but the record is not clear as to whether they were profitable.

Appellant’s brief advances the theory that the divorce proceeding so hampered his activities that he is now reduced to working in the capacity of photographic assistant at a wage rate of $50 per week. He blames the fact that simultaneously with the institution of the suit a general restraining order and general orders of attachment were obtained and the latter at various times thereafter were served upon six banking institutions in Lexington, one in Williamsburg, one in Nicholasville, and one in, Chattanooga, Tennessee. In addition it is stated that a general order of attachment was issued and served upon all tenants who resided on various pieces of real estate he owned and that they too were summoned to answer garnishees. These actions, it is said, caused a general stampede of all his creditors to protect their various interests. In any event, appellant instituted proceedings under Chapter 11 of the Bankruptcy Act (11 U.S. C.A. § 701 et seq.) in the District Court of the United States for the Eastern District of Kentucky and so far as this record shows they are still pending. Under the terms of the Act, appellant was subsequently appointed debtor in possession and granted authority to manage his own estate. From that time on the various actions against him were stayed.

An important item for consideration in this law suit, however, was presented by the fact that when appellant petitioned the District Court it was necessary for him to list, under oath, schedules of his assets and he placed the valuation of his assets at $89,-852.53. His debts were $59,852.53.

It must be stated before we enter into a discussion of the above schedules, that at the time of the divorce suit appellant owned several vehicles other than the three automobiles listed above, but by the time he filed the schedule of personal property he had only a Ford and a Dodge automobile. After the divorce suit was filed he sold the Cadillac to his brother in Georgia for the sum of $3,100 for which he states he received a credit of $1,100 on an amount that he owed him and paid a $2,000 mortgage which the bank held against the car. In addition, on the day after the divorce suit was filed he went to the Williamsburg bank before the attachment arrived and withdrew his deposit of $4,633.98.

When we return to the bankruptcy proceeding (this record offers only a bare sketch of what has taken place there) we find that later in the proceeding two appraisers were appointed and their report shows that appellant’s liability exceeded his assets by about $11,000. It is argued that appraisal is the better estimate of the true value of the property, and the chancellor should have based the awards on it.

Appellant’s estate was of a mixed nature and is difficult to evaluate. He owned about ten pieces of real estate, securities, automobiles, notes which were secured by second mortgages on various pieces of real estate, real estate commissions owed to him, and other items of personal property. Such property is never easy to appraise and in this case the evidence in no instance has reached a high definitive quality. The circuit court pointed out in his finding of fact that “it is manifest that no true evaluation can be made of the defendant’s interest or equity in the property without a sale of the property, and in the absence of such a disposal the court is left to conjecture and speculate as to the true worth of the defendant’s estate.”

It is not unusual that evaluation of property in divorce has some speculative aspects. The chancellor is forced to base his decision upon the evidence which is presented to him and, in cases of this type, it is seldom complete and certain. The high emotional disturbance of the parties at the time does not stimulate a desire to be fair or just about any phase of the controversy and this does not aid the court in obtaining the full facts'. Awards of alimony or maintenance do not result from the exercise of exact rules of science or art — all are tinctured with guesswork — and most clearly is this so when the chancellor is concerned with fixing value.

Value is a word of many meanings and its determination often depends upon the viewpoint and background of the person who is concerned with it. An obj ect may be of value to one person and useless to another. In law we have no absolute rule for fixing all values, although there has been an attempt to establish plain rules for some types of cases. Nevertheless they are not uniform. We recognize that when highly personal objects are being appraised the value to the owner may be the true value; sometimes in other valuations, the fair market value is the test. In public utility rate cases sometimes the rule of “reproduction costs” is applied. Again an attempt is made to establish the “invested” value and grant a fair return on that. In all type cases we have found that competent expert appraisers have widely diverse views as to the value of property' — particularly in condemnation cases — where witnesses introduced by opposing parties rarely, if ever, reach an accord.

Although the chancellor did not state that he was using the valuation supplied by appellant in the bankruptcy proceeding, he granted lump sum alimony in an amount which would be equal to about one-third the net value of the estate listed. In addition, as pointed out above, at the time the divorce suit was filed appellant had other personal property and money which did not appear on the bankruptcy schedules. So, in fact, the chancellor did not award even the amount usually reached by the application of the one-third rule.

In Petrie v. Petrie, Ky., 262 S.W.2d 182; and Yonts v. Yonts, Ky., 329 S.W.2d 209, we stated that an award of alimony is within the sound discretion of the circuit court and will not be disturbed unless the award appears to be clearly erroneous. We believe the awards of alimony and maintenance were fair ones and should not be disturbed. An examination of the record has convinced us that the award of $1,200 for the attorney’s fee was minimal.

In connection with the appellant’s contention that the judgment did not provide for visitation rights, we find that it was not shown that he had ever been denied that right. Plowever the trial court retains jurisdiction of this matter and if there has been any abuse of appellant’s right, it may be corrected upon proper motion.

The judgment is affirmed.


author: STANLEY, Commissioner.

text:
    Vell Keith SMITHERS, Appellant, v. William BINDNER, Chief of Police of Louisville, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.
    Marion Vance, Glasgow, Guy C. Shearer, Louisville, for appellant.
    John Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   STANLEY, Commissioner.

The appellant, Veil Keith Smithers, filed a petition for a writ of habeas corpus on August 17, 1961, against William Bind-ner, Chief of Police of Louisville, in which he prayed that he be discharged from unlawful restraint and custody. The petition charged that on that day he had been arrested by Louisville police officers upon a warrant of arrest issued by the Governor of Kentucky in a proceeding by which the State of New York was attempting to extradite the petitioner. He further stated that the initial arrest and detention were not in compliance with the law and because thereof he was being denied due process and equal protection of the law. Judge Knight of the criminal division of the Jefferson Circuit Court, after a hearing, denied the writ and remanded Smithers to jail.

The case was apparently “practiced by ear” for there are no other pleadings and no evidence in the record filed in this court except what is denominated “Statement for appeal filed in court August 23, 1961.” It was .examined and approved by the Judge and made part of the record. The stater ment is a narrative of the antecedent and present proceedings. It states that Smith-ers had been arrested on May 10, 1961, and recites that certain documents were then before the court. The only documents in the record before us are a carbon copy of an order of Judge Grauman denying habeas corpus and remanding Smithers to jail for thirty days to enable his arrest “under a warrant of the Governor on a requisition of the executive authority of Onondago County, New York, or until he shall be legally discharged,” and a copy of an affidavit of a deputy clerk of the Louisville police court which shows that the original had been filed with the Governor on an extradition hearing. The affidavit states the proceedings had in the police court. The narrative states “the defendant submitted a copy of a warrant of arrest signed by the Honorable Bert T. Combs, Governor of the State of Kentucky.” It is not in the record. The “narrative” undertakes to state some things that were not done with respect to the petitioner’s identity and failure of the defendant (the Louisville Chief of Police) to prove the plaintiff “was within the jurisdiction of the State of New York at the time the alleged crime for which the State of New York seeks'extradition was committed.”

The briefs in this court contain many statements of fact not revealed in the record. The glaring and fatal deficiency of the record is apparent.

The appellant vigorously contends his constitutional rights were violated in several particulars. The appellee rebuts the contentions upon the ground that the primary proceedings were proper; but even if they were not, they do not affect the validity of the Governor’s rendition warrant. The Attorney General invites us to examine the record of the extradition proceedings held by the Governor which he says are on file in the office of the Secretary of State. We respectfully decline the invitation.

The burden is always upon an appellant to show 'an error with respect to the proceedings and the judgment appealed and to rebut the strong presumptions of regularity and the adverse inferences from the silence of the record in which an appellate court indulges. Ritchie v. Perry County, 276 Ky. 57, 122 S.W.2d 988. Certainly no error affirmatively appears in the record.

It is fair to say attorneys filing brief for the appellant did not represent him in this trial court. Nor was the Attorney General’s office represented there.

The judgment is affirmed.


text:
    Vell Keith SMITHERS, Petitioner, v. Hon. Thomas J. KNIGHT, Judge. Jefferson Circuit Court, Criminal Branch, First Div., Respondent.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.

      Guy C. Shearer, Louisville, for petitioner.
   STANLEY, Commissioner.

This is an original action seeking a writ prohibiting the Honorable Thomas J. Knight, a judge of the Jefferson Circuit Court, from proceeding further in an action pending in that court and from permitting agents from New York to remove the plaintiff from the jurisdiction of this state pending an appeal from a judgment denying habeas corpus. A temporary writ was entered on August 18, 1961. Motions for a stay of proceedings and for bail pending the appeal were overruled. Motions to reconsider those orders were subsequently filed and have not been disposed of.

The primary case, that is, the appeal from the judgment denying habeas corpus, has been decided today, the judgment being affirmed. See Smithers v. Bindner, Ky., 351 S.W.2d 872. This original action has thereby become moot. Upon that ground the complaint herein is dismissed.


author: MILLIKEN, Judge.

text:
    Robert B. McCREARY, Appellant, v. PEABODY COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.
    J. Leonard Davis, Harlan, for appellant.
    Sampson & Rice, Harlan, for appellees.
   MILLIKEN, Judge.

The sole question on this appeal is whether the employee and claimant, Robert B. McCreary, was given a review of his case by the Full Workmen’s Compensation Board after his motion for such a review. A referee of the Board had written an opinion denying compensation, a conclusion well supported by medical evidence. A cursory Opinion and Order by the Chairman of the Board affirmed the conclusions of the referee saying, "It is the opinion of the Board that the referee has correctly evaluated all of the expert testimony in this case and is correct in his findings that the plaintiff does not have an occupational disease.” And the Executive Secretary of the Board certified “the Opinion and Order of the Full Board appears in Order Book No. 51 and was approved by the Chairman of the Board, William O. Miller, on January 21, 1960, with the Full Board concurring.”

In the light of such a record it is difficult for us to appreciate the basis of the appeal.

The judgment is affirmed.


author: STEWART, Judge.

text:
    DEPARTMENT OF REVENUE ex rel. William E. SCENT, Commissioner of Revenue, Commonwealth of Kentucky, Appellant, v. Smythe J. WILLIAMS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1961.
    William S. Riley, Frankfort, for appellant.
    George M. Catlett, William M. Johnson, Frankfort, for appellee.
   STEWART, Judge.

This is an appeal from the judgment of the Franklin Circuit Court, which declared KRS 186.035 unconstitutional, as violative of Section 59 of the Constitution of Kentucky and of Section 1 of the 14th Amendment to the Constitution of the United States.

Under KRS 418.020 the case was submitted on an agreed statement of facts for determination of the construction and validity of KRS 186.035. Appellee, Smythe J. Williams, purchased a used motor vehicle on March 28, 1961, which was licensed in Franklin County in the name of John Ross. The vehicle was assessed in the name of the latter on March 1, 1961. Appellee will receive no notice of said assessment; however, under KRS 186.035, he will, subsequent to December 31, 1961, be denied the right to register and license the vehicle unless he can prove the ad valorem taxes upon the vehicle have been paid.

KRS 186.035, passed by the 1960 Legislature, reads:

“(1) The county clerk shall not issue a registration receipt for any motor vehicle for any year under the provisions of KRS 186.020 to 186.260 until the owner has presented to the clerk proof of the following:
“(a) Payment of all ad valorem taxes based on the assessment of the motor vehicle as of March 1 of the year preceding the year for which the vehicle is to be licensed; or
“(b) The motor vehicle was not subject to assessment for ad valorem tax on March 1' of the year preceding the year for which the vehicle is to be licensed.
“(2) .The county clerk shall not issue a registration receipt or a transfer of registration for any motor vehicle upon which the state or any other taxing district has filed a notice of lien under the provisions of KRS 134.415 until the tax lien shall have been properly released.” KRS 281.634, the complementary statute, reads:
“The Department of Motor Transportation shall not issue a certificate or permit with respect to any motor vehicles other than those required to be registered by the county clerk for any year until the owner has presented proof of the following:
“(1) Payment of ad valorem tax based on assessment of the motor vehicle as of March 1 of the year preceding the year for which the certificate or permit is to be issued; or
“(2) The motor vehicle was not subject to assessment for ad valorem tax on March. 1 of the year preceding the year for which the certificate or permit is to be issued.”

The trial court found KRS 186.035 was void and of no effect upon the grounds:

1. By. reason of the reference to KRS 281.634, the complementary section to KRS 186.035, a class of motor vehicles including utility trailers, semi-trailers and for-hire wreckers would be excluded from the scope and purpose of KRS 186.035, and thereby escape taxation or otherwise derive undue and unequal advantage in violation of Section 59 of the Constitution of Kentucky and Section 1 of the 14th Amendment to the United States Constitution.

2. In operation and effect it would interfere with and impinge upon the general laws affecting the levy, assessment and collection of ad valorem taxes, thereby giving an indulgence to assessors and collectors of taxes in a manner prohibited by Section 59 of the Constitution of Kentucky, and thus constitute special legislation where general law has been or could be provided and made applicable.

The foregoing two statutes were enacted in an attempt to improve the collection of ad valorem taxes on motor vehicles. They are more properly categorized as revenue statutes than as licensing enactments involving the state’s police power. Somewhat similar legislation (House Bill 346) was enacted in 1954 and declared unconstitutional by this Court in Schoo v. Rose, Ky., 270 S.W.2d 940, 942. The previous Act provided that before a resident could register his vehicle he had to submit evidence he had paid all personal property taxes due from him to all taxing districts. It was applicable only to vehicles required to be registered under KRS 186.020, that is, through the county clerks. There was no provision for motor vehicles licensed through the Department of Motor Transportation, which included carriers of more than nine persons for hire. The question on appeal was whether there was a reasonable basis for a distinction between carriers of a large number of persons and other classes of vehicles. This Court decided there was not, saying:

“From a revenue viewpoint, the only difference between the two groups is that the license tax is paid through different agencies. We do not think this single difference is sufficient to support a classification by which the Act is applicable to one class and inapplicable to the other. For this reason we think the Act is a special law where a general law might have been enacted and is in direct contravention of Section 59 of the Constitution.”

Let us now consider KRS 186.035 as it pertains to vehicles required to be licensed by county clerks. This statute states in part no county clerk shall “issrte a registration receipt” for any vehicle for any year “under the provisions of KRS 186.020 to 186.260 until the owner has presented” proof that the ad valorem tax was paid on that vehicle for the preceding year. Manifestly, this enactment is a spur to taxpayers to pay their ad valorem taxes on motor vehicles promptly.

Turning now to KRS Chapter 186, of which KRS 186.035 is an integral part, it will readily be noted that trailers, semitrailers and house-trailers are registered by the county clerk under the statutory provisions beginning with KRS 186.650, and particularly under KRS 186.655. These three types of carriers which are commonly used in transportation, although not self-propelled, have been defined as “motor vehicles”, which term, under KRS 281.011(2), is stated to include any vehicle “operated as a unit in combination with other vehicles.” See also Department of Motor Transportation v. Trailer Convoys, Ky., 279 S.W.2d 815.

Thus we have three classifications of motor vehicles which are specifically excluded from the operation of KRS 186.035; that is, we have a situation where the owners of a considerable segment of carriers need not exhibit a tax receipt before registering any of the types of vehicles listed under KRS 186.655. The result is that the omission of these carriers from the imposition placed by statute upon all other vehicles within the same class bestows upon the exempted carriers an undue privilege. It follows that KRS 186.035 is a special law where a general one might have been made applicable; and, for this reason, it is invalid because it violates the letter and spirit of paragraph 29 of Section 59 of the Constitution of Kentucky. It is clear this statute runs afoul of Schoo v. Rose, cited above.

The trial court determined that utility trailers, semi-trailers and for-hire wreckers were unaffected by KRS 186.035 upon the ground that they are not embraced within the terms and conditions of KRS 281.634, the complementary provision of law. The words “motor vehicle”, as employed in the latter statute, are specifically defined by KRS 281.011(2) to mean a carrier “used for the transportation of persons or property for hire.” Some of the members of this Court doubt the soundness of this ruling. However, since we are holding KRS 186.-035 unconstitutional because it failed to embrace the three types of motor vehicles above mentioned, we deem it unnecessary to discuss this finding of the trial court.

In the light of our holding, it becomes unnecessary to discuss the second "ground of the judgment. ' '

Wherefore, the judgment is affirmed,


author: PER CURIAM.

text:
    STATE of Texas, Petitioner, v. Don W. WAIR et al., Respondents.
    No. A-8679.
    Supreme Court of Texas.
    Dec. 13, 1961.
    Fisher, McLaughlin & Harrison, Paris, for petitioner.
    Moore & Lipscomb, Paris, for respondents.
   PER CURIAM.

The State brought this condemnation suit for a right-of-way east of Paris, Texas. The only question tried was the amount of damages. The landowner sought a new trial on the ground of jury misconduct. He alleged that the jury used a quotient verdict. The court, after hearing testimony from 4 of the 6 jurors, overruled the motion, thus finding that misconduct did not occur. The Court of Civil Appeals reversed on the grounds that it appeared beyond question and as a matter of law that misconduct did occur; and in the alternative, if there was some evidence to support the trial court’s implied finding of “no misconduct,” then it held that the finding was against the overwhelming weight and preponderance of the evidence. 349 S.W.2d 637. The question is whether this finding of the trial judge should be tested by (1) the great weight and preponderance of the evidence or by (2) abuse of discretion.

The trial court’s refusal to grant a new trial upon an express or implied finding of no occurrence of jury misconduct is ordinarily binding on the reviewing courts and will be reversed only where a clear abuse of discretion is shown. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945); Saladiner v. Polanco, Tex.Civ. App., 160 S.W.2d 531 (1942, error refused) ; Thompson v. Railway Express Agency, Tex.Civ.App., 206 S.W.2d 134 (1947, n. r. e.) ; Martin v. Shell, Tex.Civ. App., 262 S.W.2d 564 (1953, no writ); Morgan v. State, Tex.Civ.App., 343 S.W.2d 738 (1961, ref., n. r. e.). The occurrence of jury misconduct is not properly reviewed by the great weight and preponderance test which was applied by the •Court of Civil Appeals. We hold that the occurrence of jury misconduct was conclusively proved as a matter of law and that the trial court clearly abused its discretion in not granting a new trial. 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, and from such a review we conclude that the respondents probably were injured from the quotient verdict. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944).

The application for writ of error is therefore refused, no reversible error.


author: CULVER, Justice. SMITH, Justice.

text:
    Nora Todd ELLIOTT et vir, Petitioners, v. Edward JOSEPH, Respondent.
    No. A-8416.
    Supreme Court of Texas.
    Oct. 18, 1961.
    Rehearing Denied and Dissenting Opinion Filed Dec. 20, 1961.

      Hardy Hollers, Austin, for petitioner.
    Cofer & Cofer, Dquglass D. Hearne, with above firm, Austin, for respondent.
   CULVER, Justice.

In this suit in the. district court against Nora Todd Elliott and her husband, Roy C. Elliott, Edward Joseph sought a declaratory judgment to determine what amount of rent he is obligated to pay and an injunction to restrain the Elliotts from interfering with his enjoyment of the leasehold estate which he holds upon land owned by them.

In 1946 Joseph and the Elliotts entered into a written contract by the terms of which the Elliotts leased to him a certain tract containing 12.5 acres with the option of extending the lease until March 31, 1966, at the monthly rental now in effect of $166.67. Joseph is now and has been for a number of years operating a drive-in moving picture show on the premises.

In October of 1959 the City of Austin filed proceedings to condemn 3.87 acres of this tract for the purpose of street widening. Joseph contends that under the terms of said lease and the law of the State of Texas, he is entitled to have the'rental apportioned pro tanto and reduced accordingly and tendered the sum of $115 monthly rental. The Elliotts by cross-action asserted that Joseph was obligated to pay the contract rental of $166.67 per month without any proportionate reduction, prayed for judgment for accrued rentals at that rate, and sought rescission of the lease contract by reason of default.

The trial court found that the Elliotts are entitled to recover the full rental agreed to in the contract without any reduction on account of the taking by the City of Austin of the 3.87 acres and entered a take-nothing judgment against Joseph. The Court also denied Elliotts’ claim for rescission of the lease contract.

The Court of Civil Appeals on its own motion held that the same issue presented in this case is to. be determined in the county court in the presently pending condemnation proceedings and ordered this cause abated until final disposition of the condemnation suit, invoking the rule that after the county court has acquired jurisdiction in a condemnation suit no other court is authorized to interfere with its proceedings. One justice dissented (345 S.W.2d 297). All parties applied for writs of error insisting that the rule invoked, by the Court of Civil Appeals is not applicable here. With that contention we agree.

A condemnation suit in the county court is a special proceeding and determines only the issues of the right to condemn and the amount of the damages. The trial in the county court is a de novo appellate proceeding. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788.

‘ The county court has no power to determine the rights of the parties under the lease or to reduce the rent or to'give a' judgment for or against the Elliotts for-the amount of rent claimed by them. It is true that the question of law as-to whether or not-a pro tanto abatement of rent is to be allowed upon a partial taking of the leasehold by condemnation would have a Bearing, upon the apportionment of damages between the landlord and tenant in the condemnation proceeding but that question will not be and cannot be resolved in the condemnation suit. What the county court will determine, so far as the tenant is concerned, is the diminished value of the lease. City of Pasadena v. Porter, 201 Cal. 381, 257 P. 526, 529, 53 A.L.R. 679, holds:

“A proceeding for the condemnation of private property under the Street Opening Act is a special statutory proceeding. The court sitting therein has no equitable jurisdiction, and accordingly, has no power to reform or revise the lease in question, nor to determine to what extent the covenant to pay rent shall be affected, if at all.”

The authorities relied' upon by the majority of the Court of Civil Appeals do not support their conclusion that the same issue is involved in the county court condemnation proceedings and in this suit,.

In Compton v. Texas Southeastern Gas Co., Tex.Civ.App., 315 S.W.2d 345, writ refused n. r. e., plaintiff could not maintain her suit for damages in the district court caused by the laying of. a -pipe .line through her property by the defendant because that was exactly the issue to be determined .in the pending condemnation suit in the county court. Likewise in Pickens v. Hidalgo County Water Control and Improvement District, Tex.Civ.App., 284 S.W.2d 784, no writ history, and in Texas Pipe Line Co. v. Ennis, 127 Tex. 470, 93 S.W.2d 148, the only issue presented was the amount of damages that would be suffered by the landowner as a result of the taking under the power of eminent domain. The county court was empowered to grant full relief for all damages suffered and consequently the landowners could resort to no other forum.

There is here an actual present controversy between the parties. The Elliotts contend in their cross-action that irrfespeetive of any conde&nation pro-ceedings they are entitled to the payment of the contractual rental and asked judgment for the amount due. They also claimed the right to rescind because the rent had not been paid. Joseph on his part contended that he was entitled to a pro tanto abatement of the rent and tendered into court the rent reduced proportionately on an acreage basis. These issues could not be decided elsewhere than in the district court.

The landmark case of Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, is not applicable. In that case one of the parties had filed suit in the district court of Johnson County to cancel certain notes and the deed of trust given to secure the same. The other party had filed suit in the District Court of Dallas County to foreclose under the same deed of trust. The only question involved was the validity of the notes and deed of trust and the right of foreclosure. Both courts had potential jurisdiction. Very naturally it was held that two courts could not at the same time possess the power to make a final determination of the same controversy between the same parties, but that is not the situation we have here. The Court of Civil Appeals erred in ordering that this cause be abated until final disposition of the condemnation suit.

We now come to a consideration of the question of law presented here, namely, when there is a partial taking of a leasehold estate by condemnation and the remaining portion is susceptible of occupation whether or not the contractual monthly rental is to be abated pro tanto for the part taken during the remainder of the time of the lease. Although many courts in other jurisdictions have considered and passed upon this problem and.a number of able text writers have expressed their views, we find that the question has not been decided by the Texas courts. A review of the authorities reveals that a large majority of these decisions'- hold that the rentals are not abated in this situation, but rather the tenant is obligated to continue’the payment of the rentals provided in the lease.'contract and must look to an apportionment of the damages assessed against the condemning authority based on the reduced value of his lease. We are inclined to follow the majority concept.

The general rule is that when the whole of leased premises is taken under eminent domain proceedings, the lease is terminated and the tenant is no longer liable to pay rent. See Annotations 43 A.L.R. at page 1176, 3 A.L.R.2d at page 328. Joseph argues that the same rule should be applied where only a portion of the premises is taken and that there is no reasonable ground to make a distinction between the two classes of cases. A few courts have so held.

In Biddle v. Hussman, 1856, 23 Mo. 597, after condemnation by the City of St. Louis of a part of the premises leased to Hussman, the owner sued the lessee, Hussman, for the rent for the entire premises. The court held that as to the part appropriated to public use the rent was extinguished. The same result was reached in Kingsland v. Clark, 1856, 24 Mo. 24, and likewise in Barclay v. Picker, 38 Mo. 143.

In Board of Levee Commissioners v. Johnson, 1889, 66 Miss. 248, 6 So. 199, the taking of a portion of leased premises under the power of eminent domain was held to operate as an apportionment of rent and dissolved the relation of landlord and tenant pro tanto. Additionally, there are a number of text writers who urge the adoption of the minority rule. Lewis on Eminent Domain, § 438; 3 Tiffany on Real Property, 3rd ed., § 904, pp. 565, 566; 1 Orgel on Valuation Under Eminent Domain, 2nd ed. § 121, p. 522. The converse is to be found in 1 Washburn on Real Estate, 5th ed., ch. 10, § 6, p. 558, where the following statement is made:

“ * * * But the better rule, and the one believed to be adopted in most States, is that such a taking operates, so far as the lessee is concerned, upon his interest as property for which the public are to make him compensation, and does not affect his liability to pay rent for the entire estate according to the tenor of the lease and this extends to ground rent; such taking does not abate any part of the rent due.”

Joseph quotes from 2 Nichols on Eminent Domain, pp. 42, 43, Note 60, the rule as follows:

“Conversely, as the tenant is not entitled to an abatement of his rent if he has been dispossessed by a dis-seizor, or by the public enemy, or if the premises are destroyed or rendered untenantable by earthquake, lightning, floods or fire, he remains liable in the same manner for the full amount of a rent when a portion of the leased premises are taken by eminent domain,”

but urges that the premises laid down in that statement is not the law of abatement in this state. It is the law here that where the estate from which the rent issues ceases to exist the landlord is not entitled to recover rent for the remainder of the period. This was the case in Norman v. Stark Grain & Elevator Co., Tex.Civ.App., 237 S.W. 963, error refused, and Behan v. Ohio, 75 Tex. 87, 12 S.W. 996. In the former case the rented elevator collapsed and was rendered totally unfit for the storage of grain that was the only purpose for-yvhich the elevator could be used by the express terms of the lease. On the other hand the destruction of a building on leased premises by fire or other catastrophe does not relieve the tenant against the obligation to pay rent unless it is so stipulated in the lease. Japhet et al. v. Polemanakos, Tex.Civ.App., 160 S.W. 416, writ dismissed, and see cases therein cited.

The objection raised by the text writers to the majority rule, that the rent is not to be reduced where a part only of the leasehold is taken, is that it works an inconvenience and hardship on the landlord. As said by one writer in 29 Amer.Law Rev. p. 354 (1895):

“It is easy to conceive of instances, where, under this rule, the tenant would receive a very considerable amount of the landlord’s damages in order that he may go through the idle form of repaying it in installments in the shape of rent, and at the same time the landlord will be obliged to look to the solvency and order of the tenant in its repayment.”

The landlord may protect himself by providing for the termination of the rent obligation if the property is condemned. Appeal of Scholl, 292 Pa. 262, 141 A. 44. In some states the statute provides for a proportionate reduction. Matter of Daly, 29 App.Div. 286, 51 N.Y.S. 576; McCardell v. Miller, 22 R.I. 96, 46 A. 184; Hinricks v. City of New Orleans, 50 La.Ann. 1214, 24 So. 224.

Many of the decisions in support of the majority rule take note of the early Missouri and Mississippi cases but refuse to adopt the result there reached.

In City of Chicago v. Garrity, 1880, 7 Ill.App. 474, the matter was first noticed in the State of Illinois. The court there recognized that the decisions of other states were not entirely harmonious, yet after considering the three Missouri cases decided to follow the weight of authority in favor of the principle that the tenant remains liable for the entire rent notwithstanding the condemnation of a portion of the property to public use. Thereafter that jurisdiction has consistently adhered to this position. See Stubbings v. Village of Evanston, 136 Ill. 37, 26 N.E. 577, 11 L.R.A. 839; Corrigan v. City of Chicago, 144 Ill. 537, 33 N.E. 746, 21 L.R.A. 212; Yellow Cab Co. v. Stafford-Smith Co., 320 Ill. 294, 150 N.E. 670, 43 A.L.R. 1173.

Gluck v. City of Baltimore, 1895, 81 Md. 315, 32 A. 515, a condemnation proceeding by the City, held that the taking of a portion of leased land does not operate to abate any portion of the rent reserved, nor will it apportion the rent, and the tenant should be allowed damages for the decreased value of the premises. In that case the court took note of the argument that this rule would or might in many instances, result in loss to the landlord. The answer is given that this is a mere suggestion of a possible hardship, but that' a sound principle ought to be applied without reference to ulterior results. The fact that it may operate in some instances with apparent or even real hardship does not indicate that it is inherently erroneous.

The plaintiff sued for rent due under a lease contract in Olson Land Co. v. Alki Park Co., 1911, 63 Wash. 521, 115 P. 1083. The court upheld the rule that a tenant when part of his leased premises is taken under the power of eminent domain cannot claim an eviction by the landlord nor be released from the payment of rent.

Also F. W. Woolworth Co. v. City of Berlin, 1925, 82 N.H. 153, 130 A. 741, follows the general rule, though taking note of Biddle v. Hussman and Board of Levee Commissioners v. Johnson, supra.

Earlier case holding to the same effect are Parks v. City of Boston, 1838, 15 Pick. 198, 32 Mass. 198; Patterson v. City of Boston, 1838, 20 Pick. 159, 37 Mass. 159; Workman v. Mifflin, 1858, 30 Pa. 362.

In Leonard v. Autocar Sales & Service Co., 392 Ill. 182, 64 N.E.2d 477, 480, 163 A.L.R. 670, writ of certiorari denied 327 U.S. 804, 66 S.Ct. 968, 90 L.Ed. 1029, the entire leased property was taken temporarily by the United States for a definite period of time short of the term of the lease, but even in that situation the lessee was not relieved of liability for rent. The court observed that “When it is remembered that every lease possesses a double aspect, being both a conveyance and a contract, a ready explanation may be found for the view that a lessee may cease to be entitled to the possession yet remain bound by his contractual obligation to pay rent.”

There is also, we think, a practical procedural reason for not adopting the very logical minority rule. Article 3265 bearing on rule of damages on condemnation suits, in Section 1, provides that the ■commissioners shall assess the actual damages that will accrue to the owner. Section 3 provides that where only a portion-■of the real estate is condemned the commissioners shall estimate the injuries sustained and the benefits received by the owner. The term “owner” in this sense includes a lessee for years as well as any ■other person who has an interest in the property. Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 793, 108 A.L.R. 1508. The amount of rent is a factor in determining the damages suffered by the lessee in the taking of a portion of his lease, but it is not the only element. Frankfurt v. Texas Turnpike Authority, Tex.Civ.App., 311 S.W.2d 261, no writ history; State v. Parkey, Tex.Civ.App., 295 S.W.2d 457, wr. ref. n. r. e. The rules applicable to the condemnation of a fee title apply equally to the condemnation of a part ■of a leasehold interest. Brazos River Conservation and Reclamation District v. Adkisson, Tex.Civ.App., 173 S.W.2d 294, writ refused.

Possibly in this case an abatement of the rent pro tanto might work a complete satisfaction of this lessee’s claim for damages, but probably not in all situations.

Although Orgel, supra, concedes that even if the lessee is relieved from his obligation to pay the rentals, where only part of the premises had been taken, the problem of fair apportionment is simplified but by no means solved.

Since under our condemnation procedure all persons having any interest in the subject matter must be made parties in order for the condemning authority to obtain complete title, the adoption of a rule permitting the abatement of rent in the district court would probably tend to hamper and disrupt the statutory condemnation processes and might require under some situations an abatement of the condemnation in the county court until the lessee’s claim of pro tanto abatement could be determined in the district court.

We therefore conclude that while the minority rule makes a logical approach to the solution of this troublesome problem, and while valid reasons may be assigned in support thereof, nevertheless in considering all aspects of the question the majority rule should be followed.

The judgment of the Court of Civil Appeals is therefore reversed and that of the trial court is affirmed.

SMITH, Justice.

The dissenting opinion delivered on October 18, 1961, is withdrawn, and the following substituted therefor:

I respectfully dissent.

The question involved has never been expressly decided in Texas. The Court here seems to attach some weight to what it deems to be the majority rule. It is of no particular significance as to which is the majority rule, and which the minority rule, when the question is an open one in this State. We are not compelled to follow the majority rule which, if followed, will bind the tenant to pay rent on premises after he has been permanently ousted therefrom. Texas should adopt a rule which will be in accord with our Texas decisions on Landlord and Tenant. Where the so-called minority rule is followed, the obligation to pay rent is extinguished pro tanto and the present value of the rent apportioned to the part taken is paid directly to the lessor as in the taking of the whole property. See American Law of Property, Sec. 3.55, p. 291.

In Dyer v. Wightman, 66 Pa. 425, the court placed the ground for the extinguishment of the rent on the theory that equity will not give the award for the value of the rent to the tenant because that would leave the landlord insecure, and hence the equitable thing to do is to give the sum to the landlord and extinguish the tenant’s obligation to pay rent.

Regardless of where equity should lie, it is difficult for me to see why the rule applied on a total taking would not also be applicable to a taking of a part of the premises. By applying the rule to a partial taking, we would have a pro tanto abatement of the rent.

The adoption of this sensible and most equitable rule would not in the least complicate statutory condemnation proceedings in cases where landlord and tenant are involved.

A proceeding for condemnation of private property for public use is a special statutory proceeding. The court sitting in such proceeding has no equitable jurisdiction, and accordingly has no power to reform or revise the Elliott-Joseph lease, nor to determine to what extent the covenant to pay rent shall be affected.

The payment of rentals, of course, is a factor which must be considered in arriving at the fair market value of the lease. See Frankfurt v. Texas Turnpike Authority, Tex.Civ.App., 311 S.W.2d 261. However, the apportionment of the rents is a problem of the law of Landlord and Tenant to be finally adjudicated in separate proceedings in a court of competent jurisdiction.

In 1 Orgel on Valuation Under Eminent Domain, 2nd Ed. Sec. 121, p. 522, it is said:

“Where a contrary ruling is not required by the lease or by statute, it would seem to us far more reasonable to release the lessee from his obligation to continue the rent payments, or partially to reduce it when only a part of the premises has been taken, leaving the remaining part still inhabitable.”

The rule for which I contend has been .adopted in other jurisdictions. However, if it had never been followed in any jurisdiction, I still contend that Texas should refuse to follow the harsh and inequitable rule followed by the so-called majority rule. Many times this Court has, in instances of divided authority, struck out on its own course. Since Texas is to adopt a rule, it would seem that our courts should be inclined to adopt the sensible, simplest, and most equitable rule.

GREENHILL and HAMILTON, JJ., join in this dissent.


author: WOODLEY, Presiding Judge. DICE, Commissioner.

text:
    Marcus Neil SALTER, Appellant, v. STATE of Texas, Appellee.
    No. 33873.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Rehearing Denied Dec. 13, 1961.

      Louis A. Caso, Galveston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 4 years.

The transcript contains no bills of exception.

The statement of facts forwarded to this Court does not bear the approval of counsel for the state or the appellant or his counsel, and has not been approved by the court, hence cannot be considered. Art. 759a, Sec. 1, subd. E, Vernon’s Ann.C.C.P.; Baird v. State, 162 Tex.Cr.R. 589, 288 S.W.2d 67.

The judgment is affirmed.

On Appellant’s Motion for Rehearing

DICE, Commissioner.

In affirming the judgment of conviction on original submission, we did not consider the statement of facts because it did not bear the approval of counsel for the State or the appellant or his counsel and had not been approved by the court.

Appellant, in his motion for rehearing, requests us to reconsider our opinion upon the basis of certain statements in a letter addressed to this Court, by the Clerk of the trial court, in which he accepts “partial responsibility” for the statement of facts being transmitted to this Court without having been approved, as required by Sec. 1, subd. E of Art. 759a, Vernon’s Ann.C.C.P.

It is the duty of counsel for an appellant, to see that a statement of facts not agreed to by counsel for the State and the appellant or his counsel, as provided in said Art. 759a, Sec. 1, subd. E, supra, is presented to the trial judge and to follow it up and see that it is approved and filed in time. When such duty is delegated to others, both the attorney and the appellant are bound by any negligence or laches of their agents. 4 Tex.Jur., par. 309, page 446; Teague v. State, 158 Tex.Cr.R. 83, 253 S.W.2d 276. An appellant is also charged with the same duty. Fleming v. State, 161 Tex.Cr.R. 519, 279 S.W.2d 340. The duty prescribed is not shown to have been discharged by appellant or his counsel in the present case.

The motion for rehearing is overruled.

Opinion approved by the Court.