author: DENTON, Chief Justice.

text:
    Buck C. YOUNG v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Inc.
    No. 7124.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1961.
    Rehearing Denied Dec. 18, 1961.
    Woodruff, Hill & Bader, Dallas, Clyde Elliott, Jr., Canton, for appellant.
    William M. Jones, Dallas, Long, Maron-ey & Aronson, Austin, for appellee.
   DENTON, Chief Justice.

This is a case in which the appellant, Buck C. Young, sought benefits under the Workmen’s Compensation Act. It is undisputed that Young was injured while employed by Canton Motors while he and another employee were attempting to start a tow tractor by pushing it with a wrecker. The jury found Young suffered temporary total disability for 300 weeks and permanent partial disability thereafter. Although the claimant’s petition alleged in the alternative the three subsections of Article 8309, Section 1, Vernon’s Ann.Civ.St., which deals with average weekly wages, the case was submitted only under Subsection (1) of that Section. In response to Special Issue No. 12 the jury found Young had worked in the employment in which he was working at the time of his injury for the same or another employer in the same or neighboring place, for substantially the whole of the year next preceding the date of his injury. The jury further found in Special Issue No. 13 that Young’s average weekly wage during such employment referred to in Special Issue No. 12 was $150.-00. The trial court sustained the insurance carrier’s motion to disregard the jury findings in Special Issues Nos. 12 and 13 on the basis that there was no evidence to support them, and entered judgment denying Young recovery.

The controlling question is whether there was any evidence of probative force to support the jury finding that Young was employed substantially the whole of the year under Subsection (1). In order to sustain the trial court in disregarding these findings, there must be no evidence of probative force supporting them. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Rule 301, Texas Rules Civil Procedure.

Appellant tried the case solely on the theory he had worked substantially the whole of the year in the employment in which he was working at the time he received his injury. No evidence was offered concerning average weekly wages under Subsections (2) and (3) of Art. 8309, Sec. 1. Having elected to proceed under Subsection (1), appellant’s right of recovery must be determined under this subsection only. Traders & General Ins. Co. v. Yarbrough (Tex.Civ.App.) 181 S.W.2d 305 (writ refused w. o. m.) ; Texas Employers’ Ins. Ass’n v. Allgood (Tex.Civ.App.) 252 S.W.2d 589, (refused n. r. e.). The claimant has the burden of proving by competent evidence his applicable wage rate under one of these subsections. American Employers’ Ins. Co. v. Singleton (Tex.Com.App.) 24 S.W.2d 26. As stated by our Supreme Court in Texas Employers’ Ins. Ass’n v. Ford, 153 Tex. 470, 271 S.W.2d 397:

“It is important that the provisions of these various subsections be followed. The Workmen’s Compensation Law arbitrarily sets up standards by which compensation is to be paid."

There is no real controversy over Young’s work record during the year preceding his injury on November 12, 1959. Young himself testified that in the year under consideration he farmed, raised cattle, delivered newspapers, and began working for Canton Motors in August or September of 1959. Appellee stipulated that Young was injured while in the scope of his employment with Canton Motors. Young had quit his farming operations when he began working for the motor company, but continued raising and selling cattle and delivering newspapers. He received $50.00 per week as an employee of the motor company. The evidence showed he earned approximately $3,000.00 from his farming operations during the preceding year; $250.00 per month raising and selling cattle, and $175.00 per month delivering newspapers. Appellee made no serious effort to challenge these figures

It is appellant’s contention that these various occupations and earnings therefrom are to be considered together in bringing Young under Subsection (1) and in computing his average weekly wage thereunder. As we understand it, appellant’s position is that these other occupations are so similar or related to Young’s employment with Canton Motors that these areas of employment are sufficient to place appellant under Subsection (1). Appellant relies on Fidelity Union Casualty Co. v. Carey (Tex.Com.App.) 55 S.W.2d 795 and Lloyds Guarantee Assur. v. Anderson (Tex.Civ.App.) 170 S.W.2d 312 (writ refused w. o. m.) among others. These cases are not controlling. In both cases cited above, the injured employee was performing similar work for the same employer. The primary question in both cases was whether the earnings in the two closely related occupations could be counted in computing the employee’s wages. Other cases relied on by appellant deal with whether the employee was engaged in a compensable occupation at the time of the injury. No such, question is before us. Appellant seems to take the alternative position that if Subsection (1) is not applicable, Subsection (2) is not applicable, then Subsection (3) is applicable. This reasoning is contrary to the well settled rule in this State to the effect that the burden is upon the claimant to show that his average weekly wages' can not be computed under either Subsection (1) or Subsection (2) before he may resort to Subsection (3). American. Employers’ Ins. Co. v. Singleton, supra; Texas Employers’ Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80; Texas Employers’ Ins. Ass’n v. Ford, supra.

Only meager testimony was presented •concerning Young’s duties with the motor ■company, but it is clear from the record that he did general duties for his employer such as driving pickups, picking up spare parts, driving a wrecker and helping on occasions in the shop. The fact that on at least one occasion Young sowed vetch for one of the owners of the motor1 company does not lead us to the conclusion that these other jobs are similar to the work performed for the motor company. All of these other jobs previously mentioned, except that of delivering newspapers, were those as a farm or ranch laborer and as such are expressly excluded from Workmen’s Compensation coverage. Art. 8306, Sec. 2, V.A.C.S. Farm or ranch labor and general duties for a motor company .can not be classified as similar “common labor.” Texas Employers’ Ins. Ass’n v. Brown (Tex.Civ.App.) 226 S.W.2d 233 (refused n. r. e.).

After reviewing this entire record we think it is clear Subsection (1) is not applicable. Under appellant’s own testimony he had worked for Canton Motors only three or four months at the time he received the injury. Art. 8309, Sec. 1, Subsections (1) and (2) were amended in 1959 and became effective prior to Young’s injury. The amendment reads “ * * * 210 days of the year immediately preceding the injury * * * ” instead of “ * ’ * * substantially’ the whole of the year immediately preceding the injury * * Even under the shorter period, appellant’s testimony does not bring him under Subsection (1). Having elected to submit the issue of his average weekly wages under Subsection (1), appellant was bound to have his claim determined under this subsection. We conclude the trial court was correct in disregarding the jury’s answers to Special Issues Nos. 12 and 13. There is no evidence of probative force to support the jury’s finding that Young worked either “substantially the whole of the year” as submitted to the jury or “210 days of the year” in the employment in which he was working at the time of his injury.

The judgment of the trial court is accordingly affirmed.

On Motion for Rehearing.

In the motion for rehearing, appellant urges that the case be either reversed and rendered allowing appellant recovery for ■total and permanent disability on the basis of $35.00 per week for 401 weeks; that the case be remanded for a new trial; or reform the trial court’s judgment so as to allow appellant the recovery of the minimum compensation rate under Section 10 of Article 8306.

We remain convinced the original opinion properly held there was no evidence to support the jury’s answers to Special Issues Nos. 12 and 13. If we are correct in this conclusion, it therefore follows that there is no basis to support a judgment for appellant under Subsection (1) of Art. 8309, § 1. Under the uncontradicted evidence Subsection (1) can not apply in this case for the obvious reason that appellant had not worked “substantially the whole of the year” as was submitted to the jury-or “210 days of the year” immediately preceeding the injury. We therefore see no basis upon which this Court should or could reverse and render this cause.

In preparing the original opinion we gave considerable thought to the question of whether the case could be remanded in order that appellant might be given an opportunity to obtain a jury finding under either Subsection (2) or (3) of Article 8309, § 1. This concern stemmed primarily from the fact it was admitted by the insurance carrier that appellant was injured to some extent in the course of his employment with the Canton Motor Company. Appellant cites several cases, including workmen’s compensation cases, which have Peen remanded where the case was tried under the wrong theory. However, in every such case it will be noted that the appellate court held the trial court erred in some material respect. We remain convinced the trial court was correct in sustaining appellee’s motion to disregard the answers to Special Issues Nos. 12 and 13. We would thus be placed in the position of remanding an errorless judgment. As Justice Garwood so aptly stated on motion for rehearing in Chevalier v. Lane’s, Inc., 147 Tex. 106, 213 S.W.2d 530, 6 A.L.R.2d 1045: “Our law does not contemplate remands for new trial except in connection with reversals and does not permit reversals except for errors. Scott et al. v. Walker, 141 Tex. 181, 170 S.W.2d 718, and cases cited.”

Appellant also contends that he is entitled to have the trial court’s judgment reformed so as to allow him recovery on the basis of the minimum compensation rate under Sec. 10 of Art. 8306. This contention is without merit under the circumstances here. Appellant does not file an unconditional remittitur. He takes the position he is entitled to this amount as a matter of law. As the judgment appealed from provides for no recovery, appellant is not in a position to tender a remittitur. In our opinion the rule pronounced in Texas Employers’ Ins. Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929, has no application in this case.

Believing that the original opinion properly disposed of the case, the appellant’s motion for rehearing is overruled.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    John W. PORTER, Appellant, v. R. E. Dumas MILNER, Appellee.
    No. 16270.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1961.

      Kelly, Morris & Walker, and Jearl Walker, Fort Worth, for appellant.
    Cantey, Hanger, Johnson, Scarborough & Gooch, and J. A. Gooch, Fort Worth, for appellee.
   MASSEY, Chief Justice.

R. E. Dumas Milner sued John W. Porter to enforce the obligations of a contract theretofore entered into between the parties. The obligation sued upon was for the payment of $2,753.02 in Federal Income Taxes levied for the taxable calendar year of 1958.

After the issue was joined both parties moved for summary judgment, and following hearing thereof the motion of plaintiff Milner was granted, that of defendant Porter was denied. The judgment decreed that plaintiff have and recover from the defendant the sum of $2,753.02, plus interest and costs, he having paid the tax upon defendant’s refusing to do so. The defendant appealed.

Judgment affirmed.

The controversy arose out of a contract entered into by the parties on December 26, 1958, whereby the appellant delivered to appellee all the capital stock of a certain life insurance company in exchange for consideration fully delivered and paid by the appellee. A portion of paragraph No. 1 of said contract reads as follows:

“It is further agreed that John W. Porter shall assume and be responsible for all contingent liabilities of The Great Chieftain National Life Insurance Company not reflected by such audit report.”

Said contract further provided in paragraph No. 4:

“That John W. Porter represents that there is no liability of The Great Chieftain National Life Insurance Company other than as shown by the audit report dated December 18, 1958, which report is attached hereto and made a part hereof, and the said John W. Porter will pay any and all income and other taxes which are due and payable for the year 1958, and prior years.”

By virtue of an amendment of a federal statute in 1959 the 1958 tax of The Great Chieftain National Life Insurance Company was calculable as being $2,753.02 greater than it would have been under the statute before the amendment. The parties made no attack upon the propriety of the amendment nor of its application to the 1958 income of the aforesaid company, but for purposes of this case concede that it was properly enacted, and the tax lawfully assessed and paid by ap-pellee.

Although the contract involved was executed on December 26, 1958, appellant predicates his contention of nonliability for the amount sued for on that part of the phrase quoted from the contract which reads “John W. Porter will pay any and all income and other taxes which are due and payable for the year 1958, * * (Emphasis supplied.) As we understand appellant’s contentions they are that the contract was clear and unambiguous and that the foregoing provision meant that he would pay any accrued taxes for 1958 “to date of the contract, December 26, 1958.

Appellee, on the other hand, contends that the contract was clear and unambiguous and that there would be a neces•sary transposition of words so that those reading “which are” in the language quoted would be given the meaning “to become”, the whole material part construed as though it read “John W. Porter will pay any and all income and other taxes Jo become due and payable for 1958”.

We agree that the transposition ■ of the words is proper to be made if the intent of the parties is to be effectuated, .such intent being obvious and certain in ■our opinion. Rules of grammar underlie all legal rules applicable in the construction of contracts. 13 Tex.Jur.2d, p. 310 '“Contracts”, § 133 “Rules of grammar as aid to construction” (10-A Tex.Jur., p. .375, § 182).

A contract made before the expiration of the last day of a calendar year, ■providing for payment of an accruing obligation by one of the parties thereto for •the entire year, would not be subject to the construction that the parties agreed only that the obligation for payment would be calculated to the date of the contract. ■Contrariwise, had the contract provided for payment by one of the parties thereto ■of the amount due and payable on an accruing obligation such would not be subject to the construction that the parties ■■agreed to pay the total amount to become due for the calendar year. The parties having provided for appellant’s payment •of all taxes for 1958, it follows that the language of the contract in the respect -under consideration was grammatically in•ept, requiring the transposition of words •so that the phrase considered, and the ■paragraph in which it appears, be treated .as though it read “John W. Porter will pay any and all income and other taxes to become due and payable for 1958”.

Judgment is affirmed.


author: BOYD, Justice.

text:
    Dr. H. C. ALLISON, Appellant, v. Walker F. MEANS, Appellee.
    No. 16263.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1961.
    Rehearing Denied Jan. 12, 1962.

      Anderson & Anderson, Cleburne, Thompson, Walker, Smith & Shannon, and Wyn-dall R. Johnson, Fort Worth, for appellant.
    W. F. Leigh, Pecos, for appellee.
   BOYD, Justice.

Walker F. Means sued Dr. H. C. Allison for $16,000.00, alleged to he owing as a real estate sales commission, for $16,000.00 exemplary damages, and for $5,000.00 attorney’s fees. There was a jury verdict for $16,000.00 commission, $6,071.00 exemplary damages, and $3,700.00 attorney’s fees. Judgment was rendered accordingly and Dr. Allison appeals.

Appellant alleged that the listing agreement made between the parties did not describe the property for which appellee alleged he procured a purchaser, and that therefore the listing agreement could not be che basis for recovery of a commission since it did not meet the requirements of Articles 3995 and 6573a, Vernon’s Ann.Tex.St.; and that any listing which was made was canceled before the land was sold by appellant .to a prospect allegedly procured by appellee, and which sale is part of the basis of ap-pellee’s claim.

Appellant complains, among other things, of the action of the court in permitting ap-pellee’s request for admissions to be read to the jury as judicial admissions of appellant; in refusing to grant appellant an extension of time in which to answer the request; in refusing to permit appellant to testify as to the facts with reference to any matters set forth in the request; and in refusing to permit cross examination of appellee in reference thereto.

Appellee attempted to deliver the request for admissions to appellant by registered letter. Appellant refused to accept the letter, and it was returned unopened to appel-lee’s counsel. The request attempted to inform appellant that “Each relevant matter of fact, of which an admission as to the truth thereof is hereby requested, shall be deemed admitted in accordance with the provisions of said Rule 169 unless within a period of not more than ten (10) days after the delivery of this instrument containing said request to the said Defendant * * * said Defendant * * * delivers or causes to be delivered to (appellee’s counsel) a sworn statement either denying specifically the truth of each of the respective relevant matters of fact of which an admission is. hereby requested” or giving the reasons why the matters of fact could not be admitted or denied.

Among other contentions, appellant says that the request for admissions failed in several particulars to meet the requirements of Rule 169, Texas Rules of Civil' Procedure, and therefore could not be the basis for holding that the admissions requested were judicially made. In our view of the case we think it necessary to notice , only one of such particulars, and that is the-contention that the rule was not complied' with because the request was not delivered, to appellant’s attorney of record.

Rule 169 provides that “Whenever a party is represented by an attorney of record, delivery of a request for admissions shall' be made to his attorney unless delivery to the party himself is ordered by the court.”

Rule 10 is as follows: “An attorney of' record is one who has appeared in the case, as evidenced by his name subscribed to the pleadings or to some agreement of the parties filed in the case; and he shall be considered to have continued as such attorney to the end of the suit in the trial court, unless there is something appearing to the-contrary in the record.”

This suit was originally filed in the District Court of Reeves County. A plea of' privilege was filed by appellant seeking to have the cause removed to Tarrant County, the county of his residence. An answer was filed, subject to the plea of privilege. The plea of privilege was sworn to by John. F. Tomlin, the affidavit stating that “ * * he is attorney of record for the defendant in the above styled and numbered cause- ; and the pleading was signed: '“John F. Tomlin ATTORNEY FOR DEFENDANT.” The answer was signed: '“Preston & Tomlin, P. O. Box 1028 Pecos, Texas by John F. Tomlin ATTORNEYS FOR DEFENDANT.” The plea of privilege was sustained on February 23, 1959.

On March 19, 1960, appellee’s attorney ■wrote John F. Tomlin, asking whether he would represent appellant in pre-trial matters, such as taking depositions. He wrote with particular reference to the taking of the deposition of Margarito Singh. Appel-lee’s attorney testified that two days later he met Tomlin on the street and that Tomlin “told me that, if I recall correctly, that he did not represent Dr. Allison and that he had no further connection with the case. That is the sum and substance of it.” Ap-pellee's attorney further testified that there was no local counsel for appellant in Fort Worth at that time, “as I understand it.” Tomlin did not participate in the taking of .Singh’s deposition. On May 20, 1960, however, Tomlin did represent appellant in the taking of the deposition of appellee’s wife, ■as a witness in this case.

Since Tomlin had filed the plea of privilege and the answer for appellant, he was an attorney of record; and it was not shown that anything to the contrary appeared in the record. Appellant offered to testify that Tomlin was still representing him through March and April of 1960, and had never been dismissed from the case. On April 7, 1960, the law firm of Christopher & Bailey, by T. S. Christopher, filed an answer for appellant in the District Court of Tarrant County. This was the day on which the postmaster tried to deliver to appellant the registered letter containing the request for admissions. There being nothing appearing of record that Tomlin was no longer an attorney for appellant, and Christopher having filed a pleading for appellant on the day the request for admissions was attempted to be delivered to appellant, it would seem that appellant had two attorneys of record at that time. It is our opinion that appellee did not comply with the provisions of Rule 169, and that therefore appellant cannot be held to have judicially admitted the facts inquired about in the requests.

The facts which were deemed admitted were damaging to appellant’s case. He had denied that the listing card signed by him contained any description of the property, and contended that the paper now attached to the card, containing a detailed description, was not attached when he signed the card, that it had not been filled out by him or signed by him, and that he had never seen it until after the suit was filed. No witness testified that the paper containing a description of the land was filled out or signed by appellant. To be enforcible, a listing contract must be in writing and must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land may be identified with reasonable certainty. Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222; Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568; Wiseman v. Zorn, Tex.Civ.App., 309 S.W.2d 253.

Appellant also alleged and offered to prove that he had canceled, both orally and by letter, whatever listing had been made, and offered a letter from himself to appel-lee, dated October 16, 1957, reading in part as follows: “Therefore, this is to advise you that I will not look to you to continue to try to sell my farm,” which letter was excluded. The facts which were deemed admitted stated that the listing was complete with the description of the land when it was executed by appellant, and that the listing had not been revoked but was in full force and effect when appellant sold the land on January 10, 1958. The jurors were told that such facts were admitted.

We are of the opinion that before admissions requested may be held to have been judicially admitted the provisions of Rule 169 must be complied with. It follows that we think it was error to inform the jury that such facts were admitted, and to exclude appellant’s refutation of such facts, thus denying him the opportunity to present his claimed defense.

The judgment is reversed and the cause remanded.


author: MURRAY, Chief Justice.

text:
    Maria Olga BAZAN, Appellant, v. Marco Antonio GARZA et al., Appellees.
    No. 13844.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1961.
    Rehearing Denied Jan. 3, 1962.
    Bridges & Oxford, Mission, for appellant.
    A. J. Vale, Rio Grande City, Strickland, Wilkins, Hall & Mills, Mission, for appel-lees.
   MURRAY, Chief Justice.

We copy the following statement of the case from appellant’s brief, to-wit:

“This is an appeal from the order of the 92nd District Court of Hidalgo County, Texas, sustaining a plea of privilege by the Defendants to he sued in Starr County, Texas, where they resided. The appellant gave notice of appeal, made the proper appeal bond and this case is properly before this court for review of the errors committed therein.
“This suit was filed in January 1960 by MARIA OLGA BAZAN against MARCOS ANTONIO GARZA and certain others of his family, alleging in substance that the defendant, Marcos Antonio Garza and the Plaintiff came to Hidalgo County on or about August 16, 1959 from Starr County, Texas, where all the parties resided and while here in Hidalgo County, Texas, the Defendant named proposed marriage to the Plaintiff and proposed that they be married on the next day, which would be Monday, the proposal being made on Sunday in Hidalgo County, Texas. After some discussion the Plaintiff accepted said proposal and the parties went back to Starr County for a short stay of a few minutes and then came back to Hidalgo County. The Defendant, Marcos Garza, while in Hidalgo County, Texas, proposed to the Plaintiff that since they were going to be married tomorrow, that they go across the river into Mexico and spend the night in Reynosa as husband and wife and after some discussion the Plaintiff agreed to such an .arrangement and the Plaintiff and the Defendant, Marcos Antonio Garza, went across the river at Reynosa, which is across the river from Hidalgo in Hidalgo County, Texas; the crossing of the river being made from Hi-dalgo County into the Republic of Mexico and that they spent the night in Reynosa, Mexico; Defendant, Marcos Garza, having rented a room as husband and wife and the parties •sleeping together as husband and wife and having intercourse with each other that night several times.
“The next day they came back to Hidalgo County from Reynosa and from thence went to Starr County and that they have not been together since. That the Defendant has refused to see the Plaintiff anymore and that as a result of their staying together that night in Reynosa, there was born to the Plaintiff a child and the Defendant, Marcos Garza, is the father thereof.
“The grounds for holding venue in Hidalgo County, Texas are by virtue of subdivisions 9 and 29-A [29a] of Article 1995 of the Revised Civil Statutes of Texas; there being no issue as to whether or not the Defendants reside in Starr County, Texas; it being admitted that they do and so alleged in the Plaintiff’s petition.”

The trial court in its order sustaining the plea of privilege of appellees made the following finding:

“ * * * the Court having considered such pleas and the controverting plea filed in said cause by the plaintiff, together with argument of counsel for all parties made in open Court which argument has been transcribed by the Court Reporter, certified to by him, approved by the Court and ordered filed in said cause and made a part hereof, which argument included but is not limited to the statement made in open Court by attorney for plaintiff that plaintiff’s cause of action was one for breach of promise and that venue was sought to be maintained in Hi-dalgo County on the basis of the promise of marriage having been made in said County, together with the additional statements by counsel for the plaintiff that if defendants’ interpretation of Article 1995, Revised Civil Statutes of Texas is correct, then plaintiff’s pleadings are no good and that there would be no need of hearing evidence on the plea of privilege and the controverting plea since the only order the Court could enter would be an order sustaining said plea of privilege, is of the opinion that the pleas of privilege should be sustained.”

No statement of facts was filed herein and it appears from the above statement in the judgment that no evidence was offered. It further appears that appellant was relying upon Subdivisions 9 and 29a of Art. 1995, Vernon’s Ann.Civ.Stats., commonly known as the Venue Statute. It is well settled law in this State that a plaintiff seeking to maintain venue in a county other than that of the defendant’s domicile, by virtue of Subdivisions 9 and 29a of Art. 1995, supra, must introduce evidence to show by a preponderance of the evidence that the trespass upon which he bases his cause of action was committed in the county where the suit was filed. The record shows that appellant did not even offer to introduce evidence to show that the trespass was committed in Hidalgo County, and in effect invited the court to render the judgment which it did render.

Under such circumstances, the judgment of the court sustaining appellees’ plea of privilege to be sued in the county of their residence will be in all things affirmed.


author: COLEMAN, Justice.

text:
    S. M. WILLIAMS, Appellant, v. Phil D. MILLIGER, Appellee.
    No. 13807.
    Court of Civil Appeals of Texas. Houston.
    Nov. 30, 1961.
    Rehearing Denied Jan. 11, 1962.
    Stone & Werlein, Richard 0. Werlein,. Houston, for appellant.
    Solito, Vetrano & Murr, Edward G-Murr, Houston, for appellee.
   COLEMAN, Justice.

S.M. Williams, defendant in the trial court, appeals from a judgment in favor of Phil D. Milliger, rendered in a trial before the court without a jury in an action growing out of an account rendered for professional services. The parties will be referred to as they were in the trial court.

Plaintiff is a certified public accountant. He performed certain professional services for defendant in auditing the books of businesses conducted by defendant. Pri- or to February 10, 1958 defendant was indebted to plaintiff in the sum of $1,288.60. On that date an order confirming a composition with the creditors of S. M. Williams entered into in the course of bankruptcy proceedings was confirmed by the Referee in Bankruptcy. As a result of such composition plaintiff was paid the sum of $257.-72 and the balance of $1,030.88 was barred and discharged. Thereafter, in the early part of June, 1958, defendant engaged plaintiff to do additional auditing for him. On June 23, 1958, defendant sent plaintiff a check for $485.00. On July 21, 1958, plaintiff sent defendant a bill for $563.00 on account of the work which he had performed. In keeping his books, plaintiff kept only one account which showed both the barred debt and the amount charged for the additional work with credit being allowed on the total amount for the two payments. When plaintiff demanded payment of the balance, defendant tendered $28.00 which he contends to be the correct balance due. This amount was deposited in the registry of the court.

Plaintiff went to trial on his first amended petition seeking judgment for $563.00, interest and attorney’s fees. Judgment was rendered for plaintiff in the sum of $513.00 plus interest and attorney’s fees.

Defendant contends that the trial court erred in not giving him credit on the $563.00 account for the payment of $485.00 made in June, 1958; in awarding attorney’s fees and in failing to dispose of the $28.00 tendered to plaintiff and deposited in the registry of the court.

Plaintiff testified that he told defendant that he could not undertake any new work for him without assurance of being paid for the “back work”; that he relied upon the promise that he would be paid; that he had never charged or collected a fee in ■advance; and he denied telling defendant that he would require some money because of the fact that he had been “stuck” in the bankruptcy matter and wanted some assurance of being paid for future work. He testified that he had been paid $50.00 on the $563.00 bill and that the balance of $513.00 had not been paid.

Defendant testified that he told plaintiff he would pay him some money before he should proceed with the new work. Plaintiff’s testimony about this conversation was to the effect that defendant told him he would pay him some money on the old account. There is no evidence that defendant, either in writing or orally, designated the application of the $485.00 check at the time he sent it to plaintiff; however, he did state that he told plaintiff when the new work was discussed that when he got some money he would give him some to apply on the fee for the new work. Defendant admitted that plaintiff told him he would not do any more work for him unless he was paid something on the old bill, although later in his testimony he denied that plaintiff made that statement. Defendant testified that there was only one conversation concerning the new work. The testimony raised an issue of fact as to whether or not the defendant directed that the payment be applied to the new debt. It is implied in support of the judgment that the court found against the defendant on this issue since the court made no specific finding on such issue and none was requested. Ridgell v. Farmers’ National Bank, Tex.Civ.App., 275 S.W. 858; Andrews v. Key, 77 Tex. 35, 13 S.W. 640; Kennedy v. Kennedy, 210 S.W. 581; Tex.Civ.App., error ref.

There was a fact issue as to whether or not the parties agreed that defendant would make a payment on the debt barred by the bankuptcy proceedings and thereby impliedly directed the application of the payment made to such purpose. Copes v. Perkins, 6 Tex. 150.

While the trial court’s findings of fact and conclusions of law included no specific finding on this issue, one of the findings of fact was that “All lawful offsets have been allowed by plaintiff for payments made by defendant on his account.” Defendant contends that there was no evidence to support this finding. The trial court further found that defendant made a payment of $50.00 on August 8, 1959, “to plaintiff to apply on plaintiff’s statement for services rendered, leaving a balance of Five Hundred and Thirteen and No/100 ($513.00) Dollars.” It would be implied from these findings that the court further found that the $485.00 payment was made in accordance with prior agreement as a voluntary payment on the previous indebtedness barred by the bankruptcy proceedings. These findings and the implied subsidiary findings are supported by sufficient evidence. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Century Indemnity Co. v. First Nat. Bank of Longview, 272 S.W.2d 150, Tex.Civ.App.; Tijerina v. Botello, 207 S.W.2d 136, Tex.Civ.App.; Wentz v. Hancock, 236 S.W.2d 175, Tex.Civ.App., error ref.

Defendant’s contention that the trial court erred in awarding an attorney’s fee is not well founded. This contention is based on the theory that the plaintiff sued on an account, but not on a sworn account, and that Article 2226, Vernon’s Ann.Rev.Civ.St., is not applicable. We think plaintiff’s-petition, and the evidence produced at the trial, show that the cause of action was for labor or services rendered. Both the pleadings and evidence warranted the trial court in awarding an attorney’s fee as authorized by that statute.

We sustain defendant’s contention that the Trial Court should have deducted the $28.00 deposited in the registry of the court from the judgment rendered, and should have ordered that amount paid by the Clerk to the plaintiff. Manhattan Life Insurance Co. v. Stubbs, 234 S.W. 1099, Tex.Com.App. Since the trial court had the requisite jurisdiction to make such an order and had the duty to do so in order to finally settle this matter, pursuant to our duty to render such a judgment as should have been rendered by the trial court, the judgment of the trial court will be modified by including therein an order that the District Clerk of Harris County, Texas, pay over to Phil D. Mil-liger the sum of Twenty-Eight and No/lOO* ($28.00) Dollars deposited in the registry of the court by S. M. Williams and the-judgment rendered against S. M. Williams-in the sum of $513.00 is hereby changed so as -to read $485.00, no other provisions-of said judgment being changed. The-costs of this appeal will be taxed equally against appellant and appellee.

Modified and affirmed.

WERLEIN, J., not sitting.


text:
    MEGARGEL DRILLING COMPANY, Appellant, v. CITY NATIONAL BANK IN WICHITA FALLS, Texas et al., Appellees.
    No. 16259.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 17, 1961.
    Rehearing Denied Jan. 5, 1962.

      Kouri, Banner & Darden, and Jack G. Banner, Wichita Falls, for appellant.
    Fillmore, Schaeffer & Fillmore, and Roy Schaeffer, Wichita Falls, for appellee City National Bank in Wichita Falls.
    Anderson & Latham, and Henry J. Anderson, Wichita Falls, for appellee Sid Taylor.
   BOYD, Justice.

Sid Taylor sued John D. Myers in Cause No. 67045-C and filed an application for writ of garnishment against City National Bank in Wichita Falls. The writ was issued and served on January 6, 1961. On January 11, Taylor filed a petition for authority to amend his application for garnishment and at a hearing which was set for and held January 13, an order was entered of record authorizing the filing of an amended application. An amended application for garnishment was filed on January 16.

On January 23, the bank answered, admitting that it held as escrow agent certain funds payable to Myers, alleged that Megargel Drilling Company had on January 9 caused a writ of garnishment to be served upon it in a suit against Myers, being Cause No. 67054-C; and prayed that the two suits be consolidated and that the garnishee be protected in the determination of the priority of claims.

Vincent Murphy and F. L. Livingston, doing business as Megargel Drilling Company, filed a plea of intervention in Taylor’s suit, alleging that they were interested in the funds held by the bank, and moved that Taylor’s garnishment be quashed on the ground that there was a fatal defect in the application for garnishment, and for that reason the court had no jurisdiction, and could not authorize the amendment. No attack was leveled at the validity of the debt underlying Taylor’s garnishment proceedings or upon the propriety of a garnishment.

Taylor moved to dismiss the intervention, alleging that it had been filed without prior permission of the court, that it would delay Taylor’s action, and that interveners were without right to contest Taylor’s claim to the fund.

On February 3, a hearing was had, at which Taylor, the bank, and the inter-veners appeared by counsel, and Taylor’s motion to dismiss the intervention was sustained. The court found that Taylor’s garnishment lien was prior and superior to Megargel Drilling Company’s garnishment lien, and entered judgment for Taylor against the garnishee for the funds held by it and belonging to Myers. On the same day the court entered an order in Cause No. 67054-C, Megargel Drilling Company v. City National Bank, finding that the garnishment lien of Sid Taylor was prior and superior to the garnishment lien of interveners. From the judgment in Taylor’s case the interveners have appealed. Neither Myers nor the bank perfected an appeal.

Taylor’s original application for garnishment begins: “NOW COMES Sid Taylor, Plaintiff in the above entitled and numbered cause, and makes application for the issuance of a writ of garnishment * * and being duly sworn, says * * The application was signed by Steve Latham as attorney for the plaintiff. The officer’s certificate was to the effect that the application was sworn to by Sid Taylor. The writ was issued and served on the basis of the original application.

Taylor’s petition to correct the application for garnishment prayed for authority to change the allegation: “Now comes Sid Taylor, Plaintiff in the above entitled and numbered cause and makes application for the issuance of a writ of garnishment against the City National Bank in Wichita Falls, Texas as garnishee, and, being duly sworn says,” to read: “Now comes Sid Taylor, Plaintiff in the above entitled and numbered cause, by and through Steve Latham, his attorney of record of Wichita Falls, of the County of Wichita, Texas and who being duly sworn says that he is attorney of record for Sid Taylor, is duly qualified and authorized to make this affidavit and is fully cognizant of the facts herein set out and makes application for the issuance of a writ of garnishment against the City National Bank in Wichita Falls, Texas, as garnishee * * The petition also prayed that the officer’s jurat to the application which read, “Sworn to and subscribed before me by the said Sid Taylor * * * ” be changed to read: “Sworn to and subscribed before me by the said Steve Latham, attorney of record for the Plaintiff, Sid Taylor * * The court granted the authority to amend the application for garnishment in the respects as prayed for. Neither the defendant Myers nor the bank questioned the sufficiency of the application or the amendment procedure.

Appellants say that no evidence was offered at the hearing when appellee was granted permission to amend his application for garnishment; appellee says evidence was offered; and the court did not say, but did find that the amendment would be in the furtherance of justice. Rule 679, Texas Rules of Civil Procedure, provides that clerical errors in the affidavit for garnishment may be amended on application in writing, in such manner as the judge shall authorize by an order entered in the minutes. Whether the court found that •the officer actually administered the oath to Steve Latham, the attorney, and the insertion of Sid Taylor’s name in the jurat and in the application itself resulted from clerical errors, cannot be determined from the record. However, since we believe for another reason the judgment must be affirmed, it is unnecessary to consider whether the court properly permitted the amendment.

A question for determination is whether appellants had a right to question the sufficiency of Taylor’s application for garnishment, or the manner of its amendment.

In Reinertsen v. E. W. Bennett & Sons, Tex.Civ.App., 185 S.W. 1027, 1029, it is said: “The question narrows itself down to this: Can Bennett & Sons and Winkler, creditors of the Baker Manufacturing Company, with garnishments subsequent to Reinertsen, and who- were impleaded in Cause No. 1140 by the garnishee, question the sufficiency of Reinertsen’s garnishment proceedings, or is the right to question the same limited to the original defendant, Baker Manufacturing Company, and the garnishee, Zimmerman Land & Irrigation Company ? * * * The rights of an intervener are limited. If, because of a jurisdictional matter, the fund is not before the court, the intervener cannot come in. The court’s jurisdiction of the prop-' erty or fund must therefore be conceded, for he gets his right to intervene because of the fact that the fund or property is before the court. So it follows that to say that, because of the absence or an insufficient affidavit or bond, the court had no jurisdiction of the fund is equivalent to saying that there has been no intervention. * * * So we conclude that the right to-ábate an attachment or garnishment on account of defects in affidavit, bond, etc., irregularities, is restricted to defendants, and is not allowed to creditors subsequently taking out writs. Goodbar, White & Co. et al. v. Bank of S. Springs, 78 Tex. 461, 14 S.W. 851.”

We think appellants were not in a position to urge that the garnishment be quashed.

The judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    CITY OF LUBBOCK, Appellant, v. Burnett J. THIEL et al., Appellees.
    No. 7086.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1961.
    Rehearing Denied Jan. 8, 1962.
    Evans, Pharr, Trout & Jones, Lubbock, for appellant.
    Crenshaw, Dupree & Milam and Ben-jamine Kucera, Lubbock, for appellees.
   NORTHCUTT, Justice.

This is a statutory condemnation proceeding brought by the City of Lubbock against Burnett J. Thiel, et al. and involved only the value of certain easements over and across certain portions of defendants’ farm land, and the incidental damages to the remainder -of the 320 acre farm. Upon a verdict on special issues, the court rendered judgment for the defendants in the amount of $6,094.50 for the 4.063 acre easement, known as tract A, $15,960.00 for the 13.3 acre easement adjoining tract A and known as tract B, and a judgment for $37,830.00 for incidental damages to the remainder of defendants’ 320 acre farm, making a total verdict for $59,884.50. From that judgment the plaintiffs perfected this appeal. The parties will hereafter be referred to as plaintiff and defendant as they were in the trial court.

The plaintiff makes no complaint regarding the entry of judgment as to the amounts awarded for tracts A and B. This appeal is confined solely to the awarding of incidental damages to the remainder of the farm known as tract C consisting of 302.64 acres.

The plaintiff presents this appeal upon two points of error, contending that the findings of the jury that the 302.64 remaining acres of defendants’ farm was damaged $125.00 per acre, since there was no evidence to support such findings, or at least there was insufficient evidence to support such finding, and that such finding of the jury was contrary to the overwhelming weight of the evidence.

It was stipulated that the City of Lubbock had the right to condemn the easement in question. The only question involved in this appeal is whether there is any evidence or at least sufficient evidence to support the finding of the jury that the 302.64 remaining acres was damaged $125.00 per acre and if such finding was contrary to the overwhelming weight of the evidence. In determining these matters, we must consider and weigh all of the evidence in the case and set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the record contains some evidence of pror bative force in support of the verdict. We must consider the evidence supporting the verdict along with that contrary to the verdict. King v. King et al., 150 Tex. 662, 244 S.W.2d 660.

We think the rule is properly determined in the case of Brazos River Conservation and Reclamation Dist. v. Costello et al., Tex.Civ.App., 169 S.W.2d 977, writ refused. W. M. where it is stated:

“[7] The rule is well established that where a part only of a tract of land is taken, the owner is entitled to be paid for the value of the part so taken plus any diminution in value of the remainder of the tract. 16 Tex.Jur. 986.
“[8] In order to enable the jury to determine the depreciation of the remainder, the parties have the right to introduce evidence of everything which would tend to affect the value of the land in the estimation of a proposed purchaser or would tend to make it more or less valuable to the present owner. 16 Tex.Jur. 991; Parker County v. Jackson, 5 Tex.Civ.App. 36, 23 S.W. 924.”

Several witnesses testified, after being properly qualified to so testify, that that portion of the land not taken in the easement proceeding was greatly damaged. The amounts varied according to the testimony of the different witnesses from $87.50 to $200.00 per acre. Two witnesses, after being properly qualified to so testify, testified that that portion not taken in the easement proceeding was not damaged at all. Some of the witnesses gave as their reason that in building up a road on that part covered by the easement caused the land to wash; that since the land had seven irrigated wells and some four or five miles of underground irrigation pipes that it could not be irrigated as before; spreading of weeds over the land causing extra work as this property was used for raising vegetables; could not spray all the crops with those structures upon a portion of the easement and because of the high voltage wires buried on the easement.

We cannot agree with appellant’s contention that there is no evidence but think there is sufficient and also full and satisfactory evidence to support the findings of the jury. We have carefully considered all of the evidence and we do not think the holdings of the jury is against the great weight and preponderance of the evidence as to be manifestly unjust, but on the contrary, the great weight and preponderance of the evidence sustains the holding of the jury. We know of no measure of the weight of the evidence (unless the witnesses on the evidential facts are counted) other than the feeling of probability which it engenders. The problem of proof cannot be resolved scientifically by quantitative analysis. Preponderance is not alone determined by the number of witnesses testifying to a particular fact or state of facts. It may occur that the statement, or the superior knowledge of the subject matter testified to, of one or a few witnesses may be of more importance, and be relied upon with a greater degree of assurance than that of greater number; and the testimony of the witnesses are oftentimes strengthened or weakened by other facts and circumstances disclosed by the evidence.

From what has been said, we cannot say the jury was not justified in finding as it did. We might not have found as much damages as that found by the jury but the amount of damages, where there was evidence to support it, was their prerogative. Judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    Newell Gray ATKINS, Appellant, v. P. N. DAVIS et ux., Appellees.
    No. 16274.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1961.
    Douglas E. Bergman and John W. Hicks, Jr., Dallas, for appellant.
    Allen, Gambill & Gambill, and L. L. Gam-bill, Fort Worth, for appellees.
   RENFRO, Justice.

On August 29, 1960, Mrs. Betty Jean Atkins died in the home of her parents, Mr. and Mrs. P. N. Davis, Fort Worth, Texas, and was interred in a cemetery in Fort Worth on September 1, 1960.

The above allegations were made in a suit filed in the county court on January 9, 1961, by Newell Gray Atkins, surviving spouse of the deceased, against the Mount Olivet Cemetery Association, in which the plaintiff sought to disinter the body of the deceased and remove same to Port Arthur. He requested the court to compel the defendant to consent to the disinterment and removal of the body.

Mr. and Mrs. Davis, parents of the deceased, were cited to answer as defendants.

The Cemetery Association, having been informed of the controversy between plaintiff and the Davis’ and facing legal action by Atkins if it did not consent to the disinterment and by the Davis’ if it did so consent, prudently adopted a neutral position and plead its willingness to abide by judgment of a court of competent jurisdiction. The Davis’ filed a plea to the jurisdiction of the county court, which was sustained.

The plaintiff contends the county court had jurisdiction by virtue of Art. 912a-22, Vernon’s Ann.Civ.St., wherein it is provided that if the consent of a surviving spouse or of the cemetery association cannot be obtained, permission of the county court of the county where the cemetery is situated shall be sufficient to permit removal of the remains of a deceased person.

While the right to remove a .body remains with the surviving spouse, the right is a qualified one, and removal shall not be permitted except under circumstances indicating a necessity or for compelling reasons therefor. Curlin v. Curlin, Tex.Civ.App., 228 S.W. 602; Fowlkes v. Fowlkes, Tex.Civ.App., 133 S.W.2d 241. The next of kin have some rights and owe some duties under certain conditions. Foster v. Foster, Tex.Civ.App., 220 S.W. 215

The act referred to above does not purport to confer jurisdiction in the county court to determine such rights.

The district court has original jurisdiction over all causes of action for which a remedy or jurisdiction is not provided by law or the Constitution. Article 1909, V.T. C.S.

Since the district courts have original jurisdiction and no other court has been given the jurisdiction to determine controversies such as the one herein involved between the surviving spouse and the next of kin concerning the right to disinter and remove a dead body, such causes are triable in the district court. 17 Tex.Jur.2d 486, § 2; Burnett v. Surratt, Tex.Civ.App., 67 S.W.2d 1041, error refused.

The plea to the jurisdiction filed by the Davis’ was properly sustained. The judgment of the trial court is affirmed.


text:
    McCRELESS SHOPPING VILLAGE, INC., Appellant, v. Dr. Kenneth G. BURTON, Appellee.
    No. 13839.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1961.
    Rehearing Denied Jan. 10, 1962.

      Boyle, Wheeler, Gresham, Davis & Gregory, A. W. Worthy, San Antonio, for appellant.
    Roger W. Wooldridge, San Antonio, for. appellee.
   MURRAY, Chief Justice.

McCreless Shopping Village, Inc., brought this suit against Dr. Kenneth G. Burton, seeking to recover $2,500.00, together with interest and attorney’s fees, based on a written two-year lease contract dated May 2, 1955. Dr. Burton relied upon an alleged new agreement cancelling this debt.

The trial was to a jury, and the jury found (1) that the parties mutually agreed orally that the $2,500.00 obligation was canceled; (2) that Dr. Burton did not agree to do something of material value and benefit for the plaintiff as an inducement for the cancellation; (3) that Dr. Burton remained in the Medical Center throughout the remainder of the lease in reliance on the agreement, and (4) that Dr. Burton was insolvent at the time the oral agreement was made. The trial court entered judgment for Dr. Burton on the verdict of the jury and McCreless Shopping Village, Inc., has prosecuted this appeal.

Appellant’s first contention is in effect that the alleged oral agreement was void because in violation of Subd. 4 of Art. 3995, Vernon’s Ann.Civ.Stats., providing as follows :

“Art. 3995. Writing required
“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof,, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *
“4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year; * *

It is undisputed that this oral agreement undertook to change a written contract for the lease of real estate for a term of two years. The rule governing this situation is well stated in Minchen v. Vernor’s Ginger Ale Co. of Houston, Inc., Tex.Civ.App., 198 S.W.2d 613, 615, as follows:

“The general rule applicable to the modification of contracts within the Statute of Frauds is that such contracts cannot be modified by subsequent parol agreements between the parties. Vernon’s Ann.Civil Statutes, Article 3995, subd. 4. However, an exception to the rule exists where the party relying on the oral agreement has performed his undertaking thereunder so that a refusal to enforce the modified agreement would result in wrong to him. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Lechenger v. Merchants’ Nat. Bank, Tex.Civ.App., 96 S.W. 638; Adams v. Hughes, Tex.Civ.App., 140 S.W. 1163.”

There can be no question as to the fact that the original lease was in writing and met all the requirements of Subd. 4, Art. 3995, supra, and the only question is, “Was the alleged oral agreement valid as an exception to the general rule that such contracts cannot be modified by a parol agreement?

It might be well to here make a rather full statement of the facts in this case. Appellant and appellee entered into a written lease whereby appellee leased from appellant a portion of a medical center owned by appellant, for a period of two years, with option of renewal for another two years. Appellee agreed to pay a stipuT lated monthly rental for the use of this portion of the medical center and, in addition thereto, further agreed as follows:

“All interior partitions, utility outlets and plumbing, or other additions or alterations identified on the plans, 'Exhibit A’, and marked or referred to as ‘Tenant’, are to be installed by Lessor at the expense of and for the account of Lessee at a cost to Lessee of the agreed sum of $2,500.00, to be paid by Lessee monthly in addition to the other rentals provided for herein, all as hereinafter provided for.”

In other parts of the lease it was agreed that this $2,500.00 was to be paid by ap-pellee to appellant at the rate of $100.00 per month beginning August 1, 1955. Ap-pellee occupied the premises for more than four years, but never paid the $100.00 per month on the $2,500.00 indebtedness.

Appellee contends that in July, 1955, before these payments were to start in August, 1955, he told T. S. McCreless, president of appellant, that he could not and would not pay the $2,500.00; that McCreless had leased space in the medical center to two other physicians in violation of his promise to appellee not to do so; that ap-pellee had leased space sufficient for two doctors and had planned to take another doctor in with him, but would not be able to do so now that there were two other physicians in the building; that he was insolvent and owed the bank $10,000.00; that he would be forced to move out and take bankruptcy or something if McCreless insisted upon his paying the $2,500.00; whereupon McCreless agreed with him orally that the $2,500.00 would be forgotten. Thereafter appellee met his other payments and stayed in the medical center for more than four years. The jury found the oral agreement was made, but that appellee did not agree to do something of material value as an inducement for the cancellation of the debt. This raised the question of want of consideration for the oral agreement of cancellation. The jury was not asked if appellee agreed to refrain from the doing of something of a material value as an inducement for the cancellation. We must presume that the trial court in rendering judgment for appellee found that there was consideration for the oral agreement of cancellation. The evidence would support an implied finding that as a consideration for such oral agreement appellee agreed not to move out of the medical center, and not to take bankruptcy. This would be a sufficient consideration. Rule 279, Texas Rules of Civil Procedure; Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822, 172 A.L.R. 707.

It now appears that appellee lived up to his part of the agreement; he did not move out, did not take bankruptcy, and continued to stay on and keep his rent paid in the new amount agreed upon. He has completed his part of the agreement, and it is too late for appellant to repudiate the oral' agreement and for the first time demand that the $2,500.00 be paid with interest and attorney’s fees.

Minchen v. Vernor’s Ginger Ale Co. of Houston, Inc., supra, is on all fours with this case, and for the reasons given therein, and upon the authorities there cited, we affirm the judgment of the trial court.


author: POPE, Justice.

text:
    A. A. MOORE, Appellant, v. Mrs. Ora Lorraine BARLOW, Appellee.
    No. 13834.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 22, 1961.
    Rehearing Denied Dec. 20, 1961.

      Wood & Boykin, Robert C. Wolter, Corpus Christi, for appellant.
    King, Anderson & Porter, William R. Anderson, Jr., Corpus Christi, for appellee.
   POPE, Justice.

This is a suit for conversion. A. A. Moore sued Mrs. Ora Lorraine Barlow, a widow, and alleged that her husband, prior to his death converted some oil field equipment. The jury found that plaintiff owned the equipment; that Charles Barlow, defendant’s deceased husband, converted it on March 28, 1958, and that its value was $6,400.00. The court granted judgment notwithstanding the verdict. Since there was evidence in support of the findings, the judgment will be reversed and rendered.

Moore testified fully about his ownership. He stated that he had an oil lease on the Barlow premises and that he also had purchased the salvage rights from Cullen W. Briggs, J. B. Shelton and R. J. Timpte, the former owners. He testified that he made the trade with Timpte, who died, and that he then completed that part of the transaction with Timpte’s widow. There was proof in support of the finding of ownership. First National Bank of Colorado v. Brown, 85 Tex. 80, 23 S.W. 862.

Plaintiff proved conversion. He testified that he sent his agent to the lease premises on March 28, 1958, to begin moving the equipment. He had previously moved a separator without incident. Mr. Barlow stopped plaintiff’s agent and told him, “Well, I have a shotgun that says you are not going to take it off.” Plaintiff’s agent then left, and plaintiff did not again return to the premises. This evidence and other testimony support the finding of conversion. Barlow’s statement was the exercise of dominion over the property. It was a repudiation of the owner’s rights, and a conversion. Gulf, C. & S. F. R. Co. v. Buckholts State Bank, Tex.Com.App., 270 S.W. 1008; Pittman v. Fort Worth Warehouse & Storage Co., Tex.Civ.App., 258 S.W. 1105; Crawford v. Thomason, 53 Tex.Civ.App. 561, 117 S.W. 181. Plaintiff was under no duty to meet the threat of force with force. Sinclair v. Stanley, 69 Tex. 718, 7 S.W. 511, 518.

Mrs. Barlow argues that Moore’s oil lease for the premises contained a clause which required him to move the equipment within ninety days after the end of the lease. The lease expired in January, 1959, for non-payment of rentals. In November, 1959, Mrs. Barlow sold the equipment. It is true that Moore did not return to the property at the end of the lease. He did not ever return after he was refused the right to move it on March 28, 1958. Moreover, Mrs. Barlow is right when she says that the property was hers when she sold it in November of 1959. It was hers, however, because Mr. Barlow had converted it in 1958, not because Mr. Moore did not return to the premises to see if he could move what had already been converted from him. He stood on the conversion which occurred in March, 1958, and that was his right.

Mrs. Barlow also argues that no judgment can be rendered against her for a conversion by her husband, now deceased, because she was sued individually and not as independent executrix. The proof shows that she was the independent executrix, that there were no debts at the time of her husband’s death, that the estate was fully administered, and that she was the sole devisee of a sizeable estate greatly in excess of the amount here involved. Those facts support a judgment against her for his conversion. Cook v. Baker, Tex.Com.App., 45 S.W.2d 161, 165; City of Fort Worth v. Banner, Tex.Civ.App., 328 S.W.2d 239, 241; 19 Tex.Jur.2d, Decedents’ Estates, § 959; 14-A Tex.Jur., Decedents’ Estates, § 815.

The findings were supported by the'evidence and the court should have rendered judgment on the verdict. The judgment is reversed and here rendered in favor of plaintiff, Moore, for $6,400.00.

On Motions for Rehearing.

Defendant urges, in her motion for rehearing, that our statement in the opinion that plaintiff moved the separator prior to March 23, 1958, is in error. She calls our attention to plaintiff’s pleadings and the testimony of several witnesses who testified that plaintiff moved the separator after that date. The statement is evidentiary and does not alter the jury findings which are supported by evidence and which control this case. We overrule defendant’s motion for rehearing.

Plaintiff calls our attention to his prayer for recovery of interest after conversion and before judgment. On the authority of Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, plaintiff is entitled to recover interest before judgment. Our judgment is accordingly corrected.


author: RENFRO, Justice. MASSEY, Chief Justice

text:
    WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. CHILDS-BELLOWS, Appellee.
    No. 16258.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 8, 1961.
    Rehearing Denied Jan. 12, 1962.

      Leachman, Gardere, Akin & Porter, and Gordon H. Rowe, Jr., Dallas, for appellant.
    Spurlock, Schattman & Jacobs, and Kenneth M. Cole, Jr., Fort Worth, for ap-pellee.
   ON MOTION FOR REHEARING.

RENFRO, Justice.

The appellant’s motion for rehearing is granted and our opinion of November 3, 1961, is hereby withdrawn.

The question before us is whether the trial court erred in holding that Childs-Bellows was entitled to indemnity from Westinghouse Electric Corporation.

The case was tried before the court on the pleadings and written stipulations only.

The appellee, Childs-Bellows, was general contractor for the construction of a new building for the First National Bank in Fort Worth. Appellant, Westinghouse Electric Corporation, was subcontractor for installation of elevators in the building. Childs-Bellows and Westinghouse entered into a written contract which provided in part:

“1. Statement of the Work:
"* * * * * *
“(b) Subcontractor shall furnish all of the labor, material and equipment necessary to accomplish the following (hereinafter referred to as ‘the Work’) :
“High Rise Elevators 1 to 6 inclusive and all of the Escalators, all in accordance with the requirements of the Plans and Specifications for the sum of $600,858.00.
"* * * * * *
“6. Indemnity Agreements.
"* * * * * *
“(b) Subcontractor agrees to perform the Work in a good and workmanlike manner and in accordance with the provisions of the General Contract, and with the provisions of this Subcontract and in accordance with all safety rules and regulations set forth in the General Contract, or issued by Contractor, and in accordance with any and all laws, rules or regulations issued by any governmental authority having the authority to control the manner or method of carrying out the Work. Subcontractor further agrees that if the property of any person, firm or corporation, including that of Contractor, is lost, damaged, or destroyed while on the job site and such loss, damage or destruction is caused by, results from, or arises out of, the doing, or the method or manner of performance of the Work, or, is due to or results from, or arises out of, the failure of Subcontractor to do, or Subcontractor’s omission to do, anything in connection with the Work, or required by this Subcontract, Subcontractor shall indemnify and save harmless Contractor from any and all such loss, damage or destruction. Subcontractor further agrees to and shall indemnify and save harmless Contractor from and against any and all loss, claim, demand, and suit for damage, including death and personal injury, growing out of, or incident to or resulting from the performance, or failure to perform the Work or the provisions of this Subcontract(Emphasis supplied.)

During the course of the Work, two employees of Westinghouse, in separate accidents, while in the course and scope of their employment, in furtherance of the Work, were injured as result of being struck by falling objects. Both were working inside an elevator shaft when injured. The injuries were the results of negligence on the part of employees of Childs-Bellows. Both injured workmen made claims against Childs-Bellows for damages. Childs-Bel-lows and its agent, Liberty Insurance Company, together with Liberty Mutual Insurance Company, agent for Westinghouse, reached a compromise agreement with the workmen, whereby they received an aggregate of $8,775.00. Both compromise agreements were made in good faith and were reasonable and prudent under the circumstances.

Subsequently, Childs-Bellows made demand upon Westinghouse for payment of the above sum under the provisions of the indemnity agreement. Westinghouse refused.

Westinghouse contends the indemnifying agreement covered only losses occasioned by its negligent acts and did not cover losses occasioned by negligent acts or omissions attributable to appellee.

Childs-Bellows relies upon the holding in Mitchell’s, Inc., v. Friedman, 157 Tex. 424, 303 S.W.2d 775, wherein the court said: “It is not necessary * * * for the parties to say in so many words that they intend to protect the indemnitee against liability for negligence. An obligation to hold harmless from claims, liability or damage resulting from a specified operation or instrumentality will be enforced in accordance with its terms even though the indemnitee may thereby be relieved of the consequences of his own negligence.”

In the instant case, however, in view of the provisions of the indemnity agreement, it is clear that indemnity was intended to extend only to injuries to persons growing out of or incident to or resulting from performance, or the failure to perform, on the part of Westinghouse, the work of installing the elevators. The agreement does not show an intent by the parties to indemnify Childs-Bellows for injuries to persons resulting from work which was under the exclusive jurisdiction of Childs-Bellows as general contractor. The injuries sustained by the Westinghouse employees were not injuries growing out of any work undertaken by Westinghouse but, according to the stipulations, were due solely to negligence of employees of the general contractor, Childs-Bellows, in work which in so far as the stipulations show had no connection whatever with the installation of the elevators, and work with which Westinghouse had no connection.

For a case closely in point, see Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35.

Since the indemnity agreement did not by words protect Childs-Bellows against its own negligence and since the stipulations failed to show that the injuries resulted from “a specified operation or instrumentality", Childs-Bellows is not entitled to indemnity.

The judgment of the trial court is reversed and judgment here rendered that Childs-Bellows take nothing.

Reversed and rendered.

MASSEY, C. J., dissents.

DISSENTING OPINION ON MOTION FOR REHEARING.

MASSEY, Chief Justice

(dissenting).

I would affirm the judgment of the trial court.

In view of the language of the Supreme Court, quoted in the majority opinion from the case of Mitchell’s, Inc. v. Friedman, I would hold that the parties contracted for Childs-Bellows to be indemnified as applied to the $8,775.00 paid.


author: MONTGOMERY, Judge.

text:
    E. H. SOLTER, Appellant, v. SANDY VALLEY GROCERY COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1961.
    Creech & Cox, Ashland, for appellant.
    Thomas Burchett, Ashland, Eldon S. Dummit and James Francis Miller, John M. Kelly, Lexington, for appellee.
   MONTGOMERY, Judge.

E. H. Solter recovered judgment in the sum of $42,178.72 against Sandy Valley Grocery Company, Inc., and Hagan Ratcliff Grocery Company, Inc. An appeal by the grocery companies from this judgment was dismissed for failure to file the record within the time permitted by CR 73.08. The mandate of this Court on this order contained no provision for damages under KRS 21.130. Solter’s right to recover such damages is presented by a motion in this Court to amend the mandate and by appeal from the order of the circuit court denying damages. Neither procedure is questioned. The records have been consolidated and are considered together for the purpose of this decision.

Appellant Solter contends that he is entitled to collect 10% damages since the original appeal was dismissed. Appellees contend that the appeal was never docketed in this Court because of the late filing of the record.

KRS 21.130 provides:

“Upon the affirmance of an appeal, or the dismissal of an appeal after it has been docketed in the Court of Appeals, where the appeal is from a judgment for the payment of money, the collection of which, in whole or in part, has been superseded, as provided in the Rules of Civil Procedure, ten percent damages on the amount superseded shall be awarded against the appellant.”

Upon adoption of the Kentucky Rules of Civil Procedure, Civil Code of Practice, Section 764, relating to damages upon affirmance, became KRS 21.130. The language of the statute was drawn so as to conform with the new Rules. The phrase “after it has been docketed in the Court of Appeals” was inserted. The meaning and effect of this phrase is involved here.

Appellees call attention to RCA 1.060(c), providing that an appealed case shall be entered in the docket book after compliance with RCA 1.070. The latter Rule provides in part:

“(a) To perfect an original appeal the appellant shall (1) cause the record on appeal to be filed, * *

Appellees argue that since the record was filed late the appeal was never perfected and was never docketed; hence, no damages are collectible. This argument ignores the facts. The supersedeas was issued September 12, 1958, after the execution of a supersedeas bond. The time for filing the appeal expired December 30, 1958. The record on appeal was filed January 2, 1959. All of the appropriate steps were taken in compliance with RCA 1.070. Therefore, it was proper to docket the appeal. RCA 1.060(c). This did not remedy the failure to file the appeal in proper time; hence, it was dismissed for late filing of the record. CR 73.08. The late filing of a record delays the successful party from collecting his debt just as much as does the prosecution of a timely but unsuccessful appeal.

Prior to adoption of the Kentucky Rules of Civil Procedure, July 1, 1953, the dismissal of an appeal for failure to file the record in time entitled the prevailing party to collect statutory damages. Hall v. Kennedy, 2 Ky., Sneed, 124; Tennessee Cent. R. Co. v. Reeves’ Adm’r, 147 Ky. 305, 143 S.W. 995; United States Fidelity & Guaranty Co. v. Citizens National Bank, 147 Ky. 810, 145 S.W. 750; Wermeling v. Wermeling, 224 Ky. 107, 5 S.W.2d 893; Big Sandy Commercial Bank v. Skaggs, 249 Ky. 81, 60 S.W.2d 90; Preece v. Burns’ Adm’r, 261 Ky. 202, 87 S.W.2d 375; Craig v. City of Lexington, 263 Ky. 798, 93 S.W.2d 852; Phillips v. Green, 288 Ky. 202, 155 S.W.2d 841.

The damages are in the nature of a penalty “for having delayed the litigation, and for having kept the successful litigant from sooner collecting his debt — a panacea, as it were, for the law’s delay.” Commonwealth v. French, 130 Ky. 744, 114 S.W. 255, 256, 17 Ann.Cas. 601; Phillips v. Green, above. No meritorious reason is shown why the appellees should not be penalized and required to pay the statutory damages occasioned by their abortive appeal. Appellant is entitled to collect such damages under KRS 21.130 for the delay occasioned in the collection of his debt.

Judgment reversed.


text:
    H. D. MARTIN et al., Appellants, v. Ava Martin FRASURE et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    Rehearing Denied Feb. 2, 1962.

      C. W. Napier, Hazard, for appellants.
    C. Kilmer Combs, .Ashland, Joe Hobson, Joe P. Tackett, Prestonsburg, for appel-lees.
   MONTGOMERY, Judge.

H. D. Martin, referred to herein as Hasadore, and his sister, Nancy Martin, appeal from the judgment entered in six consolidated cases. It was there adjudged that Hasadore did not own any interest in two tracts of land described aS'the “Tom Martin” and “Mousie Martin” tracts. In a subsequent order, also appealed from, appellants complain of the correction of the description of the “Mousie Martin” tract in a conveyance ordered following the sale of Hasadore’s interest therein. Other matters were reserved for future adjudication. The judgment and order comply with CR 54.02.

Hasadore is the more aggrieved of the two appellants. He insists that he has been disinherited wrongfully from the estates of Tom and Mousie Martin under the guise of legal proceedings had pursuant to a conspiracy among the appellees “to procure the entry of unlawful and inequitable judgments and proceedings in the Circuit Court”; that all claims, against him have been accounted for; and that various judgments, proceedings, and sales are void. He seeks an accounting of various funds, rents, and royalties. Nancy claims certain funds and interest.

The parties are the children and their descendants of William Martin, deceased. After his death, his lands were partitioned. Separate .conveyances were made to each for his or her respective tract. The lands allotted to two of the children have been identified in prolonged litigation as the “Tom Martin” and “Mousie Martin” tracts.

' This is the fifth appeal involving various •phases of a family .legal feud of approximately thirty years’ duration. See Martin v. Martin, 282 Ky. 411, 138 S.W.2d 509; Martin v. Martin, 286 Ky. 408, 150 S.W.2d 696; Frasure v. Martin, Ky., 247 S.W.2d 51. One appeal prosecuted by Hasadore was dismissed.

The contentions now made by appellants .were disposed of by the Chancellor’s holding that “All various judgments heretofore entered in this cause are valid in all respects- and the Court cannot go behind them.” This reference.is to-several judgments entered during this litigation, including those of May 15, 1940, June 5, 1940, June 19, 1941, and January 7, 1942. Also included was the report of settlement in the estate of Mousie Martin, deceased, recorded in the Floyd County Court on November 28, 1941. Some of the judgments were-rendered in obedience to the mandates •of this Court. Hasadore’s appeal from another judgment was dismissed.

Hasadore now urges that these proceedings and judgments should be set aside because they are inequitable and un-Taw'ful. He ignores his failure to attack these 'judgments by appeal or otherwise at the time they were rendered. The inequities and errors embodied therein cannot be raiséd now, two decades later. Wallace v. Ashland Oil & Transportation Co., Ky., 305 S.W.2d 541. A final decision of this Court, whether right or wrong, is the law of the case and is conclusive of .the questions therein resolved. It is binding upon the parties, the trial court, and the Court . of Appeals. It may not be reconsidered by prosecuting an appeal from a judgment entered in conformity therewith. Taylor v. Mills, Ky., 320 S.W.2d 111. Cf. Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539. Such decisions are in accord with the policy that all litigation should finally come to an end. The judgments entered in the Floyd Circuit Court in obedience to the mandates of this Court and the judgments therein from which no timely appeal has been taken or on which no timely attack has been made are final.

It appears that Nancy has received the funds claimed by her and has accepted payment without demanding any interest. Her claim to interest was thereby waived. American Bible Society v. Wells, 68 Me. 572, 28 Am.Rep. 82; 100 A.L.R. 105.

Judgment affirmed.


author: MONTGOMERY, Judge. PALMORE, Judge

text:
    ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. Deboe HOUSE, Adm’r, etc., et al., Appellees. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. McKinley DAVIS, Adm’r, etc., Appellee.
    Court of Appeals of Kentucky.
    June 23, 1961.
    Rehearing Denied Feb. 2, 1962.
    Lively M. Wilson, Stites, Wood, Helm & Peabody, Louisville, for appellant.
    John A. McCrea, Louisville, for Deboe House, Adm’r of estate of David House.
    Richard H. Nash, Louisville, for Iva Al-bright, Adm’x of estate of Jerry Ray Phillips.
    Edwin W. Paul, Louisville, for McKinley Davis, Adm’r of estate of Tommy Davis, for appellee.
   MONTGOMERY, Judge.

Four boys were killed in a collision between an Illinois Central Railroad Company train and the automobile of Walter Druen, driven by his son Ronald. Julia Druen, administratrix of the estate of Ronald Druen, sued only the railroad. The personal representatives of the estates of the other three boys sued both the railroad and Walter Druen, owner of the car. The jury returned a verdict in favor of the railroad in the action for the driver’s death and against the railroad and Druen in the other cases. The railroad alone appeals from the joint judgment totaling $37,898.09 against it and Walter Druen. One half of the judgment has been paid by Druen.

The primary question is whether the evidence discloses any negligence on the part of the railroad as the proximate cause of the accident. The court gave the usual instructions of ordinary care, lookout, control, etc., with the unusually dangerous crossing instruction added. The sufficiency of the evidence was questioned by appropriate motions before and after the verdict. Other questions are presented but it is unnecessary to discuss them.

The accident occurred in the afternoon of October 16, 1957. A light drizzle was falling. The place of the accident was the intersection of the Blevins Gap Road and the main line of the railroad 13 miles south of the city limits of Louisville. At this point, the track and U. S. 31 — W, the Dixie Highway, are approximately one-half mile apart. They are substantially parallel. Blevins Gap Road has a blacktopped surface 17 feet in width. It runs in a straight line from the highway east to the point where it crosses the railroad right of way at right angles. The crossing is marked by a red highway Stop sign and the standard railroad crossarm sign a few feet from the track on the side from which the boys approached. In addition, there was a railroad crossing sign approximately 300 feet from the crossing as the boys approached it.

Ronald Druen, 16, was driving his father’s 1950 Ford. He was accompanied by Tommy Davis, 17, David House, 15, and Jerry Ray Phillips, 13. All four boys lived in the vicinity where the accident occurred.

The three older boys, apparently, had started to go hunting. Immediately before the accident, they had stopped at Orell Feed and Hardware Store on Dixie Highway directly across from Blevins Gap Road. Davis purchased shotgun shells. Druen, the driver, was urging him, saying, “Come on, let’s go, I’m in a hurry.” Several hundred feet from the crossing, the boys in the car met the Phillips boy riding a bicycle. Phillips joined them. The car was started forward and driven into a collision with the locomotive. The boys were killed instantly.

The train involved was a steam locomotive pulling thirty-five cars loaded with freight. It was proceeding south at a speed of about 40 miles per hour as it approached the crossing. Its bell had been ringing continually since leaving the Louisville Yards. The whistle was sounded for the Orell Road crossing just to the north of the Blevins Gap crossing. The engineer began to blow the whistle about 800 feet from the crossing. At a point about 200 feet from the Blevins Gap crossing, the engineer saw the Druen car approaching the crossing. The auto was then about 200 feet from the tracks. The engineer immediately started a series of short shrill emergency blasts of the whistle to warn the car’s occupants of the approach of the train. The regular whistle, as well as the distress whistle, was heard as far away as Dixie Highway by the man who had sold the boys the shotgun shells, by police officers as they drove down the highway, and by others.

The car did not slow its speed. The engineer, realizing the car was not going to stop, applied the brakes in emergency. It was impossible for him to stop the train before the collision.

Appellant insists that the Blevins Gap crossing was an ordinary road crossing and that adequate warnings were given of the approach of the train to the crossing, while appellees argue that the view of the approaching train was obstructed so that it made the crossing unusually dangerous or extra-hazardous, thus justifying the instruction given and the submission of the case to the jury. The question to be determined is whether the crossing was so hazardous that the warnings given were inadequate.

Broadly, the primary considerations affecting the status of particular crossings as unusually dangerous or extra-hazardous or not have been said to be (1) the ease with which travelers on the highway can detect the approach of a train, and conversely, the ease with which the operatives of the train can detect the approach of a traveler on the highway; and (2) the amount and character of the traffic over the crossing, either on the tracks or on the intersecting road or street. See Annotation, 5 A.L.R.2d, Section 7, page 149, for the factors involved. The second consideration, the traffic involved, more appropriately would seem to concern the incidence of or the exposure to the hazard since the hazards involved are not made more or less dangerous by reason of the fact that many or few travelers may be exposed to them. Appellees urge that the crossing was used heavily by traffic.

The trial judge, in an opinion, said that the warnings given by appellant by means of bell, whistle, and signs, “were, in the language of the instruction, ‘sufficient to give reasonable notice of the approach of the train to said crossing.’ ” He held that “The evidence in this case shows conclusively that defendant, Illinois Central Railroad Company, took precautions over and above those required by the Statute.” We agree.

The problem is narrowed to a consideration of whether the view of the approaching train was obstructed. Appellees insist that trees, weeds, and brush growing on and near the railroad right of way so obstructed the view as to make the crossing unusually dangerous to the traveler approaching from the west. Several witnesses who lived in the neighborhood and used the crossing testified that a traveler in a car approaching from the west would have to be within 15 feet of the track in order to see an approaching train 200 feet from the crossing as described by the engineer.

Appellant introduced several photographs taken at distances of 330, 120, 90, 60, 45, 30, and 15 feet west of the crossing facing in the direction of the approaching train. They were taken the next day after the accident. The west line of the right of way was 38 feet from the center of the track. An examination of these photographs shows that the trees, brush, and undergrowth did not obstruct the view so as to obscure the approach of the train. As was said in Louisville & N. R. Co. v. Marshall’s Adm’x, 289 Ky. 129, 158 S.W.2d 137, 139:

“They clearly demonstrate that the automobile did not have to approach the main line as close as those witnesses testified to in order for the occupant to discover by sight the approaching train from the direction in which the fatal one in this case was traveling, and which we conclude is much more persuasive than the mere opinion of the witnesses testifying to the contrary.”

The photographs reveal nothing unusual about the crossing. It is a usual country crossing. The land is flat and the crossing is level. There is a slight embankment on each side of the track but clearly insufficient to conceal a locomotive from view. The photograph taken from the point 90 feet west of the crossing reveals a man walking on the track. The one taken 45 feet west shows the growth along the fence is so sparse that the rails of the track are visible. The engineer testified that the car was continuously visible as it approached the track from a point 200 feet west.

In Wadkins’ Adm’x v. Chesapeake & Ohio Railway Co., Ky., 298 S.W.2d 7, 10, the Court said :

“While there was evidence that some weeds and vines had been permitted to grow near the company’s right-of-way fence, this vegetation did not obstruct the view of a train from a passenger in an automobile or a pedestrian using the crossing. The testimony of the witnesses and the photographs and other exhibits appearing in this record conclusively established that this particular grade crossing was not made extrahazardous by the vegetation. Therefore, there is no basis for this contention.”

The trial judge, in his opinion, indicated that he held the same view but felt impelled to give the unusually dangerous crossing instruction. See Louisville & N. R. Co. v. Crockett’s Adm’x, 232 Ky. 726, 24 S.W.2d 580. The giving of the instruction, ap-parcntly, was predicated on the theory embodied in Illinois Cent. R. Co. v. Peebles, 216 Ky. 9, 287 S.W. 574, in which the jury was permitted under an instruction to decide whether the railroad should or could have taken other precautions. However meritorious may be the trial court’s criticism of the instruction approved in the Crockett case, the evidence here does not warrant.the giving of the unusually dangerous crossing instruction. Piersall’s Adm’r v. Chesapeake & O. R. Co., 180 Ky. 659, 203 S.W. 551; Cincinnati, N. O. & T. P. R. Co. v. Hare’s Adm’x, 297 Ky. 5, 178 S.W.2d 835. As was said in Cincinnati, N. O. & T. P. R. Co. v. Howe’s Adm’r, 207 Ky. 769, 270 S.W. 57, 58, “to apply the rule indicated to such a crossing would be to make the rule applicable practically to all country crossings.” The motion for judgment notwithstanding the verdict should have been sustained.

Judgment reversed with direction to enter judgment for appellant.

PALMORE, Judge

(concurring).

The opinion in this case unquestionably is right if the volume of traffic at a particular crossing is to be eliminated as a factor in determining whether it is extra-hazardous. However, I think it is a highly relevant factor, not to be ignored. Standards of care necessarily depend on what the public thinks — that is, in the form of settled and prevailing attitudes. When a jury is told to decide a case on the basis of what a reasonably prudent man would have done under certain circumstances we presume that its verdict is the measure of what society in general would think. Now, if a railroad crossing should be so congested with traffic that the public in general would expect the railroad company to have a man get off the train and flag the traffic out of the way, then that is the standard of care required of the railroad. After all, the unwritten or judge-made law is supposed to represent the attitudes of society, and the way we determine what society would think of a given fact situation, if there is fair-room for difference of opinion, is to ask a jury.

Lest it be suspected that I sympathize with the ultra-modern Plarper & James-theory of liability without fault, let me hasten to disavow it, and strongly so. However, “fault” must always be determined on. the basis of what the reasonable man, the-composite of society at the time and place, would think and do, and in this case I think-, it was a fair question for the jury to determine whether in the exercise of due care the railroad should have maintained at this thickly traveled crossing some other and more effective warning (for example, a. wig-wag, flasher, or ding-dong signal) of' the approach of its trains.

There is, however, another theory oh-which the opinion can be supported without regard to whether the crossing was extra-hazardous. Although the instructions, enumerated various duties on the part' of the railroad, there was only one respect in which it really could have been negligent, and that was in failing to provide adequate and reasonable warning of the train’s approach. The verdict against the driver’s-personal representative had to rest on one. of two findings, (a) that the railroad was-not negligent in this respect or (b) that the driver was contributorily negligent. Obviously, the verdict in favor of the passengers eliminates (a), from which it follows-that the jury found the railroad negligent, and the driver contributorily negligent. Analyzing the situation further, however, in the absence of any evidence revealing the details of the driver’s conduct, how could, he have been found negligent on any theory except that the jury thought the railroad had in fact provided sufficient warning to-make it his duty to avoid the accident ? And if the warning given by the railroad was sufficient for the driver, why would it not have been sufficient for all other users of the highway, including the passengers? As I see it, there is only one answer to these questions; and since the jury unmistakably-indicated its belief that the railroad had done all the things reasonably necessary in ■order to protect the driver it could not logically say the railroad had a different or .greater duty with respect to the passengers.

In a fact situation as narrow as this I do not believe there is any' room for a con•.tributory negligence instruction, but since it was given it afforded the means by which the jury’s true finding was revealed. That finding was that the various signs and signals provided by the railroad were reasonably sufficient to warn the driver, and if they were sufficient as to him they were sufficient for all other users of the.highway, including the passengers.


author: DICE, Commissioner.

text:
    Norman L. FREEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34095.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Woodrow F. Eason, Waco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault upon a police officer; the punishment, confinement in jail for one year.

The record contains no statement of facts of the evidence adduced upon the trial and there are no formal bills of exception.

The claims of error in the refusal of requested charges and the overruling of objections to the charge as given cannot be appraised in the absence of a statement of facts. Hankins v. State, Tex.Cr.App., 294 S.W.2d 840; Lackey v. State, Tex.Cr.App., 318 S.W.2d 646 and Fountain v. State, Tex.Cr.App., 342 S.W.2d 587.

All proceedings appear to be regular and nothing is presented for review.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Carl Oren CAPPS, Appellant, v. The STATE of Texas, Appellee.
    No. 34111.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.

      Hugh Anderson, Lubbock, for appellant.
    Alton R. Griffin, County Atty., by Sam L. Kelley, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving and operating a motor vehicle upon a public highway while intoxicated; the punishment, ten days in jail and a fine of $100.

Reversal is sought upon two points, the first being the contention that “there was no evidence that a motor vehicle was moved along, across or upon a public highway while under the control of Defendant.”

Seventeen year old Jerry Hester testified that as he went out the door of a cafe at the intersection of Farm Road 400 and U: S. 82, between 10 and 11 o’clock at night:

“I heard some tires squealing and I looked around and seen a car run up on top of some posts out there. I mean — Well, there are posts dividing the highway.
* * * * * *
“Q. Okay. What did you do when you heard these tires squealing? A. I just looked over my shoulder.
“Q. Which direction did you look? A. Away from the — The way the tires would be squealing.
“Q. What did you see when you looked around, Jerry?
“A. I seen a car — a car light running, just kind of bouncing for a moment and then standing still and heard like a car hit something. * * *
“Q. All right. Now, you saw these car lights sort of moving; is that right? A. Yes, sir. Just for a second.”

The witness Hester identified appellant as the man who was alone in the Chevrolet that was “kind of balanced” on posts dividing the highway. The posts were inside the curb and the Chevrolet was on or inside the curb when the witness passed and when he returned with Officer Ford, from nearby Idalou, appellant was seated under the steering wheel and the motor was running.

Ford testified:

“Q. All right. And where was this car when you arrived?
“A. It was astraddle of about two posts.
“Q. Okay. And two of these guard posts here; is that correct?
“A. Yes, sir.
“Q. So, I believe you said you went up to the car; is that right? A. Yes, sir.
“Q. All right. What did you do when you got up to the car?
“A. I opened the door.
“Q. Could you see anyone in this car? A. Yes, sir.
“Q. How many people were there? A. One.
“Q. Where was he seated? A. Under the wheel in the front seat.
“Q. Now, was this — You recall whether, or not the motor was stopped or running at this time? A. It was running.
“Q. And before you got up to the car, did you observe what was happening to the car, what was being done with the car, if anything ?
“A. Well, nothing, only I knew the car was setting out there. I just drove on out there. Jerry told me about the car. And I went on out and parked there in the front ■of the car and got out. Found it.
“Q. When did you first notice the car motor was running?
“A. Well, as soon as I got out of the •car.
“Q. Okay. And was the car — did it appear to you, or not, whether the car was being moved or the motor raced or it was trying to move?
“A. He was trying to get out.”

The Witness Ford further testified that appellant “said he had made a bad drive.”

The careful trial court charged the jury on circumstantial evidence.

Viewed in the light most favorable to the jury’s verdict, we find the evidence sufficient to sustain the finding that appellant drove and operated the automobile on .the public highway. Harrison v. State, Tex.Cr.App., 350 S.W.2d 204; Sandford v. State, Tex.Cr.App., 334 S.W.2d 184; and Thomas v. State, 162 Tex.Cr.R. 268, 283 S.W.2d 933, sustain our holding.

The second ground upon which reversal is sought is the refusal of a requested charge defining the term “operate a motor vehicle upon a public highway”, used in the court’s charge.

The quoted words appear in the statute, Art. 802, Vernon’s Ann.P.C., and are ordinary English words which are commonly and ordinarily understood by people generally, hence the court was not required to define them. Humphreys v. State, 34 Tex.Cr.R. 434, 30 S.W. 1066; Blackburn v. State, 71 Tex.Cr.R. 625, 160 S.W. 687; 24-A Tex.Jur. 629, Sec. 70.

There is ample evidence that appellant was intoxicated on the occasion in question. The officers who made the investigation and the arrest described his appearance and conduct and testified that he was intoxicated. A partially full bottle of whisky was found on the floor of the automobile, near the driver’s seat.

The evidence is sufficient to sustain the conviction and we find no reversible error. The judgment is affirmed.