author: BARROW, Justice.

text:
    Della K. BARRON, Appellant, v. The STATE of Texas, Appellee.
    No. 14249.
    Court of Civil Appeals of Texas. San Antonio.
    April 8, 1964.

      W. Pat Camp, San Antonio, J. G. Horn-berger. Tom N. Goodwin, Laredo, for appellant.
    Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold, Woodrow Curtis, Asst. Attys. Gen., Austin, for appellee.
   BARROW, Justice.

This is a suit for condemnation of the fee of an entire city block of four contiguous blocks owned by appellant, Della K. Barron, in the City of Laredo. The jury awarded appellant $8,100 for the value of the land taken and no severance damages on the other three blocks. The primary question on this appeal relates to the asserted misconduct of the jury foreman, B. B. Stewart.

Appellant asserts that Stewart on the voir dire examination failed to disclose that he was a close personal friend of Dan Ewing, a representative of the State. Appellant further asserts that Stewart was so biased and prejudiced that appellant could not and did not secure a fair and impartial trial. In her third point, appellant asserts that the judgment should be reversed and remanded because of the failure of the trial court to swear the jury panel prior to the voir dire examination.

Rule 327, Texas Rules of Civil Procedure, provides in part that where the ground of the motion for new trial is that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if the erroneous or incorrect answer be material, and if it .reasonably appears from the evidence, both on the hearing of the motion and the trial of the case and from the record as a whole, that injury probably resulted to the complaining party.

Appellant asserts that Stewart failed to respond to the general question asked of the jury panel by State’s attorney, as to whether they knew any of the State’s witnesses, G. T. Gilliland, Dan Ewing or Arthur C. Volz. The voir dire examination was not reported and there is a dispute as to the exact question propounded by the State’s attorney. It is undisputed that while he was asking general questions of the entire panel of about twenty-five persons, he asked if they knew any of the named State’s witnesses. There is a dispute as to whether he asked a second question, or as a part of the original question, if their acquaintanceship would prejudice them from serving as a juror in the case. There was no visible or audible response from any juror and appellant’s attorney testified that he relied upon this silence and did not pursue the matter further. Appellant’s attorney did ask the entire panel if they knew of any reason why they could not be fair and impartial to both sides and no juror responded.

The trial court permitted a very full inquiry on the hearing of the motion, and at its conclusion found that no misconduct had occurred. Stewart testified that he was an intimate friend of Ewing and that they had visited four or five times in the past two or three years. However, he testified that he had no feeling toward either party when selected, and did not respond to the attorney’s general question, as he didn’t believe that his friendship with Ewing would influence his decision in the case. He further testified that he had no recollection that the specific question of whether he knew Ewing was asked. Formal findings of fact were not requested or filed, but at the conclusion of the evidence the trial judge stated that “it seems that the man (Stewart) wasn’t paying attention when the question was propounded. I find that isn’t misconduct.” He further said, “It’s predicated on Stewart, Stewart says he doesn’t recall hearing any question propounded- t.Q the prospective jurors, the' jurors, none of them, * * †.” The judge then stated that he found no misconduct.

General questions to the panel are usually a poor predicate for a later claim of this form "of misconduct. Thompson v. Quarles, Tex.Civ.App., 297 S.W.2d 321. It has been said that jurors are inclined to be diffident about speaking out in answer to any but the most simple collective questions, and may fail to give pertinent information which would be elicited were they asked the same questions individually. McDonald, Texas Civil Practice, 976. Counsel must be certain that all the jurors hear and understand the inquiry.

A very similar situation'was presented in McCarthy Oil & Gas .Corp. v. Cunningham, Tex.Civ.App., 255 S.W.2d 368, where it was asserted a juror failed to "disclose a prior injury on voir dire examination. The" Court said: “The question as to whether misconduct actually occurred is one of fact, and the, judge’s determination of such fact is final. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; Andrews v. Dewberry, Tex.Civ.App., 242 S.W.2d 685, 689. Since the court refused the motion after hearing, he presumably found that no misconduct occurred. Where the court, upon a hearing on jury misconduct based on failure of a juror to answer a question, concludes" that either the question was not asked the jury, or was not heard, he would have to find against the fact of misconduct.” See also: State of Texas v. Wair, 163 Tex. 69, 351 S.W.2d 878; Thompson v. Quarles, supra; Liberty Cab Co. v. Green, Tex.Civ.App., 262 S.W.2d 522; Roy L. Jones Truck Line v. Johnson, Tex.Civ.App., 225 S.W.2d 888.

Furthermore, it cannot be said from an examination of the entire record that appellant has demonstrated that Stewart’s failure to answer the question amounted to such .a denial of her rights as was reasonably calculated to cause, and probably did cau.se the rendition .of. an improper judg-. mqnt in the. cáse. . His. failure is. therefore harmless under. the applicable. test. Rule 434, T.R.C.P.; Childers v. Tex. Emp. Ins. Ass’n., 154 Tex. 88, 273 S.W.2d 587.

Ewing was not a witness. He was not mentioned in the evidence. He testified on the hearing of motion that he was an employee of the State Highway Department, although his position was not shown. Mr. Volz was identified as the Senior Resident Engineer in charge of the Laredo office of the Highway Department. There is no assertion that Ewing had any contact with Stewart for any purpose during the trial,, or at any time concerning the property in question. Probable harm is not shown by the sole fact that Ewing and Stewart are close friends.

-Appellant asserts, under her second point, that Stewart was a biased and prejudiced juror. In support thereof she urges that one juror testified that Stewart voted to go along with the amount of damages as given by the State’s appraiser, and further said that appellant was not entitled to any severance damages. Other jurors refuted this testimony and testified they had no recollection of Stewart’s position. Appellants witness testified that the value of the block taken was from $15,000 to $16,000, and that the severance damages would be about 25% of the total value of the three blocks. It is not asserted that there was any misconduct in the jury deliberations, and it is seen that the jury, after about three hours deliberation, all agreed upon a sum $1,200 over that testified to by the State’s appraiser. No point is presented that any finding of the jury is not supported by evidence, or is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust. The trial court did not abuse its discretion in impliedly finding that Stewart was not a biased or prejudiced juror. Swap Shop v. Fortune, Tex., 365 S.W.2d. 151.

The error shown by the failure to swear the jury panel prior to the voir dire examination as required by Rule 226, T.R.C.P., was waived by appellant’s failure to timely complain of same. Clements v. Crawford, 42 Tex. 601; Strickland v. City of Friona, Tex.Civ.App., 294 S.W.2d 254. Furthermore, this error was not assigned in the motion for new trial, as required by Rule 374, T.R.C.P., and is therefore considered as waived.

The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    ATLAS BRADFORD COMPANY et al. Appellants, v. TUBOSCOPE COMPANY, Appellee.
    No. 4093.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1964.
    Rehearing Denied April 30, 1964.

      Dyche, Wheat, Thornton & Wright, Thomas H. Weed, James T. Wright, Browning, Simms, Hyer & Eickenroht, W. F. Hyer, Fulbright, Crooker, Freeman, Bates & Jaworski, Chester Fulton, Houston, for appellants.
    Butler, Binion, Rice & Cook, John Mc-Conn, Jr., Fletcher H. Etheridge, Houston, for appellee.
   McDONALD, Chief Justice.

This is a “trade secret” case. Tuboscope brought suit against Julian Unger, a former employee, to enjoin him from disclosing to others trade secrets of Tuboscope, embodied in its electromagnetic pipe inspection device, known as the “Sonoscope.” Atlas Bradford Company was later joined as a defendant, it being alleged that Atlas received from Unger, and used, the trade secrets Unger was disclosing.

Defendants Unger and Atlas contended (among other things) that Tuboscope’s alleged trade secrets were subjects of patents, issued to Tuboscope by the United States Patent Office, and for such reason, had ceased to be trade secrets and ceased to be entitled to the protection of the law as trade secrets.

Trial was to a jury. The jury found, and/or, it is undisputed, that:

1) Unger learned of Tuboscope’s “trade secrets,” here involved, during his employment by Tuboscope from 1950 to 1956.
2) On March 26, 1953, and during his employment by Tuboscope, Unger contracted with Tuboscope whereby he “agrees and binds himself not to reveal to others * * * confidential information with reference to employer’s work, processes, equipment, tools, machinery, devices, methods, inventions, or improvements, whether patented or not * *
3) During the period August 1953 to March 1959 patents were issued to Tubo-scope, in which each of the “trade secrets” involved herein, were disclosed, made non-secret, and given the protection of a patent.
4) On or after April 4, 1959 Unger disclosed to Atlas, the “trade secrets”, and (which had already been patented).

The Trial Court rendered judgment for Tuboscope: 1) permanently enjoining the use and disclosure of the “trade secrets” here involved, by Unger; 2) permanently enjoining the use and disclosure of the “trade secrets” here involved by Atlas; 3) and rendered judgment for damages in the amount of $20,000 against Atlas.

Unger and Atlas appeal, both contending that a “patented matter” cannot be a “trade secret”, and that the Trial Court erred in not holding, as a matter of law, that when the patents were issued, the “trade secrets” ceased to be “trade secrets,” and ceased to be entitled to protection of law as such.

A “trade secret” entitled to protection by injunction may consist of any formula, pattern, device or compilation of information used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it, and generally relates to the production of goods, though it may be a formula or a pattern.

When the owner of a “trade secret” secures a patent on an invention embodying the trade secret, he makes full disclosure of his secret, in exchange for a time limited monopoly afforded by the patent. The “trade secret” is no longer a “secret after the issuance of the patent, and is no longer entitled to the protection of the law of trade secrets. The owner of the patent does have the protection of the patent laws for a limited number of years.

Nevertheless where one, as a result of a confidential relationship gains knowledge of the “trade secret” of another, prior to its being patented, and while it is still a “trade secret”; and after the matter has been patented, uses or discloses the information, our courts deny him resort to the patent on the theory that a person’s wrongful acts may deprive him of the right which he would otherwise have as a member of the public. Luccous v. J. C. Kinley Co., Tex., 376 S.W.2d 336; Hyde Corp. v. Huffines, 1S8 Tex. 566, 314 S.W.2d 763; K & G Oil Tool & Service v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782.

In the instant case the record discloses that the defendant Unger learned of Tubo-scope’s “trade secrets” while he was in its employment from 1950 to 1956, and during which time he made an agreement never to reveal any of Tuboscope’s devices, methods, and inventions.

During the period August 1953 to March 1959, patents were issued to Tuboscope, in which the “trade secrets” were disclosed to the public in return for the protection of the Federal patent laws.

On or after April 1959 Unger disclosed to Atlas that which he had learned confidentially as a “trade secret”, but which had been made public, by patent, prior to Un-ger’s disclosures.

The public disclosure of the patents makes the information public, insofar as Atlas is concerned. Luccous v. Kinley, supra. And Atlas is entitled to use the information free of restraint on the ground that the information constituted a “trade secret”.

Since Unger received the information while it was still a “trade secret” and disclosed same in what amounts to an abuse of confidence, (as well as his own agreement not to do so), Tuboscope is entitled to the relief granted as to him. See the Luccous, Hyde, and K & G Tool Service cases, supra.

The judgment of the Trial Court is reversed and rendered as to the injunction and money recovery against Atlas; and affirmed as to the injunction against Unger. Costs of appeal are adjudged one-half against Tuboscope, and one-half against Unger.

Reversed and rendered in part. Affirmed in part.


author: HUGHES, Justice.

text:
    Chester R. MORRIS, Appellant, v. Joseph R. SMILEY et al., Appellees.
    No. 11165.
    Court of Civil Appeals of Texas. Austin.
    April 8, 1964.
    Rehearing Denied April 29, 1964.

      Chester R. Morris, pro se.
    Waggoner Carr, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for appellees.
   HUGHES, Justice.

Chester R. Morris, appellant, sued Joseph R. Smiley, President of the University of Texas, Arno Nowotny, Dean of Student Life at the University of Texas, and Pat Bailey, Assistant Attorney General of the State of Texas, appellees, in which he sought issuance of a writ of mandamus requiring appellees to produce and permit inspection, copying and photographing of certain records maintained by the University of Texas relating to appellant.

Appellees filed an answer consisting of special exceptions and a general denial. This answer was subject to an unsworn plea in abatement which pleaded that this was a suit brought against the State without its consent and that appellant had not' exhausted his legal remedies. These remedies were alleged to be a discovery suit then pending in this Court, being our Cause No. 11,109, and a discovery action pending in the 73rd Judicial District Court of Bexar County, being cause No. F-150,-020.

The Trial Court sustained this plea in abatement and dismissed appellant’s suit.

We judicially know that appellant’s discovery action in this Court resulted in failure. Morris v. Smiley, Tex.Civ.App., 368 S.W.2d 640, writ ref., n. r. e. Tex., 370 S.W.2d 451, cert. denied Morris v. Hoerster, 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 614.

We do not know the decision, if any, reached in the Bexar County suit, but we do know that such action has been “continued” at the instance of appellees.

It is true that mandamus will not lie where relator has another plain, effective and adequate remedy to obtain the relief sought. Appellees do not suggest any remedy which appellant may have to obtain a look at these records. He has tried discovery. This remedy has not been plain. Certainly, it has not been effective. One Trial Court has “continued” his action for discovery. Another Trial Court has refused his application for discovery. This Court has held he cannot appeal from such refusal. This ruling has been approved by the Texas Supreme Court and the United States Supreme Court has declined to review such ruling. The Texas Supreme Court has tentatively advised appellant that relief by way of mandamus in the discovery suit is not available to him in that Court. 370 S.W.2d 451.

No further proof is needed that discovery is not a plain and effective remedy. When Trial Courts refuse discovery, as here, there apparently is no remedy of discovery available prior to final judgment. Since appellees do not suggest any other remedy which appellant has in the premises, we hold, under this record, there is none.

This is not a suit against the State. A suit against a state official to compel the performance of a ministerial act is not a suit against the State. Laidlaw Bros. v. Marrs, 114 Tex. 561, 273 S.W. 789. The acts which appellant seeks performance of are clearly and purely ministerial acts. No discretion of any kind in their performance is involved. Mandamus is the proper remedy. 45 Am.Jur. p. 434, Tobin v. Knaggs, 107 S.W.2d 677, San Antonio Civ.App., writ ref.

We hold that appellees’ plea in abatement should not have'been sustained and that it was error to dismiss this suit.

Appellant filed a motion for summary judgment, which motion the Court denied. In such motion appellant stated, under oath, that he went to the University of Texas Health Building and requested to see his health records. This request was denied. That a similar request was made of Dr. Paul White who denied the request. Appellant also stated that he called on Dean Nowotny and requested permission to inspect such records as he had pertaining to appellant. Some such records were shown appellant. Appellant had heard rumors that the file shown him was not complete.

Appellant made Mr. Bailey a party to this suit because Dean Nowotny testified, according to appellant, that. Mr. Bailey had the records pertaining to appellant which had been previously shown him by the Dean.

This motion shows no cause of action against Mr. Bailey and the dismissal as to him is correct. If Mr. Bailey has the records mentioned, they arc presumably held as attorney for Dean Nowotny. Mr. Bailey undoubtedly will comply with any order regarding such records which may be made.

There are two questions remaining to be determined. Are the records sought to be inspected and copied public records ? Who is the legal custodian of such records?

“A public record has been defined as a written memorial made by a public officer, and as a record of an officer made in the discharge of his official duties by doing an act he is empowered by law to do.” 49 Tex.Jur.2d p. 326. See Dallas Coffee & Tea Co. v. Williams, 45 S.W.2d 724, Dallas Civ.App., writ dism.

A more comprehensive definition is given in 45 Am.Jur., p. 420, which we quote:

“It is said that a public record is one required by law to be kept, or necessary to be kept, in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done. In all instances where by law or regulattion a document is filed in a public office and required to be kept there, it is of a public nature, but this is not quite inclusive of all that may properly be considered public records. For whenever a written record of the transactions of a public officer in his office is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep that memorial whether expressly required so to do or not; and when kept it becomes a public document which belongs to the office rather than to the officer. What is a public record is a question of law.”

We are not cited to any statute or rule of the University of Texas requiring the keeping of records by an officer or employee.

We direct attention to Art. 259, Vernon’s Ann.Civ.St., which provides in part, that the “librarian of the University of Texas, and the archivist of the Department of History of said University are hereby authorized to make certified copies of all public records in the custody of the University * *

We also direct attention to Art. 3731a,. V.A.C.S., regarding the admissibility in evidence of copies of records “ * * * made-by an officer of this State or of any governmental subdivision thereof, or by his-deputy, or person or employee under his-supervision, in the performance of the functions of his office and employment * *

We do not find the motion for summary-judgment to be conclusive in establishing-that the records sought to be inspected and copied are public records or, if so, who is. the legal custodian of them.

If the records which appellant desires to inspect and 'copy come within the-' definitions of public records contained in-, this opinion, then appellant is entitled to inspect and copy them and the lawful custodian of those records is under a legal', duty to comply with all reasonable requests to this end.

We overrule appellant’s motion to-bar the Attorney General from representing all appellees in this case. See our opinion in Morris v. Hoerster, Tex.Civ.App., 377 S.W.2d 841.

We affirm the judgment of the Trial'. Court in dismissing Mr. Bailey, otherwise the cause is reversed and remanded.

Affirmed in part and reversed and remanded in part.

      . See Ch. 1, Tide 49, V.A.C.S. It is interesting to note that respecting the University of Houston it is provided that “[f]ull, accurate and complete minutes of the Board of Regents shall be kept or maintained, which shall be open to inspection by the public at the University during regular business hours.” Art. 2615g, V.A.C.S.


text:
    Waunitta J. GRIFFITH et vir, Appellants, v. Jimmy Don HUDSPETH, Appellee.
    No. 14244.
    Court of Civil Appeals of Texas. San Antonio.
    April 1, 1964.
    Rehearing Denied April 29, 1964.
    Hobart Huson, Jr., San Antonio, for appellants.
    Moursund, Ball & Bergstrom, San Antonio, for appellee.
   BARROW, Justice.

This suit was brought by appellants, Waunitta J. Griffith and her husband, Harold M. Griffith, to recover damages incurred in a collision between an automobile operated by Mrs. Griffith and one operated by Jimmy Don Hudspeth. The jury found primary negligence and damage issues favorable to appellants, but found that Mrs. Griffith failed to keep a proper lookout on the occasion in question and that this failure was a proximate cause of the collision.. Appellants appeal from the take-nothing judgment entered on the jury verdict.

Appellants urge- that there is no evidence to support the findings of contributory negligence of improper lookout or proximate 'cause. In the alternative, appellants urge that these findings are each so against the overwhelming preponderance of the evidence as to be clearly unjust, These-points require a review of the evidence under the tests applicable to “no evidence” and “insufficient evidence” points. See “No Evidence” and “Insufficient Evidence” Points of Error, Calvert, 38 Texas Law Review 361. •

This collision, although not a true inter-sectional accident, occurred in the City of San Antonio where Franklin Street joins the Austin Highway in a “T” intersection. It was assumed that the Austin ILighway runs east'and west for several hundred feet on either side of this intersection. There are two paved lanes and a paved shoulder for both east and west bound traffic, which are separated by an 18" island in the middle of the highway. Franklin Street "enters the Austin Highway from the ■ north and there is about a fifty-foot break in-the center divider to permit Franklin Street traffic to turn to the east on entering Austin Highway. Rittiman Road intersects the Austin Highway ■ about 500 feet east of Franklin Street, and traffic is controlled there by a traffic light. Several business establishments are located on the north frontage of the Austin Highway east of Franklin Street.

This collision occurred about 5:45 p.m. on December 8, 1961, at a time when the weather was very foggy and misty. The pavement was damp, but despite the murky conditions, visibility existed to points at least 500' to the east from the scene of the collision. There were no street lights, but the headlights, on both vehicles, were burning at the time of the collision. Just prior to the collision Mrs. Griffith and her husband, had driven from Rittiman Road onto-the Austin Highway and then west to a radio shop located on the north side of the Highway, about 10T east of Franklin Street. Mr. Griffith-got out of the car and Mrs. Griffith proceeded alone. She drove onto the Austin Highway and angled across same in a southwesterly direction at a slow rate of speed, for a distance of 124'. She intended ,to make a “U” turn at the Franklin Street break in the highway divider and proceed east to Rittiman Road. She was unable to turn back to the east because of oncoming eastbound traffic, and therefore stopped her c.ar partly in the westbound lane in which Mr. Hudspeth was proceeding and the collision occurred.

It was disputed as to how long Mrs. Griffith had been stopped before the collision occurred. She said that she had been ■ stopped from thirty to sixty seconds. Mr. Griffith said at least thirty seconds. Mr. Hudspeth, on the other hand, testified to facts from which the jury could infer she stopped immediately prior to the collision. Mr. Hudspeth said that he first noticed her car pulling onto the Austin Highway at an angle when it was about 150a from him, and that he assumed she was proceeding west. When he was about 25A from her car, she turned to the left across his lane and stopped. He applied his brakes, as soon as she started across in front of him,'but was unable to stop before hitting her car.

Appellants urge that there is not sufficient evidence to support the jury’s findings of improper lookout, because the .only testimony came from Mrs. Griffith, who stated she did look. She testified that she looked before starting onto the highway, while angling across, and after she stopped. She denied that she ever saw appellee’s car before the collision. The physical facts demonstrate that there was nothing to prevent her from seeing his car at all times within at least 500' from the point of impact. Appellee was proceeding at 35 m.p.h., or 52.8 feet per second.

It is a -settled rule that proper lookout is ordinarily a question for the jury. Texas & P. R. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332. It was said by the Supreme Court in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273:

“In a case of this character, standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence.”

The facts in this case present a situation wery similar to that in Jones v. Downey, Tex.Civ.App., 359 S.W.2d 116, where Jones was struck from the rear when he stopped prior to making a left turn. This Court field that Jones was under a duty to keep a lookout to the rear under the rule which requires a motorist traveling upon a highway, who is preparing to stop, slow down, ■or change directions, to keep a proper lookout for traffic to the rear. It was there said: “He (Jones) was under no compulsion to stop, he could have continued in the direction in which he was going and avoided being struck in the rear, if he had kept a proper lookout to his rear.” See also Scott v. McElroy, 361 S.W.2d 432; Womacks v. Horne, Tex.Civ.App., 300 S.W.2d 765.

The jury findings of improper lookout and proximate cause are supported by evidence. It is further our opinion, after reviewing all the evidence, that these findings are not so against the great weight of the evidence as to be manifestly unjust. Appellants’ first point is overruled.

Appellants filed a motion for new trial in which they asserted that the jury was guilty of misconduct in that they discussed, considered, and were influenced by arguments, suggestions and extraneous observations made by some of the jurors which were not within the realm of the evidence. Affidavits from five of the jurors were attached to the motion for new trial. The trial court sustained appellee’s motion to strike the allegation of misconduct because same did not allege an act of jury misconduct and refused to hear testimony from any of the eight jurors who had been subpoenaed.

It is settled that Rule 327, Texas Rules of Civil Procedure, justifies no shotgun allegation as a basis for hailing jurors back to court and subjecting them to a searching inquisition in an effort to uncover suspected misconduct. McDonald, Texas Civil Practice, § 18.13. Therefore, unless the motion for new trial raises an issue of jury misconduct and the motion is supported by affidavit, or a reasonable excuse given for failure to do so, the trial court in its sound discretion may decline to hear testimony in support of the motion. Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644; Zamora v. Zamora, Tex.Civ.App., 260 S.W.2d 604, wr. ref.

Appellants assert that the five affidavits raise two points: (1) During the discussion on the lookout issue, a juror stated that Mrs. Griffith did not keep a proper lookout because she never saw Hudspeth after she stopped; and (2) the jury discussed that she was in a precarious position. It is our opinion that these two matters do not constitute jury misconduct. Both of them were properly before the jury from the evidence. Mrs. Griffith admitted that she never saw Hudspeth before the collision. The issue inquired as to her lookout “on the occasion in question” which certainly included the time immediately before the collision. There were pictures of the scene in addition to the testimony of all witnesses that Mrs. Griffith was stopped partly in Hudspeth’s lane of traffic preparatory to making a “U” turn. The jury could properly discuss these physical facts and conclude she was in a precarious position.

It is fundamental that the mental processes and motives of the jurors may not be probed. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493; Trousdale v. Texas & N. O. Ry. Co., Tex.Civ.App., 264 S.W.2d 489, aff. 154 Tex. 231, 276 S.W.2d 242; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259. Erroneous logic is not misconduct. Juror’s deductions, inferences from the evidence, and reasoning, though faulty, illogical, arbitrary or bizarre, do not constitute misconduct. Trousdale v. Texas & N. O. Ry. Co., supra; Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483, 156 A.L.R. 1028. See also Pope, The Mental Operations of Jurors, 40 Texas Law Review 849.

The affidavits filed in this cause do not show any overt acts of misconduct and the trial court therefore did not abuse its discretion in refusing to hear testimony in support of the motion for new trial. Zamora v. Zamora, supra; General Acc. Fire & Life Assur. Corp. v. Murphy, Tex.Civ.App., 339 S.W.2d 392.

The judgment is affirmed.

      . Summary of affidavits relating to discussion of Mrs. Griffith’s lookout:
      Juror Don A. Beere — A juror “suggested that Mrs. Griffith was not keeiiing a proper lookout because there was no evidence that she had ever seen Mr. Hudspeth after she had stopped in the middle of the highway.” Further, there were other suggestions made, such as that she should not have been making a turn or driven where she did.
      Juror Ansloxno Garcia — He did not understand tlie charge, but thought Mrs. Griffith did not do anything wrong in driving her car.
      Juror Herbert I. Hoffman — A juror suggested that Mrs. Griffith was not keeping a proper lookout because there was no evidence that she had ever seen Mr. Hudspeth after she had stopped in the middle of the highway. He considered the position of her car in Hudspeth’s traffic lane required lier to see him approaching although there was nothing she could do to evade.
      Jury Foreman, Tom I. Mock- — Following the initial vote on lookout, which was G-6, the jury had considerable discussion as to the different factors affecting her lookout, such as the route she had taken, her attempting to make a “U” turn on a busy highway, and her placing herself, when stopped, in a precarious position on the wet highway.
      Juror Norman X. Turner — One of the jurors raised the proposition that Mrs. Griffith, due to her precarious position in being stopped where she was, should have looked to her left as well as to the rig-lit. There was also discussion concerning the “U” turn.
      Several jurors, in their affidavits, said they believed she was stopped for ten to fifteen seconds before the collision.


author: DUNAGAN, Chief Justice.

text:
    Essie Mae WILSON et al., Appellants, v. Versie Lee WILSON et al., Appellees.
    No. 34.
    Court of Civil Appeals of Texas. Tyler.
    March 19, 1964.
    Rehearing Granted April 16, 1964.

      John H. Holloway, Jesse Shivers, Isken, Gathright & Shivers, Houston, for appellants.
    R. E. Biggs, Liberty, for appellees.
   DUNAGAN, Chief Justice.

Respondent, Versie Lee Wilson, instituted suit on April 23, 1963, individually and as next friend of her minor daughter, Evelyn Joyce Wilson (appellees in this court), against petitioners, Essie Mae Wilson and Willie Louis Wilson (appellants), to declare heirship of LeRoy Wilson in the County Court of Shelby County, Texas, because of conflicting claims for death benefits of LeRoy Wilson through the Industrial Commission of Arizona, as his surviving wife.

The appellants were each served with citation but did not answer or make any appearance, either in person or by an attorney. • At the time and place set by the ■court, the case was called for hearing. The court heard evidence and rendered judgment declaring that the petitioner, Versie Lee Wilson, was the legal wife of LeRoy Wilson at the time of the death of the said LeRoy Wilson and that Evelyn Joyce Wilson is the only child of said LeRoy Wilson. The appellants filed their petition for writ of error in the County Court of Shelby County, Texas, as provided for in Article 2249a, Vernon’s Ann.Rev. Civ.St.Tex., and perfected their appeal to this court Dy the timely filing of their appeal bond in accordance with Rule 361, Texas Rules of Civil Procedure.

The appellants contend that this action was brought under Article 2524-1 of the Vernon’s Ann.Revised Civil Statutes of Texas (the Uniform Declaratory Judgments Act) and that citations were not served upon them in accordance with Rule JL01, Texas Rules of Civil Procedure, and by the way of assignment of error No. 1, they complain that the default judgment is void because of defective citation upon petitioners requiring answer be made at a time other than specifically stated and provided by Rule 101, Texas Rules of Civil Procedure, the requirements of said Rule being mandatory, said judgment being taken “premature” and being void or erroneous as a matter of law.

Appellees contend that this action was brought under Sections 48 and 49 of the Probate Code of the State of Texas, V.A. T.S., and that process of service in this case was in compliance with Sections 50 and 33(f) (1) of the Probate Code of the State of Texas.

Appellees, in their petition to declare heirship, state in paragraph 6 of said petition:

“Your petitioner further represents that this court has jurisdiction to hear and determine the issue submitted herein under Article 2524-1 of the Revised Civil Statutes of Texas.”

It is apparent from this allegation that appellees brought this action under Article 2524-1 of the Revised Civil Statutes of Texas. Furthermore, upon the hearing of this case, appellees’ attorney stated to the court:

“ * * * This action is brought under the statute which provides for the declaration of heirship and also under Article 2524-1 of the Revised Civil Statutes of Texas * *

Citation was issued to Willie Wilson commanding him to appear before the Plonorable County Court of Shelby County, Texas, at the courthouse of said county in Center, Texas, by filing a written answer to plaintiffs’ petition filed in said court on the 23rd day of April, A.D., 1963, numbered 1588 on the docket of said court, and styled, Versie Lee Wilson, et al. v. Essie Mae Wilson, et al., defendants. This citation was issued April 23, 1963.

The citation to Essie Mae Wilson commanding her to appear at the courthouse of said county in Center, Texas, by filing a written answer at or before 2:00 P.M., Friday, May 10, 1963, in Cause No. 1588 on the docket of said court, and styled, Versie Lee Wilson, et al., plaintiffs, v. Essie Mae Wilson, et al., defendants, and this citation was also issued on April 23, 1963.

Each of the above citations was served on the respective parties at 2:45 o’clock P.M., May 6, 1963.

If this action was brought in the lower court under Article 2524, which we think it was, appellants’ assignment of error No. 1 should, be sustained.

This case proceeded to trial on the 17th day of May, A.D., 1963, and judgment rendered on the same day. It is apparent on the face of the record that service was not had upon the appellants in accordance with the provision of Rule 101, T.R.C.P., that “The citation shall be styled ‘The State of Texas’ and shall be directed to the defendant and shall command him to appear by filing a written answer to the plaintiff’s petition at or before 10 o’clock a.m. of the Monday next after the expiration of 20 days after the date of service thereof, stating the place of holding the court. * * * ”

A judgment by default without proper service of citation is void. On a direct attack, such as this, the usual presumption of service because of the recital in the judgment that “defendants though duly and legally cited failed to appear or answer in their behalf, but wholly made default,” does not obtain, and the error resulting from the absence in the record of the necessary showing necessitates a reversal of the judgment. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934.

It is well to note just here that our courts have uniformly held that a trial court acquires no jurisdiction of the person of a defendant in a civil suit so as to warrant the entry of a default judgment against him until a proper time after he has been duly served with citation containing all the requisites set out in Rule 101, T.R.C.P.; or until a party has in some manner waived such process. Rule 124, T.R.C.P.; Zimmerman v. First National Bank of Bowie, Tex.Civ.App., 235 S.W.2d 720.

Rules relating to service of process are mandatory and a default judgment based upon citation and service not complying therewith, is void, if the defect is apparent on the face of the record. Lamesa Rural High School District et al. v. Speck, Tex.Civ.App., 253 S.W.2d 315.

Assuming that the appellees are correct in their contention made in this court that this action was brought under Sections 48 and 49 of the Probate Code of the State of Texas, the judgment would have to be reversed because appellees did not comply with the requirement of Section 49 of the Probate Code that “Such petition shall be supported by the affidavit of each petitioner to the effect that, in so far as is known to such petitioner, all the allegations of such petition are true in substance and in fact and that no such material fact or circumstance has, within the affiant’s knowledge, been omitted from such petition.” The affidavit required to be made and attached to the petition is a matter of substance—an essential part of the application'—so much so that the court acquires no jurisdiction without it. The statute is mandatory, and the court acquired no jurisdiction of the cause, because the petition was fatally defective for want of proper verification. Johnson v. Mooney et al., Tex.Civ.App., 241 S.W. 308; Warne et al. v. Jackson et al., Tex.Civ.App., 273 S.W. 315; Texas Employers’ Insurance Association v. Nelson et al., Tex.Civ.App., 292 S.W. 651; Barnard v. Kuldell, Tex.Civ.App., 349 S.W.2d 313.

In view of our conclusions herein reached, other points of error presented by appellants become immaterial.

For the reasons above given, the judgment is reversed and the cause remanded to the trial court.

ON MOTION FOR REHEARING

Appellants have filed their motion for rehearing in which they contend that the court erred in reversing and remanding instead of dismissing on the basis that the County Court of Shelby County did not have jurisdiction of this cause of action. We sustain this contention.

Versie Lee Wilson, the petitioner in the County Court, alleges in her petition that LeRoy Wilson was her husband and the father of her daughter, Evelyn Joyce Wilson, and that he was killed in the State of Arizona in the course of his employment in 1962; that petitioner, Versie Lee Wilson, filed, or caused to be filed, a claim as the surviving spouse of LeRoy Wilson for herself and child with the Industrial Commission of Arizona.

Petitioner, Versie Lee Wilson, further alleges that a woman who represented herself to be Essie Mae Anderson, or Essie Mae Henderson, or Bessie Mae Wilson, appeared and claimed to be the surviving spouse of the said LeRoy Wilson and thereafter filed, or caused to be filed, a claim as the surviving spouse of LeRoy Wilson with the Industrial Commission of Arizona for herself and alleged son, Willie Wilson. Petitioner, in paragraph 4 of said petition, makes the following allegation:

“Your petitioner further represents that, since two claims have been filed by different women claiming to be the surviving spouse of LeRoy Wilson with the Industrial Commission of Arizona, it is necessary to have a Court of Competent jurisdiction in Texas, the State of the residence of the parties, to declare by judgment, which of the two claimants is or was the legal wife of the said LeRoy Wilson at the time of the death of the said LeRoy Wilson, so that it can safely pay the person entitled thereto the benefits provided by the Arizona law.”

Section 1, Article 2524-1, V.A.C.S. (Uniform Declaratory Judgment Act) provides that:

“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * * and such declarations shall have the force and effect of a final judgment or decree.”

It will- be thus seen that a petition must show that the cause of action is within the jurisdiction of the court, before the court shall enter a decree affecting the rights of the parties. Manifestly, appellees’ petition makes no such jurisdictional allegation.

Original jurisdiction is conferred upon the county courts of this state by Section 16, of Article 5, of the State Constitution, Vernon’s Ann.St. It provides that the county court shall have exclusive original jurisdiction in all civil cases where the matter in controversy is over $200.00 but not in excess of $500.00, exclusive of interest; concurrent jurisdiction with the district court when the matter in controversy is $500.00 and not over $1,000.00, exclusive of interest; the general jurisdiction of a probate court.

A suit for declaratory relief must be brought in a court of record, and that court must, by virtue of the general statutory and constitutional provisions relating to jurisdiction, have jurisdiction of the subject matter of controversy. 19 Tex. Jur. (2d) p. 162, Sec. 23; Lincoln et al. v. Harvey et al., Tex.Civ.App., 191 S.W.2d 764.

The allegations in the petition, having demonstrated that it does not involve a matter in probate, and the failure therein to disclose the amount in controversy, renders the petition insufficient to confer jurisdiction upon the county court of Shelby County.

Even though there is an actual, real, bona fide, and justiciable controversy between the parties, the cause of action must be brought in a court of competent jurisdiction.

The judgment heretofore entered reversing and remanding judgment is withdrawn and the judgment is hereby reversed and the cause dismissed for the reasons herein stated.


author: CULLEN, Commissioner.,

text:
    KOOLVENT ALUMINUM AWNING COMPANY, a corporation, et al., Appellants, v. Ruby Mae CRIM et al., Appellees.
    Court of Appeals of Kentucky.
    April 17, 1964.
    Rehearing Denied June 26, 1964.
    William G. Reed, Carrollton, for appellants.
    Eugene Cox, Madison, Ind., Gene Sims, Louisville, Harrod & Harrod, New Castle, John C. Breckinridge, Atty. Gen., Maye Briscoe Burns, Dept, of Revenue, Frankfort, for appellees.
   CULLEN, Commissioner.,

Koolvent Aluminum Awning Company had a mechanic’s lien for $700 against a filling station property owned by Mr. and Mrs. George Hereford. In an action to enforce the lien the property was ordered sold, subject to a mortgage and some tax liens and R. H. Knopp, president of Kool-vent, bought the property for $25 above the amount due on the mechanic’s lien. Subsequently an action was brought by other creditors of the Herefords (who had not been made parties in Koolvent’s action) to enforce various lien claims. Judgment was entered in that action upholding a mechanic’s lien of Nathan Lichlyter for $1,-605.71, and an execution lien of King Enterprises, Inc., for $5000. Koolvent and Knopp have undertaken to appeal as a matter of right from that judgment.

The largest amount that could be in controversy as to the appellant Koolvent is the amount of its original lien (plus interest and costs) which would be something in excess of $700. This is far below the jurisdictional amount for an appeal as a matter of right.

The appellant Knopp bought this property at the sale in enforcement of the Koolvent lien. Therefore, as to him, the amount in controversy is the amount of the Lichlyter and King Enterprises liens, if the property has value to that amount over and above the amount of the other liens subject to which Knopp bought the property. There is a mortgage lien for $5000 plus interest from July 1959. There is a state tax lien for $744.59 plus interest from July 1959. Also, there is a county tax lien for an unstated amount. The judgment in this action, when construed in connection with the pleadings, does not show what, if any, value the property has in excess of the amount of the latter three liens. If it has no value in excess of the amount of those liens, the question of the validity of the Lichlyter and King Enterprises liens is academic. If it does have value in excess of the amount of those liens, the value would have to be as much as $2,500 in order to warrant an appeal as a matter of right. Since the value is not shown the appeal must fail.

The appeal is dismissed.


author: W. R. KNUCKLES, Special Commissioner. MONTGOMERY, Judge

text:
    Ronald BOWLING et al., Appellants, v. David L. BRUNK, Jr., Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Rehearing Denied May 8, 1964.
    Ware & Ware, James C. Ware, James A. Nolan; Covington, for appellants.
    Blakely, Moore & O’Hara, John J. O’Hara, Covington, for appellee.
   W. R. KNUCKLES, Special Commissioner.

This action to recover damages for personal injuries, as well as damages to ap-pellee’s automobile, sustained in an auto-truck collision was instituted by the ap-pellee, David L. Brunk, Jr., owner of the automobile. The appellee claimed $5,685.00 for pain, loss of wages, medical expenses and rental of an automobile, and $2,500.00 as damages to his automobile. This appeal is from a judgment on a verdict awarding appellee $7,415.50, on the grounds that (1) the verdict was grossly excessive, (2) not sustained by sufficient evidence and (3) is contrary to law.

The collision occurred January 29, 1960, at an intersection of Pike Street and Arnold Street in Covington, Kenton County, Kentucky. The appellee, David L. Brunk, Jr., who was driving his 1959 Plymouth automobile, had stopped at the intersection for a red light. The defendant, Ronald Bowling, was driving a 1953 International truck and trailer belonging to the co-defendant, Scott Bowling, which truck was loaded with lumber. As a result of the appellant traveling at a speed of twenty-five miles per hour and failing to stop, his truck struck the automobile of the appellee in the rear, knocking it forward and coming to rest with the left front wheel of the truck on top of the rear body and trunk of appellee’s automobile, after pushing appellee’s automobile into the rear of a Kelly truck which was in front of appellee. The appellee then and there experienced a sharp pain in his neck. He was taken to Booth Hospital, examined by a doctor and released about a half hour later.

Three days later, on February 1, 1960, appellee saw Dr. George F. Riley at the latter’s office, at which time he complained of pains, stiffness and soreness in his neck, shoulders and upper back muscles. Dr. Riley testified that he conducted an examination at that time on which he could base the fact that appellee was experiencing pains in the area of his neck and shoulder, which he characterized as muscle strain in the back of his neck, shoulders and upper part of his back, or a whiplash injury, which is usually caused from being struck from the rear. Dr. Riley also described a whiplash type injury as one which may occur when one lunges forward, hitting something from the front. On April 12, 1960 appellee again saw Dr. Riley, and stated that he was still experiencing pain in his neck. Dr. Riley testified that the muscles were still tense and that he still experienced pain on feeling or palpating these muscles. He was X-rayed, but the X-rays showed no evidence of recent or old bone injury. The only treatment, according to Dr. Riley, was rest, heat, and time.

The day before the trial, November 19, 1960, appellee was examined by Dr. Riley and Dr. Riley testified that appellee’s condition was substantially the same as on the preceding April 12th. Dr. Riley’s testimony is uncontradicted.

There appears to be no controversy as to the amount of- the verdict in this case rendered for special damages, so we are concerned with the question of whether the amount of $5,000.00 for physical pain and mental suffering, if any, he has endured and which he may hereafter endure, if any, was excessive.

From the evidence it is established that:

1. The appellee’s automobile which was sitting still was struck from the rear by appellant’s heavily loaded truck and knocked forward some sixty feet, with the truck’s left front wheel coming to rest on top of appellee’s automobile.
2. Appellee sustained a whiplash injury to the muscles of the back of his neck, shoulders and upper part of his back.
3. Appellee lost one week from his regular work and periodically loses from one to two days per month from his employment, due to soreness and stiffness.
4. Appellee’s ability to carry his sample cases was impaired, and at intervals of from three to ten days he is unable to get proper rest.
5. Ten months after the accident his condition is substantially the same.
6. The only treatment available is time and rest for an indeterminate period of time.
7. The statement of Dr. Riley that “time and rest” is the only treatment implies that complete recovery can be achieved, but it clearly indicates that the condition described will persist for some time, and an award for future pain and suffering was proper.
Consolidated Coach Corp. v. Hopkins, 228 Ky. 184, 14 S.W.2d 768; Nussbaum v. Caskey, 235 Ky. 640, 32 S.W.2d 18.

The appellants contend that the judgment in the sum of $5,000.00 for pain and suffering was excessive. The rule in Kentucky is well established that the power of the courts to reverse in cases where it is claimed damages are excessive is limited to instances where the award appears to be so disproportionate to any reasonable consideration of the proven injury and its results, as to strike the court at first blush that the verdict was not reached in calm deliberation, but resulted from something which in a measure tended to create a passion or prejudice, or some element which might have tended to bias the jurors, or unless damages awarded are so great as to strike the mind on first impression as having been superinduced by passion and prejudice, or unless so grossly excessive as to shock the conscience and raise irresistible inference of having been influenced by other considerations than law and evidence. Gnau v. Ackerman, 166 Ky. 258, 179 S.W. 217; Hedges v. Neace, Ky., 307 S.W.2d 564; Consolidated Coach Corp. v. Hopkins, 228 Ky. 184, 14 S.W.2d 768.

The reasons established by the evidence herein, and numbered 1 to 7 inclusive, amply support the verdict and award. It is therefore recommended that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

Under the authority of Commercial Carriers, Inc. v. Matracia, Ky., 311 S.W.2d 565, and Turner v. Johnson, Ky., 333 S.W.2d 749, and the cases cited therein, I am compelled to dissent. I feel that the evidence is insufficient to sustain the award of $5,000 damages for pain and suffering. The case should be reversed on this issue only for retrial by the lower court.


author: DAVIS, Commissioner.

text:
    Jack C. MASSENGALE, Petitioner, v. Frederick WARREN, Judge Campbell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    April 17, 1964.

      Jack C. Massengale, Cincinnati, for petitioner.
    Frederick Warren, pro se.
   DAVIS, Commissioner.

Jack C. Massengale, petitioner, seeks an order of prohibition against Honorable Frederick Warren, Judge of Campbell Circuit Court, by original action in this court. Sec. 110, Ky.Constitution; KRS 21.050; RCA 1.420. The petition for the extraordinary relief sought falls short of stating the requisite grounds. It is fundamental that this court will not issue the order of prohibition to control actions of courts of inferior jurisdiction unless the inferior court is acting without jurisdiction, or acting so erroneously within its jurisdiction that great and irreparable injury will result, and petitioner has no other adequate remedy. Jones v. Tartar, 308 Ky. 813, 215 S.W.2d 955.

Petitioner avers that respondent is attempting” to place petitioner in jail, “on a judgment of $1,000, which was taken by Charles Bruce Lester” and that respondent has awarded judgment of $7,500 in favor of Charles E. Lester, Jr. It is claimed that each of these actions was instituted without legal basis, that petitioner is a citizen of Ohio, and that process was served upon him while he was on “official business” in the courthouse at Newport. We are not favored with information as to the nature of the suit in which the $1,000 judgment was rendered. However, in the response we are told that motion for execution pursuant to KRS 426.390 has been made; we are not informed whether the requested execution has been issued. Thus, by inference, we gather that the $1,000 judgment was' rendered in one of the actions enumerated in KRS 426.390; the statute authorizes execution against the person in limited instances. Reference to KRS 426.-400 discloses relief procedures against such executions. Other relief, if warranted, may be had on timely appeal.

The vaguely asserted errors, if any, relating to the $7,500 judgment as well as the $1,000 judgment may be proper grounds for relief by appeal; certainly no showing is made warranting exercise of the order of prohibition.

The order of prohibition is denied.


author: PALMORE, Judge.

text:
    William (Bill) E. CALHOUN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 17, 1964.

      H. K. Spear, Somerset, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., John G. Prather, Somerset, for appellee.

      . Concerning threatening statements alleged to have been made by apjiellant prior to the shooting.

   PALMORE, Judge.

The appellant, William E. Calhoun, was found guilty of voluntary manslaughter and sentenced to 2 years’ imprisonment under an indictment charging him with murder. KRS 435.010, 435.020. His claim of error is based on the failure of the Commonwealth’s Attorney, in opening the trial, to state to the jury the evidence on which he relied to support the charge. RCr 9.42.

The indictment alleged that in June of 1963 in Pulaski County, Kentucky, appellant “murdered James C. Chestnut by shooting him * * * against the peace and dignity of the Commonwealth of Kentucky.” It was read to the jury prior to the introduction of evidence. Appellant did not question or seek to remedy the prosecuting attorney’s omission to further extend his opening statement until the close of the Commonwealth’s case in chief. He contends, however, that he was prejudicially surprised by certain testimony of two prosecution witnesses which they had not revealed when interviewed by his appointed counsel and by the testimony of another witness whose name was not endorsed on the indictment. Cf. RCr 6.08. The substance of his motion was that all of the Commonwealth’s evidence be stricken and that a verdict of acquittal be directed. It was overruled.

Prior to adoption of the Rules of Criminal Procedure (effective January 1, 1963) Cr.Code of Practice § 219 required the clerk or Commonwealth’s Attorney to read the indictment to the jury and state the defendant’s plea, and a failure to do so at some time “before the conclusion of the evidence by the Commonwealth” was grounds for reversal. Farris v. Commonwealth, 111 Ky. 236, 23 K.L.R. 580, 63 S.W. 615 (1901). The new rules abandoned this requirement.

Cr.Code of Practice § 220 provided as follows: “The attorney for the Commonwealth may then state to the jury the nature of the charge against the defendant, and the law and evidence upon which he relies in support of it.” (Emphasis added.) In the process of transition to RCr 9.42(1) the word “may” became “shall”:

“The attorney for the Commonwealth shall state to the jury the nature of the charge and the evidence upon which he relies to support it.” (Emphasis added.) RCr 9.42(1). Hence it is argued that such a statement, though formerly permissive, now is mandatory.

It has been said to be “well settled that the jury must be fairly apprised of the nature of the charges against the defendant.” Robles v. United States, 9 Cir., 279 F.2d 401, 403 (1960). Aside from statutory provisions, however, the origin and scope of this principle appear to be rather obscure. In an 1835 English murder trial, Rex v. Orrell, 1 Mood. & R. 467, 7 Car. & P. 774, 173 Eng.Rep. 337, 338, counsel for the prosecution, after stating the facts, indicated that there was evidence pf .previous expressions and declarations of the prisoner which he (the prosecutor) would not detail, whereat the presiding judge, upon consultation with an associate, ruled as follows: “We think the fair course toward the prisoner is to state all that is intended to be proved.”

Since the opening statement was merely permissive under Cr.Code of Practice, § 220, it is clear that the reading of the indictment as directed by Cr.Code of Practice § 219 was considered a sufficient apprisal to the jury of the nature of the charge. The scope of our code requirement in this respect therefore was not as favorable to the defendant as the rule enunciated in Rex v. Orrell.

RCr 9.42 subsections (1) through (5) replace §§ 220 through 224 of the Criminal Code of Practice, omitting Cr.Code of Practice § 219. Though the rule purports only to direct the “order” or sequence of the .proceeding, it may be conceded that some statement informing the jury of the nature of the charge is fundamental and indispensable. Therefore, with abandonment of . the requirement of reading the indictment, which formerly fulfilled this purpose, evidently it behooved the drafters of the new rules to provide for its satisfaction otherwise, and Cr.Code of Practice § 220, transplanted to RCr 9.42(1), was chosen as the logical and convenient receptacle. We perceive no greater significance or other conscious design in the change from “may” to “shall”.

It is recognized that the indictment under the rules need not be as elaborate and de- . tailed as it was theretofore required to be. Still, however, it must state “the essential facts constituting the specific offense with which the defendant is charged,” RCr 6.10 (2), and if it does so it is sufficient, when read, to advise the jury of the nature of the charge. The reading of the indictment in this case was adequate to that purpose.

Since we have concluded that RCr 9.42 was not intended to do 'more than preserve the necessity of apprising the jury of the . nature of the charge, it follows that a statement of “the evidence” is not mandatory, even though a blindly literal construction of the rule would make it so. That such a construction would lead to an entirely impracticable result is an additional basis for our determination that it was not so intend- ■ ed.

The judgment is affirmed.

      . Galloway v. Commonwealth, 5 K.L.R. 213, 11 Ky.Op. 951, 953 (1883). See also Gilbert v. Commonwealth, 204 Ky. 505, 264 S.W. 1095 (1924).

      . Otherwise, the court suggested in Galloway v. Commonwealth, 5 K.L.R. 213, 11 Ky.Op. 951 (1883), it cannot be assumed that the jurors “comprehend the issue they are sworn to well and truly try.”

      . Though promulgated officially by the court, the rules were, of course, drafted originally by special committee.


author: CLAY, Commissioner.

text:
    D. O. ROBERTS, Appellant, v. Lavana (Luviana) Thomas OWENS, Appellee.
    Court of Appeals of Kentucky.
    April 17, 1964.

      G. M. Castle, Harlan, for appellant.
    H. M. Brock & Sons, Harlan, for appel-lee.
   CLAY, Commissioner.

In 1941 appellant in good faith purchased three lots in Harlan for $300. In 1955 ap-pellee brought this suit and established her ownership. By virtue of a pre-trial order the only controversy between these two parties involves (1) the rent to which appellee was entitled while appellant was in possession, and (2) the credit which appellant should be allowed for enhancing the value of the property by improvements made thereon.

The case was tried on depositions by the Chancellor (a special Judge) and he charged appellant with rent at the rate of $15 per month (totalling $3,810) and allowed him nothing for enhancing the value of the property.

The property when purchased by appellant was swampy land often flooded, with an elevation substantially below that of the highway which it adjoined. He testified the land was bought to protect his nearby dairy from the danger of pollution. The evidence is rather convincing that this property had practically no value in its unimproved state for any purpose. Appellant filled and drained the land and erected improvements which substantially enhanced its value.

The plaintiff and another witness testified the property in its unimproved state had no rental value. Other witnesses estimated the rental value up to $25 a month, but it appears their estimates were based upon the possible use of the property when improved. None of these witnesses suggested any use of the unimproved property which would justify a substantial rental.

In the light of the evidence we believe the Chancellor was in error in fixing a reasonable rental value of $15 a month or $180 a year. This constituted 60 percent of the purchase price ($300) and it is clear the property had no fair market value in its unimproved state in excess of this purchase price.

However, appellant did have the use of this property which was owned by another. Under the circumstances we think a reasonable annual rental value of 10 percent of the purchase price would be fair. Therefore appellant should be charged on the basis of $30 a year for the term of his occupancy.

Appellant improved this property by draining and filling it and erecting thereon two small dwellings and a warehouse. The photographs show these to be substantial buildings and in a good state of repair. Since the buildings had been erected many years ago, appellant was unable to and did not present very substantial evidence as to the specific costs of the improvements. He did itemize some costs and gave an overall figure ($13,510) as .being the amount he expended in improving the property. Other witnesses estimated the cost of constructing the buildings as being in excess of $2,000.

The Chancellor made a finding that the building had enhanced the value of the property in the “sum of $2,000”, which is supported by the evidence. He determined, however, that since by virtue of the pretrial order appellant could not recover anything in excess of the actual cost of construction or the making of improvements, and since appellant had “entirely failed to show actual, cost of ■ same , he should be allowed nothing on this item. (The Chancellor authorized him to remove the buildings within 90 days.)

Though the evidence for appellant on this issue was not entirely specific as to the cost of the improvements, we are of the opinion there was substantial evidence appellant had expended in excess of $2,000 therefor. Since the Chancellor found the property had actually been enhanced in value in this amount, we think it was error not to allow him this amount.

In his brief appellant raises a question concerning a dower interest, but as this issue was not designated for trial in the pre-trial order, the Chancellor did not err in making no decision in respect thereto.

We wish to make it clear that in this opinion we are not undertaking to decide the basic legal or equitable rights of the parties, but are only determining their rights upon the issues set forth in the pre-trial order which both parties have accepted as governing this controversy.

The judgment insofar as it affects the parties to.this appeal is reversed, with directions to modify it consistent with this opinion.


text:
    Odell MINIARD, Appellant, v. Margaret SHEPHERD et al., Appellees.
    Court of Appeals of Kentucky.
    April 17, 1964.
    James C. Brock, Harlan, for appellant.
    Clarence A. Cornelius, Harlan, for ap-pellees.
   CLAY, Commissioner.

This is an appeal from a judgment in an automobile accident case on the ground the damages recovered by appellees were excessive. The case was tried by the circuit judge without a jury and he awarded one appellee $2,000 for pain and suffering and the other $250.

We have considered appellees’ argument that the appeal should be dismissed on a jurisdictional ground, but in the light of our recent opinion of Creech v. Jackson, Ky., 375 S.W.2d 679, this position is not well taken.

Appellees’ injuries were principally bruises, contusions and cuts. It is unnecessary to detail the evidence of injuries, medical treatment, and alleged pain suffered by these two parties. While the awards were liberal, they do not strike us as resulting from passion and prejudice on the part of the circuit judge.

We have examined Berio v. Talley, Ky., 269 S.W.2d 185, in which the nature of the injuries and the amounts awarded were somewhat comparable. One of the awards in that case was so clearly disproportionate to the injury that passion and prejudice were evident. In addition, the value of the dollar has decreased since the date of that decision. We think these sufficient distinguishing characteristics, and the Berio case is not controlling here.

The judgment is affirmed.


author: FRANK D. CONNETT, Jr., Special Judge.

text:
    Louis BINZ, Individually and as a Shareholder of St. Louis Hide and Tallow Company, a Corporation, Suing on Behalf of Himself and All Other Shareholders, and for the Benefit of the Corporation, (Plaintiff) Appellant, v. ST. LOUIS HIDE AND TALLOW COMPANY, a Corporation, Albert J. Binz, Emma Binz, Leo J. Wilkes, William Brynda, William J. Wingbermuehle and Jack M. Cronin, (Defendants) Respondents.
    No. 31502.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.
    Robert S. Allen, Dominic Troiani, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for appellant.
    Robert Mass, St. Louis, for St. Louis Hide and Tallow Co. and William Brynda.
    Dubinsky & Duggan, Jerome F. Duggan, St. Louis, for Albert J. Binz, Emma Binz and Leo J. Wilkes.
    Pannell & Hess, Phillip G. Hess, Festus, for William J. Wingbermuehle and Jack Cronin.
   FRANK D. CONNETT, Jr., Special Judge.

This case arose from the following set of facts: In 1952, plaintiff’s mother, Marie Binz, and defendants Albert J. Binz and William Brynda purchased a St. Louis rendering plant (Haefele Hide and Tallow Company), now known as St. Louis Hide and Tallow Company, the corporate defendant, on whose behalf plaintiff instituted this suit. The corporate defendant, St. Louis Hide and Tallow Company, a Missouri corporation, was in the business of buying meat scraps, suet and bones, rendering the same and selling the processed product, namely, tallow. Marie Binz was a widow and defendant Albert J. Binz was her brother-in-law. Initially, the three of them, Marie Binz, defendants Albert J. Binz and William Brynda, each held an equal stock interest in the corporate defendant. From the beginning, defendant Albert J. Binz was president, Marie Binz was vice-president, and defendant Brynda was secretary-treasurer. Although the articles provided for four members on the board of directors, the three of them served as directors from September 2, 1952, until October 28, 1958.

From the inception of this stock ownership, there was a restrictive agreement among the three stockholders requiring any of them desiring to dispose of his stock to first offer the same to the other parties.

About 1953, defendant Leo J. Wilkes became associated with the corporation as an accountant, and subsequently 100 shares of the corporation’s stock were issued in his name, and he then became the fourth director. The 100 shares of stock were apparently his in name only and were under control of Albert J. Binz. In February, 1960, the by-laws were amended to provide that only a stockholder could be a director of the corporation. Thereafter, in the spring of 1961, Marie Binz complied with the restrictive stock agreements and ultimately, in July of 1961, transferred all of her stock in the corporation to plaintiff. On March 30, 1962, in violation of these stock entailing agreements, defendants Binz and Brynda gave options to defendants William J. Wingbermuehle and Jack M. Cronin for their 2500 shares. They also executed irrevocable proxies covering all of these shares to defendants Wingber-muehle and Cronin. So that Wingber-muehle and Cronin could qualify as directors, two shares of stock were transferred to them for $1.00 each. At the Board of Directors Meeting on April 6, 1962, defendant Brynda was elected president, defendant Wingbermuehle was elected vice-president, and defendant Cronin was elected secretary. Plaintiff, Louis Binz, was present as the fourth director. The board set the salary of defendant Brynda and then attempted to delegate to defendant Brynda the authority to fix the rest of the salaries by the following Resolution as shown by the minutes of the corporation:

“MINUTES
“Thereupon, motion was made by Winbgermuehle that the new President, William, Brynda, should receive the same salary and other emoluments of office that were enjoyed by his predecessor Al Binz, as President of company. Motion was seconded; motion put by the Chair, the Chair declared the motion carried.
“Thereafter, William Wingbermuehle moved that the President, William Brynda, be empowered to set all other salaries and other financial matters for all other employees of the corporation.
“Motion was put by the Chair and declared carried.”

Defendant Brynda set the salaries of defendants Wingbermuehle and Cronin at $6,000 per year for each of them. From the evidence presented, it appears that defendant Wingbermuehle devoted all of his time to defendant corporation and defendant Cronin a part of his time. Defendants Wingbermuehle and Cronin had previously been in business as partners operating a business known as Bill and Jack Tallow Company. In this business they purchased and picked up suet, meat scraps and bones from retail butchers, meat markets and groceries and sold the same to Tenderers, One of the Tenderers buying such raw products was this corporate defendant, St. Louis Hide and Tallow Company. After the purchase of the controlling interest of defendant corporation, they continued to operate the Bill and Jack Tallow Company with defendant Cronin spending most of his time in the interest of the partnership. The partnership became the sole supplier for defendant corporation at prices fixed by defendant Brynda and defendant Wingber-muehle.

The plaintiff, appellant, Louis Binz, brought this action against the St. Louis Hide and Tallow Company as a minority stockholder (1200 out of 3700 shares), on "behalf of himself’and for'the benefit of the corporation. - First, he sought to enjoin transfers of stock in violation of the two stock entailing agreements restricting the transfer of the corporation’s stock, and the removal of defendants Wingbermuehle and Cronin as directors and officers of the corporation. He also asked that defendants Wingbermuehle and Cronin be made to account'to the corporation for allegedly excessive salaries and the sums paid to them by the corporation. A trial was held before the Honorable James 'F. Nangle, Judge of the Circuit Court of the City of St. Louis. The court sustained plaintiff’s petition and held that Wingbermuehle and Cronin were not properly elected as directors and officers of the corporation and they were ordered to cease acting as such. However, the court found “that plaintiff did not prove that the -salaries or . other sums paid defendants .Wingbermuehle and Cronin were unreasonable and, accordingly, said defendants do not have to account to the corporation for .monies paid to them by the corporation.”

■' The plaintiff appealed from the decision •of the court below on this latter issue on the 'ground that the court had placed the burden ;of proof on the plaintiff to prove his allegation that these salaries paid to Wingber-‘muehle and Cronin were excessive. We ''believe such was the effect of the court’s ruling. " It is plaintiff’s contention that the •burden of proof should have been on defendants Wingbermuehle and Cronin to :show that their salaries were reasonable. 'Any issue as to prices paid to the Bill and Jack Tallow Company for meat scraps, etc., by defendant corporation has been abandoned as only the salary question has been •briefed.

Neither party was able to cite and the court was unable to find any Missouri case directly on the point. However, a study of the cases from other jurisdictions , concerning suits of this nature convinces us • fhat'the law is as follows:

In suits by stockholders to recover for the corporation, salaries claimed to be excessive and paid to officers, who are also directors, and these officer directors have set their own salaries, or whose votes were necessary to set their own salaries, the burden is upon the director officers to justify their salaries and show the reasonableness thereof.

It appears that at one time there was the rule that acts of director officers in fixing their own salaries were void, and any ■director officer who voted for his own salary was entitled to no compensation. ■However, it appears that the modern rule ■ is that such acts are only voidable and that .in a suit by a minority stockholder to set aside a salary set by a self-dealing officer director, the officer director has an opportunity to prove that the salary set was reasonable and justified by the services performed. Yet it is clear that when it appears the salary was set by self-dealing, then the burden of proof in justifying this salary is upon the- officer director. .

In the case of Carr v. Kimball, 153 App. Div. 825, 139 N.Y.S. 253, at page 263, we find the following:

“There is another set of cases which, while fully sustaining the proposition that directors are trustees, incapable of contracting with themselves, and that such purported contracts are voidable at the suit of the corporation, or a minority stockholder suing in a representative capacity, nevertheless recognize a tendency in modern times towards the formation of those small business corporations, and, realizing that those most interested and holding practically all of the stock will in all probability become the directors and officers thereof,' take the view that, while the contract is voidable, nevertheless the officer who has done the work by which the corporation has benefited is entitled to receive pay on the theory of quantum meruit. The rule is, however, that the burden is upon the director officer to show the fair and reasonable value of the services rendered.”

In Davis v. Thomas A. Davis Company, 63 N.J.Eq. 572, 52 A. 717 (1902) at page 718, we find the following:

“It is entirely settled that, where directors of a corporation attempt to deal with themselves, their acts are the subject of judicial inquiry and supervision. Directors cannot fix the value of their own services to the corporation. Whenever they attempt to do so, and their action is challenged by a stockholder or other interested persons, the burden is upon them to show what they have done to merit payment; and the quantity of compensation to which they are entitled is to be graded, not by the sum voted, but by what they earn.”

See also 27 A.L.R. 300, 44 A.L.R. 570, 5 Fletcher Corporations, Sec. 2113, page 492. The basis of this rule of law is found in the prohibition against a director engaging in self-dealing. This has always been the law in Missouri. Hill v. Rich Hill Coal Mining Company, (1895), 119 Mo. 9, 24 S.W. 223; Bennett v. St. Louis Car Roofing Co., (1885), 19 Mo.App. 349; R. T. Davis Mill Co. v. Bennett, (1890), 39 Mo.App. 460; Frankford Exchange Bank v. McCune, (1934), Mo.App., 72 S.W.2d 155; Johnson v. Duensing, (1960), Mo.App., 340 S.W.2d 758, 768.

The defendants cite Seitz v. Union Brass and Metal Mfg. Co., 152 Minn. 460, 189 N.W. 586, 27 A.L.R. 293, and Beha v. Martin, 161 Ky. 838, 171 S.W. 393, as authority for a contrary view. In the Seitz case, no officer participated in the fixing of his own salary, nor was his presence necessary to constitute a quorum of the board of directors. In the Beha v. Martin case, the statement that “the objecting stockholder must establish affirmatively that the salary or compensation is unreasonable and oppressive” (171 S.W. 1. c. 394) is obiter dictum. In that case the defendant, president of the corporation, had voted for his own salary, and the judgment was that he pay back the salary voted and the corporation was enjoined from paying him anything because his act in voting for his own salary made the action- of the board invalid. Furthermore, the court cited Lillard v. Oil, Paint Drug Company, 70 N.J.Eq. 197, 56 A. 254, as its authority for its statement. That case does not hold that the objecting stockholders must establish affirmatively that the salary is unreasonable or oppressive in cases where the salary is set by the board of directors and is that of a member of the board and an officer of the corporation, and this officer director voted for his own salary. In fact it holds the opposite.

Defendants also take the position that plaintiff must show some detriment to the corporation ’ before questioning the salaries paid to defendants Wingbermuehle and Cronin, and they point out that all of the evidence presented shows that defendant corporation has benefited by virtue of the services of defendants Wingbermuehle and Cronin. Actually whether or not the corporation suffered any detriment is the ultimate issue. Did the corporation pay more for the services of defendants Wingbermuehle and Cronin than they were reasonably worth ? The issue of detriment has nothing to do with the question of who has the burden of proof. In cases where it is shown that corporate directors have engaged in self-dealing, the burden is upon the directors to justify their actions and to show that there was no detriment to the corporation. The Missouri cases cited above amply demonstrate that self-dealing by directors of corporations are suspect in Missouri regardless of any showing of detriment to the corporation.

Given this as a rule, the question then is whether defendants Wingbermuehle and Cronin come within the rule. Did they as directors and officers of the corporation (we are assuming them to be de facto officers and directors rather than mere interlopers) deal with themselves when the amount of their salaries was determined? Did they either directly or indirectly vote for their own salaries? We hold that they did. They controlled 2500 of the 3700 shares of corporate stock. They were two of the four directors. Defendant Brynda had no authority to set any salaries without the votes of defendants Wingbermuehle and Cronin. The record shows defendants Wingbermuehle and Cronin did vote to give this authority to defendant Brynda. Having participated as directors in setting their own salaries, defendants Wingbermuehle and Cronin must now show that the salaries paid to them were justified by the work performed.

Wherefore, this case is remanded and the court below is directed to have defendants Wingbermuehle and Cronin account to it for the salaries received by them as officers of the corporation.

WOLFE, Acting P. J., and ANDERSON, J., concur.


author: BRADY, Commissioner. PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and John E. Shepard, Jr., Plaintiffs-Respondents, v. MID-CONTINENT CASUALTY COMPANY OF TULSA, OKLAHOMA, a Corporation, and John E. Gazzolo and Anna M. Gazzolo, Defendants, Mid-Continent Casualty Company of Tulsa, Oklahoma, a Corporation, Defendant-Appellant.
    No. 31599.
    St. Louis Court of Appeals. Missouri.
    April 21, 1964.

      --
    Harlan & Harlan, John L. Harlan, Jr., Clayton, for defendant-appellant.
    Wm. L. Mason, Jr., James L. Sullivan, St. Louis, for defendants.
    Evans & Dixon, A. J. Seier, John F. Evans, St. Louis, for plaintiffs-respondents.
   BRADY, Commissioner.

Mr. and Mrs. Gazzolo brought an action for wrongful death of their minor child against John E. Shepard, Jr. and Robert G. Schlottach. Shepard and his insurance company, State Farm Mutual Automobile Insurance Company, hereinafter referred to as State Farm, then brought this action against Mid-Continent Casualty Company of Tulsa, Oklahoma, hereinafter called Mid-Continent, requesting that the trial court construe the provisions of the two policies of insurance to determine which policy provided “excess” and which provided “primary” coverage. The trial court held that State Farm’s policy provided only “excess” coverage, and Mid-Continent has appealed.

The pertinent provision of Mid-Continent’s policy is as follows: “III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply. (1) to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, but this provision does not apply to a resident of the same household as the named insured, to a partnership in which such resident or the named insured is a partner, or to any partner, agent or employee of such resident or partnership (Original Ex. A, T. 17).” (Emphasis supplied.)

The pertinent provisions of State Farm’s policy are as follows: “14. Other Insurance. If the insured has other insurance against liability or loss covered by this policy, the company under all coverages except coverages C and M, shall not be liable for a greater proportion of such liability or loss than the applicable limit o'f liability bears to the total applicable limit of liability of all collectible insurance against such liability or loss, (b) The insurance with respect to a temporary substitute automobile, a trailer and a non-owned automobile shall be excess over other collectible insurance (Original Ex. B, T. 18).”

Shepard and Schlottach were longtime friends. Schlottach was an employee of a service station owned by others, where Shepard had worked in the past. Schlot-tach’s duties were to operate the grease rack, change tires, and do any minor repairs that were requested on Sunday. On the particular Sunday here involved neither of the owners of the station were on the premises. There was a part-time employee there, but Schlottach was in charge. However, he had no authority to hire anyone. Nothing further appears in the record as' tó the part-time 'employee’s general duties or what he was doing at the time this incident occurred. Shepard had acquired some second-hand mufflers, and he took them to the filling-station where Schlottach worked in Order to put them on his automobile. His testimony was that in' the past “They let me put it up orí the rack sometimes when I do small things to the car.” When he arrived at the filling station, he asked Schlottach, “ * * ' * if I could put my car on the grease rack.” Schlottach gave permission to do so. -Shepard drove his car onto the grease rack, and Schlottach operated the hoist" lever so that ' Shepard’s automobile bould be raised. • Schlottach and Shepard measured the mufflers and found that they wouldn’t fit. Shepard noticed water leaking out of -his' automobile and said to 'Schlottach-, “I- wonder, where'this is coming - from P’Vánd- Schlottach replied, “I think from the freeze plug.”.. Upon examination it was discovered the freeze plug had rusted through, and Schlottach told Shepard it would have to be. replaced. Installation of such plugs was a part of Schlottach’s regular duties. Shepard asked Schlottach, “ * .* * whether they had a freeze plug and he- said, no, they didn’t, and I asked .where I could pick one up and he said, down at Jimmy’s.” - Schlottach’s testimony ■was to the same effect with the additional information that -the service station’s parts department .was closed until Monday. Jimmy’s was about a mile or mile and one-half from.the .service station. Schlottach testified -that Shepard’s -automobile was totally inoperative until a new freeze plug was installed. Shepard 'testified that he asked Schlottach if it would be all right to use his car to go to Jimmy’s, and Schlotr tach gave him permission to do so. Schlot-tach’s testimony differs somewhat in that he testified- that as. Shepard started to walk to ■Jimmy’s, he passecLSchlottacffls automobile, * *, * .and I -told-.him to go ahead .and take’my. car.”, Schlottach did not.-say anything else- dr put any limitation of- any •kind.- on-'Shepard’s- use of -his automobile nor give’any-directions as to the trip. ’He did not intend to charge Shepard for the use of the car and did not do so. Schlot-tach did intend to install the plug when Shepard returned with it. Shepard’s testimony was that he knew the automobile belonged to Schlottach personally and did not belong to the service station owners. Schlottach’s testimony was that his personal automobile had never before been used in connection with the operation, of the service station and that the owners had never made any statement of any kind to him about using his automobile in connection with the operation of the station. Shepard testified that when he got to Jimmy’s, he was told that he would have to go back and get the old freeze plug so that they could be sure they had the right size. This he did, and upon his return to the service station Schlottach took the plug out of Shepard’s automobile and handed it to Shepard, who then returned to Jimmy’s. It was on the return leg of his second trip to Jimmy’s that the accident resulting in thé death of the Gazzolo child occurred.

Shepard paid for the freeze plug himself, and Schlottach neither gave him the money to pay for it nor directed him to charge it to the station’s account with Jimmy. After the accident occurred, Shepard’s brother brought the new freeze plug to Schlottach, who then installed it in Shepard’s automobile. Shepard never paid anything for this service, and neither was he given a bill for it. Schlottach’s testimony was that he forgot to make out a bill for the work. :

The trial court found that Shepard was using the automobile with the permission of the owner and named insured in Mid-Continent’s policy, i. e., Schlottach. ’ The trial court also found that Shepard was “ * * not using the automobile in the operation of ah automobile sales agency, repair shop, service station, * * *• and was not an agent or employee of any person or organization operating such *' * * business.” The' trial court decreed that Mid-Continent’s policy provided primary insurance for Shepard arid that Mid-Continent was therefore required to defend Shepard in the Gazzolo’s death action, to pay all costs and attorneys’ fees of said defense, and to satisfy any judgment up to the limits of said policy which may be adjudged against Shepard in the Gazzolo action.

The provisions of Mid-Continent’s policy are clear. The coverage afforded by that policy extends to any person driving the Schlottach automobile with his permission unless certain exceptions apply. There is no dispute as to the fact that Shepard was driving with Schlottach’s permission. The issue is whether any of the exceptions stated in the omnibus clause of the policy apply. The rule is that “ * * * provisions limiting, cutting down, or avoiding liability in the coverage made in the policy are construed most strongly against the insurer. * * * ” Giokaris v. Kincaid, Mo., 331 S.W.2d 633, l. c. 639-640, 86 A.L.R.2d 925. A careful reading of the provisions of III, (a), (1) of Mid-Continent’s policy in the light of the factual situation here involved will show that even though Shepard had Schlottach’s permission to drive the latter’s automobile, the coverage afforded by the omnibus clause of Schlottach’s policy would not apply if Shepard was the agent or employee of a person operating a'service station and had ah accident arising out of the operation of that service station. Since Mid-Continent’s denial of primary coverage rests upon its interpretation of a policy exclusionary clause, it has the burden of proof. Gennari v. Prudential Ins. Co. of America, Mo., 335 S.W.2d 55; State Bank of Poplar Bluff v. Maryland Casualty Co., 8 Cir., 289 F.2d 544.

, There is no evidence that would justify considering Shepard an operator of the service station or an employee of the operator. Both Shepard and Schlottach testified he was not an employee, and Shepard testified he was a hoisting engineer. Schlottach had no authority to hire any employees.

Mid-Continent places its greatest reliance upon the- Contention that Shepard was acting as the agent of the service station in driving Schlottach’s automobile to get the freeze plug. Stephanelli v. Yuhas, 135 Pa.Super. 573, 7 A.2d 124, is very similar on the facts to the instant case. In that case Walsh operated an automobile repair shop. His wife owned an automobile which was insured by a policy having an omnibus clause and accompanying exclusions essentially identical to that here involved. Yuhas took his truck to Walsh’s shop for repairs. It was discovered that a “tie bolt” was needed to make the repairs. Walsh did not have such a bolt in his stock and -would have to obtain one from a supply house in Scranton, Pa. Yuhas stated he had to go to Scranton to get his pay check, and Walsh ■ asked him to get the tie bolt. Yuhas agreed to do so. It was stipulated that Yuhas drove Mrs. Walsh’s automobile to Scranton with her permission. In that case as in the instant case the only matter’ in dispute was whether the exception in’ the orrmibus clause applied. The court recognized that Yuhas could be the servant of both Walsh and his own employer in going to get the tie bolt, citing the Restatement, Agency, Sec. 266. In making its decision that Yuhas was not Walsh’s agent the court re- •' lied upon the fact that Walsh had no cbn- ' trol over the way Yuhas Operated the automobile or as to the manner in which the ■ act of securing the tie bolt should- bé ex-e- • cuted, and the fact that Walsb did not pay" Yuhas for his services nor use Walsh’s • automobile. These same things are true in the instant case. Shepard did not use the automobile of the owner pf the station, he was not paid for his services in securing the freeze plug, and Schlottach, the em-"' ployee of the service station owner, exercised no control over Shepard as to how he drove to Jimmy’s or in what manner he purchased the freeze plug. Moreover,. in Stephanelli v. Yuhas, supra, Walsh asked Yuhas to get the needed part. Since the evidence in the instant-case.is that Shepard asked Schlottach where he could get the freeze plug, the instant case' would seem even stronger- against- Shepard’s agency - than Stephanelli v. Yuhas.

However, we prefer to place our decision upon another basis. We hold that even assuming Shepard to be an “agent” within the terms of the exception to the omnibus clause, still the exception would not apply for the reason that Shepard’s accident was not one arising out of the operation of a service station. The clause “arising out of the * * * use * * * ” has been held to be a very broad, general and comprehensive term unless limited by other language in the policy. Schmidt v. Utilities Ins. Co., 353 Mo. 213, 182 S.W.2d 181, l. c. 183, 154 A.L.R. 1088. Substituting the word “operation” as used in the exclusion in this case for the word “use” appearing in the Schmidt case, Mid-Continent contends that the words “arising out of the operation” of a service station may also be said to be very broad and general. Be that as it may, we do not think these words so broad as to encompass the situation here presented. Whether this accident arose out of the operation of the service station must depend upon the circumstances of the particular case, the nature of the transaction, its connection with the business and whether it can be said to be a natural and necessary incident or consequence of the operation of the service station even though not a foreseen or expected consequence of that operation. Allen v. Travelers Indemnity Co., 108 Vt. 317, 187 A. 512.

The circumstances of the instant case and the nature of the transaction here involved weigh heavily against Mid-Continent’s contention. Shepard had been allowed to use the service station’s facilities to make minor repairs on his automobile in the past. He and Schlottach were old friends, and Shepard had worked at the station at one time. While there is no explanation in the transcript as to what the part-time employee was doing or what his duties were, the very fact he was present and was not used for this errand raises a reasonable inference, when the evidence as- to the lack of - any charge being'made-is remembered, that this errand was not considered to be on behalf". of the service station but was the gratuitous act of a friend. The same may be said as to Schlottach’s own evidence that it was when he saw Shepard start to walk to Jimmy’s he told Shepard to take his car.

With respect to the connection this transaction bore to the business and whether it can be said to be a natural and necessary incident or consequence of the operation of a service station even though not a foreseen or expected consequence of that operation, the evidence weighs even more heavily against Mid-Continent. It may well be argued that it is a natural and necessary incident to the modern day operation of a service station doing automobile repairs as this one did that a vehicle should be maintained upon the premises for the purpose of securing supplies and running errands. However, we cannot hold it is a natural and necessary incident to the operation of a service station to use an employee’s personal automobile for that purpose in the absence of an agreement between the owner of the service station and the automobile owner as to such an arrangement. For example, such an express agreement could exist where the use of the employee’s automobile for such a purpose was a condition for his employment. For another example, such an agreement might be implied, if the employee understood from the general practice of the operation of such businesses that his personal automobile was expected to be made available for such purposes or from the fact that the use of his automobile for such a purpose had been the customary practice in the past. There is no such evidence in this case, and neither is there any evidence giving rise to any reasonable inference to that effect. In fact the evidence is that Schlottach’s automobile had never before been used in connection with the operation of the service station.

It follows that the exclusionary clause set forth in the omnibus coverage as stated in Mid-Continent’s policy does not apply, and the- cpvera'ge;,afforded by. the omnibus provisions of that policy does apply to Shepard. Accordingly, Mid-Continent’s policy provides primary coverage, and State Farm’s policy under the provisions of Paragraph 14, (b), provides excess coverage. Fidelity & Casualty Company of New York v. Western Casualty & Surety Company, Mo.App., 337 S.W.2d 566. The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

RUDDY, P. J., and WOLFE, J., and FRANK W. HAYES, Special Judge, concur.

ANDERSON, J., not participating.