text:
    William L. SPARKS, Appellant, v. Dorothy DOE, Appellee. LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Dorothy DOE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.
    Rehearing Denied June 19, 1964.

      Julius Leibson, David Gittleman, Louisville, for William L. Sparks.
    Ben Matthews, Bernard B. Davis, Shel-byville, for Dorothy Doe.
    Gavin H. Cochran, Marshall Cochran, Heyburn & Wells, Mark Davis, Jr., Louisville, for Liberty Mut. Ins. Co.
   PALMORE, Judge.

Two trucks going in opposite directions on U. S. 60 between Simpsonville and Shelbyville had a head-on collision caused by the presence in the road of a cow owned jointly by the appellee, Dorothy Doe, and her share tenant, John Watson. William Sparks, driver of the east-bound truck (a tractor-trailer unit), sustained personal injuries for which he sued Mrs. Doe. He appeals from a judgment entered pursuant to a jury verdict in her favor.

The accident occurred early in the morning while it was still dark. The place was in' front of Mrs. Doe’s farm, which bordered the highway on the south and was enclosed by a fence situated 30 to 40 feet from the edge of the pavement. At a distance of some 400 feet from the point of impact Sparks topped a hill and observed the lights of the vehicle approaching from the east, and he dimmed his headlights. When he came within about 100 feet of the point of impact-he noticed 100 to 150 feet ahead of him four or five cattle walking parallel with the road about half way between the pavement and Mrs. Doe’s fence. He was traveling, he said, at a rate of 38 to 40 m. p. h. and did not think it necessary to slacken his speed because if any of the cattle had started toward the road he would have passed before they got to it. Suddenly, however, another cow, previously unobserved, appeared from the left and stepped into his traffic lane 15 or 20 feet in front of his truck. The left front corner of the Sparks truck hit the cow, causing the trailer to jack-knife and turn over crosswise of the highway, whereupon it was immediately struck by the oncoming vehicle from the east.

Of principal concern in this case are the meaning and significance of KRS 259.-210(1) and (2), which provide in part as follows:

“(1) No person shall permit any cattle owned by him or under his control or in his custody, to run at large.
“(2) If any damage is committed by cattle permitted to run at large, the owner of the cattle shall be liable for all damages,” etc.

In Wigginton & Sweeney v. Bruce’s Guardian, 174 Ky. 691, 192 S.W. 850 (1917), the word “permit” in this statute was construed as including a failure to exercise “that degree of care that is usually exercised by ordinarily prudent persons under the same circumstances.” It was later held in Ellington v. Strader, Ky., 285 S.W.2d 497 (1955), that the unexplained presence of a cow on a highway creates against the owner a rebuttable presumption of negligence, entitling the injured plaintiff to a directed verdict unless the owner comes forward with rebutting evidence on that issue. In the latter case the defendant did not put on any evidence at all (in fact, the trial court had erroneously directed a verdict in his favor), and in the course of its opinion this court observed “that it would not be unreasonable to require the owner of the cow, who had peculiar means of access to the facts as to how the cow got out, to make those facts known to the court.” On the strength of this passing comment appellant contends in this case that because Mrs. Doe was unable to show how her cow or cows got out he was entitled to a directed verdict against her. We do not agree.

There was ample evidence from which the jury could have found that Mrs. Doe’s fence was in a state of disrepair and had at least one hole through which it was possible for stock to escape. On the other hand, there was evidence in her behalf to the effect that the fence was adequate and in good order and that all the gates had been closed the night before and were still closed immediately after the accident. Neither Watson nor Mrs. Doe was able to say how the cattle had escaped. There were, however, other people living on the farm and there had been instances in the past when a person or persons unknown had left a gate open.

The question is, was there enough evidence of the exercise of ordinary care by Mrs. Doe, in rebuttal of the presumption of negligence arising from the presence of her cow in the road, so that it could no longer be said that there was but one conclusion to be drawn by reasonable men? Cf. Lee v. Tucker, Ky., 365 S.W.2d 849, 851 (1963). If not, then in effect we make the farmer an insurer, and we prefer to leave that to the legislature.

Mrs. Doe’s evidence authorized the jury to believe (albeit over conflicting testimony) that she had a good fence and that her tenant had closed and chained all the gates before retiring the night before. Perhaps farmers situated on or near main highways ought to lock their gates, but we know they customarily do not, and in the context of the common law what is custom is not negligence. Only direct legislation could properly make it so.

In some cases the farmer may know and be able to say how his stock got out, but in many cases he cannot. Hunters, fishermen, surveyors, neighbors and numerous others will presume on his good nature and enter his property without permission. Gates will be left open from time to time without his knowledge and without negligence on his part. We cannot hang him on that account. If the owner of a straying cow chooses to stand mute, certainly a verdict should be directed against him. But this is all that was meant by the cited comment in the Ellington case; it did not imply that the owner must always be convicted of negligence unless he succeeds in showing just how the escape occurred.

We hold that Mrs. Doe produced sufficient evidence of the exercise of ordinary care to create a jury question.

The instruction covering negligence by Mrs. Doe was to the effect that it was her duty “not to permit any cattle owned by her, or under her control, or in her custody, to run at large,” and that if she “did negligently permit any such cattle * * * to run at large, and * * * as a direct and consequent result of her so doing the accident was caused to occur” the law was for the plaintiff. This was a correct statement of KRS 259.210(1) and (2) as construed in Wigginton & Sweeney v. Bruce’s Guardian, 174 Ky. 691, 192 S.W. 850 (1917). It was not necessary for the statutory provisions to be set out in haec verba as submitted in instructions (1) and (2) offered by Sparks.

Instruction (3) tendered by Sparks and rejected by the court stated that the law was for the plaintiff unless the jury believed from the evidence “all of the following:

“(a) That the defendant exercised due care to restrain the cattle; and
“(b) That it was at large without any fault of the defendant; and
“(c) That the defendant promptly pursued it; in which event you shall find for the defendant.”

Subsection (a) of this tender was fairly embodied in the instruction given by the court. So was subsection (b) unless the expression “any fault” be taken to connote a higher standard than ordinary care, in which event it would be improper. Ordinary care being the standard to which those who use the highways are held, we see no justice in applying a stricter one to those who live by the side of the road.

Subsection (c) of the offered instruction (3) was tantamount to a directed verdict for the plaintiff and would have been manifestly improper.

The only other instructions offered by Sparks dealt with damages and the number of jurors required to agree on a verdict. It will he noted that the possible agency or master-servant relationship between Watson and Mrs. Doe was not covered. Nor was it mentioned in the course of the arguments on the instructions. It is obvious from the transcript that Sparks’s objection to the instructions on this ground was dictated after the case had been argued and submitted to the jury. The pertinent passage in the transcript reads as follows :

“Comes the plaintiff and objects to instruction number one given by the court because: (1) it fails to tell the jury that the negligence, if any, of the defendant’s agents, servants and employees acting on her business, was imputable to her, even though the Court during closing argument by Mr. Davis told the Jury from the Bench that that was what he meant by the instruction.” (Emphasis added.)

We cannot consider an afterthought objection to the instructions as timely made; and in the absence of a waiver by counsel the trial court had no right to defer the raising of objections until after the jury had retired to deliberate under the guidance of instructions already given. The object of CR 51 is to smoke out all impurities beforehand, to the end that the jury will be properly instructed and the case tried but once. Had counsel for Sparks made the point at the proper time, counsel for Mrs. Doe may very well have conceded it rather than court the risk of a reversible error, and at least the trial court would have had a timely opportunity to consider it

We have the same opinion with regard to the objection to the closing argument by counsel for Mrs. Doe, in which he insisted, over objections, that “you will search in vain to find anything that tells you if you believe that John Watson was negligent to find against Dorothy Doe, you won’t find that in here,” etc. In the ensuing colloquy among court and counsel in the hearing of the jury the following was said:

BY MR. LEIBSON: “The negligence of Mr. Watson, if any, is just as much her negligence as his, if Your Honor, please, and we allege in our complaint that she was negligent through the agency — through her agents, servants and employees, and that’s what is meant by that instruction.
BY THE COURT: “That’s what I intended to mean by that instruction.
BY MR. DAVIS: "Well, we will submit these instructions to you.
BY MR. LEIBSON: “Well, the Court just said he meant — •
BY MR. DAVIS : “Well, now, if the Court is going to amend the instructions I would like to be heard out of the presence of the Jury and have the instructions amended in writing or if we are going to abide by the—
BY MR. LEIBSON: “The Court said—
BY MR. DAVIS: “Well, wait a minute, Mr. Leibson. Or have the Court permit me to argue the instructions as they are written.
BY MR. LEIBSON: “The Court means just what he said there and he said that’s just what he meant by it, just what he said.
BY MR. DAVIS: “All right—
BY THE COURT: “The Jury heard it.”
And so on.

In spite of the suggestion that the matter be discussed in chambers with a view to amending the instructions counsel for Sparks did not move the court to do so, and in his closing speech to the jury was permitted without objection to comment as follows:

“Now, let me get down to a very serious case. You’ve got a simple case to try. The law says, and His Honor so told you, that Mrs. Doe shall not permit any cattle to get out on that highway and cause injury to anybody else. I want to tell you one thing. Now, in his zealousness I saw something happen here a while ago, and I’ve been trying cases for thirty-three years, and I have tried them pretty much all over, not only in Kentucky but elsewhere, I have not before seen such a situation where the Judge, who is the Judge of the case, and, who when he tells you what the law is, by your oath you must follow it, tells you from that Bench that he meant what he said about Mrs. Doe being negligent, he meant by that through' herself or through her agents or employees, a lawyer stand up and still argue the contrary. That I have never seen before, and never expect again to see. Now, you heard His Honor tell you that he meant by that instruction that if you believe that the negligence of Mrs. Doe, or her agent, or servant or employee acting for her, that is the same as her own negligence, and, yet, Mr. Bernard Davis, as good a lawyer as he is, and as nice a guy as he is, had the nerve to tell you, in the presence of His Honor, to disregard what His Honor told you from the Bench. Now, let’s get that out of the way * * The law requires Mrs. Doe, herself, and through her agents, those in charge of her farm, to exercise ordinary care, to not be negligent in the maintenance of their fence, in order to see to it that their cows do not do what this cow on that occasion did.”

Whatever confusion existed regarding the agency relationship was made possible by the failure of counsel for Sparks to request an appropriate instruction in the first place and by his subsequent election to stand on the court’s remark, “That’s what I intended to mean by that instruction,” instead of acceding to the suggestion that the question of whether the instructions meant more than they said be taken up in chambers and that they be amended if necessary. Had the court given the very instructions offered in behalf of Sparks, the situation in this respect would have been precisely the same. Under the circumstances, we cannot say that the argument of counsel was improper or prejudicial. A lawyer defending his client is not engaged in philanthropy.

Objection was raised against other isolated remarks made in the summation for Mrs. Doe in which, for example, it was said, “You are a farmer, many of you, and the only way you can project yourself into her position is to think of your wife running a farm under these circumstances,” and “that it is unreasonable and unrealistic to come before you and ask that she be held liable in damage for Sixty-five Thousand Five Hundred Dollars, that her farm be stripped from her, because this man came down that road and hit that cow under those circumstances, through no fault of hers, when he had every opportunity to avoid the collision,” etc. (Emphasis added.)

Responding to the latter suggestion, when it came his turn counsel for Sparks proved equal to the occasion: “And let me tell you this, let me urge you not to trouble yourselves at all about how this will affect Mrs. Doe. * * * So, here is a man who has got these terrible and lasting injuries, and Mr. Davis tells you ‘that the nerve of this Bill Sparks to ask you to strip her of her farm.’ You can bet your last penny that it will not do any such thing to this lady.” (Emphasis added.) Though invited by the previous remarks of counsel for Mrs. Doe, these shafts more nearly approached the proscription of Randle v. Mitchell, 283 Ky. 501, 142 S.W.2d 124 (1940) than did the references made in behalf of Mrs. Doe.

We realize, of course, that allusions to a litigant’s situation as a widow whose property may be taken from her tend to create sympathy in her behalf and may be carried so far that the likelihood of prejudice is too great to let it pass. But each case must be judged by its individual circumstances. Counsel must be allowed a reasonable latitude in arguing his case, and jurors are not to be regarded as complete dupes. If we should hold these particular remarks prejudicial many a wrathful plaintiff’s counsel would find himself in the same predicament. After perusing the closing address by counsel for Sparks (in which, for example, he was pictured as “a high class boy trying to support his family”) we are constrained to say that he had much the better of it on this score.

We arc not persuaded that Sparks was unfairly prejudiced by the argument.

The final questions are whether the trial court erred in giving an instruction on contributory negligence and, if not, in enumerating among Sparks’s duties the statutory requirements as to speed (40 m. p. h.) and headlights.

It will be recalled that as he approached about 100 feet from the ultimate point at which he struck the cow coming from his left Sparks saw four or five cows walking along the side of the road to his right. He testified that they were “plainly visible,” but he did not sooner discover the one on his left “because of the other cattle I was watching there at the edge of the road of my lane. If I looked, over to the left into those oncoming lights it probably would have blinded me and I wouldn’t have been able to see anything.” He did not slacken his speed, because he felt that he could clear those cows on the right before any of them could get in his way.

Putting ourselves in the position of jurors, we probably would not find Sparks to have been negligent. But we cannot say there is no room on the point for an honest difference of opinion among reasonable men. Sparks having observed that there were cattle at large by the side of the road, a jury could properly conclude that he should have slowed his truck in anticipation that there might be another one or more of them on the highway in the immediate vicinity. There is also a fair question as to whether he should have seen the last cow within the beam of his lights before he says he did. If the lights of the vehicle approaching from the opposite direction were so directed and focused that they would have “blinded” him, it seems likely that they would have illuminated the cow on the road. It is our conclusion that the facts and circumstances of the case warranted an instruction on contributory negligence. Cf. Massie v. Salmon, Ky., 277 S.W.2d 49, 52 (1955).

The instruction of which complaint is made reads as follows:

“It was the duty of the plaintiff, William L. Sparks, at the time and place of the accident concerning which you have heard evidence to exercise ordinary care for his own safety in the operation of the motor vehicle which he was driving, and that duty included the following duties: To keep a lookout ahead for other traffic, including cattle on the highway and to exercise ordinary care to avoid colliding with same; to have his motor vehicle under reasonable control, and not to operate the same at a greater speed than forty (40) miles per hour, and to have the same equipped with two headlights showing white or tinted other than red, and of sufficient power to distinguish substantial objects for a distance of at least 350 feet ahead under ordinary atmospheric conditions on bright beam or 100 feet on low beam to which he was to dim at least 500 feet of oncoming traffic, and if you believe that the plaintiff violated any one or more of these duties, and that such violation, if any, so contributed to the cause of the accident and consequent injuries to plaintiff, that but for which the same would not have occurred, then the law for this case is for the defendant, even though you may also believe that defendant violated the duty imposed on her in instruction No. 1.”

The only direct evidence of speed was Sparks’s own testimony that he was traveling at a rate of 38 to 40 m. p. h. Assuming, therefore, that there was no circumstantial evidence of substance to indicate a greater speed, an instruction on the point was unnecessary and technically improper. Cf. Willett v. Bradas & Gheens, Inc., 283 Ky. 525, 142 S.W.2d 139, 142 (1940). However, the enumeration of a driver’s basic duties.in a single instruction does not emphasize any one of them over the others and does not so invite speculation that we can justifiably find prejudice in the inclusion of a duty just because it is technically irrelevant. From a practical standpoint, it seems to us that when there has been no evidence of excessive speed there is a gre.ater likelihood of benefit than prejudice to thé driver through the jury’s being advised of the speed limit.

With respect to that portion of the instruction dealing with lights, the objection is in substance that there was no basis for mention of the 350-foot power under ordinary conditions because at the time of the accident Sparks had deflected his lights as required by KRS 189.040(5), whereupon only a • 100-foot reach was mandatory. See KRS 189.040(3) (a) and (b). This phase of the instruction was substantially correct, and it seems-very unlikely to us that the jury could have misunderstood it.

The judgment is affirmed.'

      . The term “point of impact” as used here means the point where Sparks hit the cow.

      . See discussions in Lee v. Tucker, Ky., 365 S.W.2d 849 (1963), and Bell & Koch, Inc., v. Stanley, Ky., 375 S.W.2d 696 (1964).

      . KRS 189.390(2) (b).

      . KRS 189.040.

      . Compare Baker v. Sizemore, Ky., 338 S.W.2d 386, 391 (1960).

      . At best, this theory ignores the significance of Sparks’s having dimmed his - lights when the distance between the two trucks was well over 500 feet. It is distinctly possible that bis failure to discover the cow on the highway resulted from the dimming of his lights before it was reasonably necessary.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bart H. HIMES et al., Petitioners, v. AMERICAN HOME FENCE COMPANY, Respondent.
    No. A-10036.
    Supreme Court of Texas.
    May 20, 1964.
    Rehearing Denied June 17, 1964.
    Brans & Berryman, Goldberg & Alexander, Robert N. Benson, Dallas, for petitioners.
    W. B. Pope, Dallas, for respondent.
   PER CURIAM.

This is a suit on a verified account. Summary judgment for the plaintiffs was rendered by the trial court. The Court of Civil Appeals reversed such judgment and remanded the cause for trial. 374 S.W.2d 777.

If the intermediate court held that there can never be a summary judgment in an action on a verified account where the defendant files a written denial under oath which meets the requirements of Rule 185, Texas Rules of Civil Procedure, we are not in agreement with that broad conclusion. It appears however, that the plaintiffs were awarded attorney’s fees of $575.00 in addition to the amount of the account which is the basis of their suit. Aside from the unverified allegations of the petition regarding the claim for attorney’s fees, the only “showing” made with respect to such claim is the affidavit of one plaintiff that demands had been made upon defendant for payment of the account, that more than thirty days had expired between the date of demand and the filing of the petition, that the plaintiffs had employed attorneys and agreed to pay them a fee of $575.00, and that “insofar as this Plaintiff is concerned, such amount is a fair and reasonable amount.” This does not conclusively establish for purposes of the summary judgment that the amount which the plaintiffs agreed to pay their attorneys is reasonable. The affidavit fails to show that the affiant is qualified to express an opinion on such matters, and he did not even purport to say that the $575.00 is, in fact, reasonable under the circumstances. Cases dealing with the fixing of attorney’s fees by the trial judge when acting as the trier of fact have no application to a summary judgment proceeding.

Defendant’s first point of error in the Court of Civil Appeals asserts that there is an issue of fact as to the reasonableness of the attorney’s fees. In our opinion the point is well taken and requires that the judgment of the Court of Civil Appeals be affirmed even if it be conceded that the plaintiffs established their right to recover on the verified account. The application for writ of error is accordingly refused, no reversible error.


author: NORVELL, Justice.

text:
    Paul M. McCARTY, Petitioner, v. Windell Ford PURSER et ux., Respondents.
    No. A-9946.
    Supreme Court of Texas.
    May 13, 1964.
    Rehearing Denied June 17, 1964.
    Byrd, Davis & Eisenberg, Austin, for petitioner.
    Gay & Meyers, Austin, for respondents.
   NORVELL, Justice.

In the early morning hours of November 11, 1959, Captain Paul M. McCarty was standing beside his car in the parking lot of Bergstrom Air Force Base when he was violently struck by a Ford pickup truck driven by Mrs. Doris Purser. Mrs. Purser also had a car parked upon the lot some four parking spaces from the McCarty car. There were no automobiles in the spaces between the Purser and McCarty cars and Mrs. Purser was attempting to park within this area, when through misadventure, her foot slipped from the brake to the accelerator. She then “panicked”, to use her expression, and drove the truck into McCarty causing severe bodily injuries.

Captain McCarty sued Mrs. Purser and Colonel Forrest Jewell, who was riding with Mrs. Purser in the pickup at the time of the collision. The jury found that Mrs. Purser was negligent in a number of particulars, such as accelerating the motor of the truck, fáiling to properly apply the brakes, failing to properly steer the vehicle, and the like, and that such negligent acts and omissions were proximate causes of McCarty’s injuries. The evidence fully supports these findings.

The jury further found that McCarty was contributorily negligent in requesting Colonel Jewell to allow Doris Purser to drive the pickup and that this was the proximate cause of the collision in which he was injured.

The jury also found that McCarty did not keep a proper lookout for his own safety; that he was negligent in standing in the parking area while Mrs. Purser was driving the pickup; that McCarty should have appreciated the danger in requesting that Mrs. Purser be allowed to drive the truck, and that he voluntarily exposed himself to the danger brought about by Mrs. Purser’s driving the pickup. None of the issues mentioned in this paragraph has support in evidence. It appears from both Mrs. Purser’s testimony and that of Colonel Jewell that when Mrs. Purser suddenly accelerated the pickup, it was too late for McCarty to avoid impact. This is not a classic volenti non fit injuria case, and was not argued in this Court as such.

The trial court rendered judgment against McCarty and in favor of both Mrs. Purser and Colonel Jewell. No appeal was taken from the judgment in favor of Jewell and he need not be further noticed as a party.

The Court of Civil Appeals reversed and remanded the cause for another trial as to Mrs. Purser. One of the Justices dissented, contending that judgment should have been rendered for McCarty in the amount of damages found by the jury. 373 S.W.2d 293, dissent, 1. c. 299. We agree with the views expressed in the dissent.

The Court of Civil Appeals applied the rules generally applicable to contentions that there is no evidence supporting jury findings, yet speaks of there being “insufficient evidence” to sustain various findings and remands the cause. In view of this circumstance, it is suggested by Mrs. Purser, the respondent, that this Court reverse the judgment of the Court of Civil Appeals and remand the cause to that Court “with instructions to render judgment for the petitioner (McCarty) if the Court of Civil Appeals feels that there is no evidence supporting the issues answered favorably to respondents, or to apply the correct rule of law (as set out in King’s case, 150 Tex. 662, 244 S.W.2d 660) and weigh all the evidence if that Court thinks there is some evidence in support of those issues.”

The procedure suggested may be applicable to certain causes, but as the present case may be determined on “no evidence” points over which we have jurisdiction, the simpler procedure is to render judgment here.

By reason of the frank and able presentation of the case in this Court, this opinion may be considerably shortened. It is the theory of respondent that while this is not a case of negligent entrustment, the rules applicable to such cases have some application here by way of analogy. In brief, it is asserted that because McCarty requested Colonel Jewell to let Mrs. Purser drive the pickup he cannot complain of injuries received by him which arose out of her negligent driving of the pickup truck.

It appears that Mrs. Purser, Captain McCarty and Rufus (Buck) Harris, an insurance salesman, were in attendance at an informal party at the Bergstrom Officers Club. Colonel Jewell was with them a portion of the time. All of them, with the exception of Captain McCarty, testified upon the trial and there is little conflict in the evidence. The party began about 6 P.M. on November 10th, and ended sometime after midnight. When the party broke up McCarty, and perhaps Harris also, requested that Colonel Jewell allow Mrs. Purser to drive the Ford pickup which had been assigned to him by the military authorities. Colonel Jewell acceded to this request, whereupon Mrs. Purser got in the pickup and proceeded to drive the same in an anti-clockwise direction around the parking lot at a slow rate of speed. McCarty went to his car and while he was standing beside it Mrs. Purser, having almost completed a circle of the lot, attempted to park the vehicle between her car and McCarty’s car with the result heretofore mentioned.

There is considerable discussion in the briefs concerning intoxication, as well as testimony relating thereto. All concluded that nobody was drunk, and it does not appear that anyone lost his balance, staggered or fell down. Respondent remarks with some support in the record that Captain McCarty opened and closed the club on the occasion in question and that the members of the party behaved in an irresponsible manner. All the persons attending the party had been drinking to some extent over a considerable period of time and while they may not have been intoxicated, they were at least imaginative.

However that may be, the theory of respondent is that a suggestion or request made by one having no control over a vehicle that another person be allowed to drive the same may serve as a basis of liability for damages. In this particular case, the principle is asserted as grounds for contributory negligence defense, but the princi-pie is the same in either case. To reduce the problem to its essentials, we take these hypotheses: A requests B to let C drive his automobile. C in driving the automobile injures D. A is liable to D; or, A requests B to let C drive his automobile. C in driving the automobile injures A. A cannot recover from C.

These illustrations need some amplification of circumstances to be seriously considered. When we turn to the negligent entrustment cases, we find that to establish liability under that doctrine it is essential, among other things, that it be shown that the person entrusted with the automobile was an incompetent driver, and that such incompetency was the proximate cause of the complaining party’s injuries. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587.

In the negligent entrustment cases, it is also essential that the party sought to be held legally responsible have the right of control over the vehicle. McCarty had no right of control over the pickup here involved. For this element of “right of control” respondent would substitute McCarty’s request that Mrs. Purser be allowed to drive the pickup.

Colonel Jewell testified that he was responsible for the Ford pickup when he was operating it; that he drove up to the entrance of the Officers’ Club just as Captain McCarty, Mrs. Purser and Mr. Harris were leaving; that he had a conversation with them; that some interest in the radio upon the vehicle was expressed by one or more of the parties; that Mrs. Purser got into the pickup on the left-hand side and he, Jewell, moved over to the right; that Captain McCarty made a suggestion that Mrs. Purser drive the pickup, and that he, Jewell, agreed to this suggestion.

Mr. Harris testified that when Mrs. Purser, Captain McCarty and he met Colonel Jewell as they were leaving the club someone suggested that Mrs. Purser drive the pickup in which Colonel Jewell was seated; that he did not recall who first made the request; that Captain McCarty discussed this with Colonel Jewell and asked him to let Mrs. Purser drive the vehicle.

Mrs. Purser testified that upon the occasion in question there was some conversation about her talking with the tower over the radio, but someone said that, “It would not be a good idea for a woman’s voice to be heard on there”; that something was said about her driving the pickup; that Captain McCarty made the suggestion; that she didn’t recall if anyone else joined in the suggestion or not; that Mr. Harris made a remark but she didn’t recall what it was.

We relate these three versions to show that there was nothing in any of them to suggest that Colonel Jewell was under any form of obligation, or subject to unusual pressure to grant the request that Mrs. Purser be allowed to drive the pickup. He had not been with the party throughout the evening and there is no basis for saying that his will was affected or that he was rendered susceptible to persuasion by the evening’s activities. All we have is a simple request that Mrs. Purser be allowed to drive the pickup. In our opinion, liability could not be predicated upon this request, and respondent cites no authorities supporting her position in this regard. Both Colonel Jewell and Mrs. Purser were adults and responsible for their actions and omissions. Colonel Jewell was the one who entrusted the pickup to Mrs. Purser. We decline to extend the doctrine of negligent entrustment by analogy to one who, having no control over the vehicle, simply requests the custodian to allow another person to drive it. As such a request could not form the basis of liability, it could not serve as a ground of defense available to Mrs. Purser.

The judgments of the courts below are reversed and judgment here rendered that Paul M. McCarty do have and recover judgment against Doris Purser, joined by her husband, Windell Ford Purser, for the principal sum of $6,845.00 (the amounts found by the jury as damages sustained by McCarty), together with interest thereon from February 8, 1963 (the date of the trial court’s judgment) at the rate of six per cent per annum, and all costs of suit.

Reversed and rendered.

      . See, Calvert “No Evidence” and “Insufficient Evidence”, 38 Law Review 361; King v. King, 150 Tex. 662, 244 S.W.2d 660 (1952) ; Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814 (1959).

      . McCarty remembered nothing of the events immeliatoly preceding the collision because of a head injury.

      . Under certain conditions, intoxication may be a somewhat indefinite and illusive concept. It is stated by Dr. Leon Green-burg in 16 Quarterly Journal of Studies on Alcohol 31G, that:
      “When we say that a person is drunk or intoxicated we mean not simply that his efficiency is less, that his behavior has changed, or that he feels better, but that his bodily functions and mental faculties are in an unmistakably abnormal state. Any other use of the term intoxication becomes merely an arbitrary and personal expression of disapproval, and as such loses scientific and practical usefulness.”
      There are other tests of varying degree of strictness as witness the old Virginia rule which stems from the dictum of a justice of the peace that: “In this court a man is not drunk unless he has to hold onto the grass to keep from falling off the face of the earth.”
      Dr. Greenburg also states that the consensus of observers in biochemistry is that abnormal behavior is usually noticeable when the blood alcohol content rises above 0.15 per cent. The time element is of importance as each hour the body eliminates one ounce of distilled spirits of approximately fifty per cent alcohol. The line between “a few drinks” and intoxication may be a fine one under certain circumstances. It is not of particular importance here. Insofar as Colonel Jewell is concerned, it cannot be said that his physical movements or functions were abnormal. And, he was the one who was in control of the pickup truck.


author: GREENHILL, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASS’N, Petitioner, v. William Fred NEUMAN, Respondent.
    No. A-9927.
    Supreme Court of Texas.
    May 20, 1964.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, for petitioner.
    John J. Watts and Thomas A. Sneed, James D. Cunningham, Odessa, for respondent.
   GREENHILL, Justice.

This is a workmen’s compensation suit. In the trial court, the injured workman, William Fred Neuman, recovered for injuries to his leg. He was not satisfied with the amount of the recovery and appealed. The Court of Civil Appeals reversed the judgment of the trial court because of the manner of submission of the jury issue as to whether the injury was confined to his leg. 377 S.W.2d 108.

Neuman sought to recover for total and permanent incapacity because of a general injury. Special issues were submitted on this theory. His leg was broken, but he contended that his back was also injured and that injury also resulted in his having stomach ulcers. The defendant insurance company sought to limit the recovery to incapacity resulting from an injury to the plaintiff’s leg. In this connection, the company requested that two special issues be submitted to the jury:

1. Do you find * * * that the plaintiff’s injury, if any, and 1he effects thereof, if any, are confined to his right leg?
2. Do you find * * * that the incapacity, if any you have found, is not caused solely by the incapacity or loss of use, if any, to the plaintiff’s right leg?

Plaintiff’s counsel’s only objections to the submission of either or both of these issues were (1) there was no evidence and (2) there was insufficient evidence to support the submission of the issue or issues. Particularly, there was no objection to the form of the first issue, and no contention that it failed to state properly the elements necessary to limit the recovery to the specific injury.

The trial court gave tire first of these issues requested by the defendant and refused to give the second. There was no objection by plaintiff’s counsel to the court’s refusal to submit the second issue. The jury answered the first in the affirmative: that the in jury and its effects were confined to the plaintiff’s right leg. On appeal, counsel for the plaintiff contended that the plaintiff was entitled to a new trial because the trial court refused to submit the second issue requested by the defendant. He contended, and the Court of Civil Appeals agreed, that the correct way to submit the issue (limitation to the leg) was the second issue which had been requested by the defendant but refused by the trial court.

Rule 274 of the Texas Rules of Civil Procedure says that objections to the court’s charge “must point out distinctly the matter to which he objects and the grounds of his objection.” It then continues:

“Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.” [Emphasis ours.]

Under Rule 274, any objection to the first issue must have been made in the trial court, before the case was submitted to the jury. Otherwise the objection was waived. We hold that it was waived here. Cox v. Huffman, 159 Tex. 298, 319 S.W.2d 295 (1959).

Further, Rule 279 provides that failure to submit an issue shall not be deemed a ground for reversal unless its submission has been requested in writing in substantially correct wording. It continues :

“ * * * provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party.”

The issue here was one relied upon by the opposing party [the defendant], but plaintiff had no objection to the failure of the court to submit it. Hence under Rule 279, the failure to submit the issue was not grounds for reversal of the judgment.

Counsel for the plaintiff further argues that the burden was on the defendant to get the correct submission of an issue or issues which would support a judgment which limited plaintiff’s recovery. The objection to issue No. 1 made by plaintiff’s counsel in his brief in the Court of Civil Appeals [he has filed no brief in this Court] is that the issue should have been, “Was the injury or its effects confined to the right leg?” The issue given asked if the injury and the effects thereof were confined to the right leg. In the issue given, the defendant was put to a more difficult burden: it had to convince the jury that both the injury and its effects were confined to the leg. It is our opinion that the issue, unobjected to, will support the judgment of the trial court.

Finally, plaintiff’s counsel contends that the failure to submit defendant’s requested issue No. 2 was objected to; that the defendant itself excepted to the court’s failure to give defendant’s requested issue. From this, plaintiff’s counsel says that the failure of the court to submit defendant’s issue was called to the court’s attention, and this is all that should be required. The contention is overruled. The defendant was satisfied with the trial court’s judgment and did not bring forward on appeal any complaint of the failure of the trial court to submit its requested issue. And there is no basis, under Rule 279, for plaintiff, in the circumstances set out above, to complain on appeal for the failure of the court to submit the defendant’s second requested issue.

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

      . Technically the first of the above issues was defendant’s requested issue No. 2 and the second was the requested issue No. 6. Both were followed by a supporting issue inquiring as to the percentage of loss of use of the leg. The jury found that the loss was 35%. For purposes of simplicity, the two requested special issues will here be called requested issues 1 and 2. The issue on percentage of loss is not challenged and will not he discussed.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Petitioner, v. Levoy MUSICK, Respondent.
    No. A-9922.
    Supremo Court of Texas.
    May 13, 1964.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, with above firm, Houston, for petitioner.
    C. C. Divine, Houston, for respondent.
   NORVELL, Justice.

The trial court sustained petitioner’s motion for summary judgment. The Court of Civil Appeals reversed. We sustain petitioner’s second point contained in its application for writ of error which asserts that:

“The Court of Civil Appeals erred in reversing and remanding because respondent’s general denial and affidavit in answer to petitioner’s motion for summary judgment, even if considered, did not create any issues of fact as between respondent and petitioner.”

Accordingly the judgment of the Court of Civil Appeals is reversed and the judgment of the trial court affirmed.

General Motors Acceptance Corporation filed suit against Levoy Musick seeking a recovery of $4,374.15, plus interest and attorney’s fees, because of Musick’s failure to meet the payments prescribed in a time sales contract dated March 21, 1962 between Frizzell Pontiac, Inc. as seller and Levoy Musick as buyer covering a 1962 Pontiac Station wagon. The performance of the sales contract was secured by a chattel mortgage covering the station wagon. Both the sales contract and the chattel mortgage were assigned by Frizzell Pontiac, Inc. to the plaintiff-petitioner, General Motors Acceptance Corporation. A sworn copy of the conditional sales contract was attached to the petition. This contract provided that the “seller reserved title and shall have a security interest in said property until said obligation is fully paid in cash.” This instrument constituted a chattel mortgage under Article 5489, Vernon’s Ann.Tex.Stats.

On December 3, 1962, Musick filed what he called an original answer and cross-action. This instrument consisted of two special exceptions and a general denial followed by this cryptic notation: “Cross-action * * * to follow.” The instrument contained no allegations which could possibly form the basis for a cross-action. It did not contain a plea of non est factum, failure of consideration or anything of that nature, nor was it sworn to.

On December 27, 1962 General Motors Acceptance Corporation moved for summary judgment. It adopted the conditional sales contract as a part of the motion and pointed out that the answer of Musick consisted of “an unverified pleading in the nature of a general denial.”

The motion was set for hearing on January 14, 1963 and on that day, — one day late under the provisions of Rule 166-A, (c), Texas Rules of Civil Procedure, Musick filed his affidavit and an instrument designated as an “Answer to plaintiff’s motion for summary judgment.” Despite this late filing, the trial judge evidently considered this instrument. This answer to the motion for summary judgment avers that the sales contract attached to plaintiff-petitioner’s petition contained a provision (which it did ) that:

“No warranties, express or implied and no representations, promises or statements have been made by seller (Frizzell Pontiac, Inc.) unless endorsed hereon in writing, except that, if the property covered by this contract is a new motor vehicle, seller hereby adopts the warranty against defective materials or workmanship as set forth in manufacturer’s current warranty applying to such motor vehicle.”

The terms of the manufacturer’s warranty are not set out. It is stated in Musick’s affidavit that the Pontiac station wagon sold to him had “a defective motor, a defective electrical system and a defective transmission.” It is stated that Frizzell Pontiac, Inc. had failed to remedy such defects but there is nothing to show what it would cost to procure a new motor, electric system or transmission, nor is it shown in dollars and cents how these defects would affect the market value of the station wagon. This affidavit even if given the effect of a formal pleading is insufficient as a matter of law to raise the defense of failure of consideration, or to assert a cross-action based upon a breach of warranty. The terms of the manufacturer’s warranty assumed by Frizzell are nowhere disclosed and this is the only warranty mentioned in the record. Neither the manufacturer nor Frizzell are parties to this suit. General Motors Acceptance Corporation did not sell the automobile to Musick. In this connection, see Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908; J. B. Colt Co. v. Reeves, Tex.Civ.App., 266 S.W. 564, no wr.; Martin v. Auto Finance Co., Tex.Civ.App., 25 S.W.2d 919, no wr.

This case is one based upon a promise to pay contained in a written instrument, the execution of which was properly shown by affidavit. No defense to a recovery on this instrument is brought forward. In this state of the record the only judgment that could have been rendered was that which was rendered by the trial court. Southwestern Fire & Casualty Co. v. Larue, Tex.Sup., 367 S.W.2d 162 (1963).

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

      . Opinion reported 372 S.W.2d 767.