author: BATEMAN, Justice.

text:
    Maurice BALL, Appellant, v. COOPER-STANLEY COMPANY, Inc., Appellee.
    No. 16854.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1967.
    Rehearing Denied March 24, 1967.
    Henry Stollenwerck, of Biggers, Baker, Lloyd & Carver, Dallas, for appellant.
    June R. Welch, Dallas, for appellee.
   BATEMAN, Justice.

The appellee Cooper-Stanley Company, Inc. sued the appellant Maurice Ball to recover a balance claimed to be owing for paving done by appellee. Appellant filed a counterclaim for damages for alleged breach by appellee of the contract to do the paving.

At the close of the evidence the court withdrew from jury consideration appel-lee’s claim against appellant and granted its motion for judgment on its “sworn account” for $3,400.75 on the ground that appellant had not sworn to his answer opposing the same. The court then submitted to the jury five special issues, in answer to which the jury found: (1) that $1,000 would be a reasonable fee for ap-pellee’s attorney for representing it; (2) that appellee did not perform the agreement for the paving in a workmanlike manner in accordance with the agreement; (3) that defects existing in the work done by appellee could be remedied without impairing the road as a whole; (4) that $3,750 would be the reasonable cost of repairing the defects; and (5) that the defects were not caused by the condition of the base of the roads beneath the asphalt. The court then rendered final judgment for appellee against appellant for the sworn account of $3,400.75 and the $1,000 attorney’s fee, or a total of $4,400.75, and judgment on the verdict in favor of appellant against ap-pellee for the $3,750, the difference of $650.75 representing the net judgment rendered in favor of appellee.

Appellant’s only point of error on appeal complains of the judgment against him on sworn account because of his failure to swear to his answer thereto, contending that this suit, being for the amount claimed to be due under a special contract, does not come within the purview of Rule 185, Vernon’s Texas Rules of Civil Procedure. We agree with this contention.

The contract consists of a “proposal” submitted by appellee to appellant dated October 15, 1964. In the caption thereof appear the names of two streets in the City of Hutchins, Texas, and the following are the provisions and conditions of the proposal :

“Work to be completed:
“Shape existing gravel base, tack concrete edges with RC2 liquid asphalt, and lay 2 inches of hot plant mix asphaltic concrete on area approximately 11,000 square yards @ 82‡ per square yard.
“Job will be measured on completion.
“Guarantee job for one year.
“Remove large rocks from base.
“Work to begin immediately, completion as soon as weather permits.

“A payment for approximately one half to be paid when the job is one half completed, and the balance to be paid immediately upon completion. $250 to be subtracted from final payment as Cooper-Stanley Company’s share of the payment made to Poovey and Wooten, Inc.

“All material is guaranteed to be as specified. All work to be completed in workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmen’s Compensation Insurance.”

Immediately following the “proposal” we find the following:

“ACCEPTANCE OF PROPOSAL
“The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above.
“ACCEPTED:
“Date Oct. 16, 64
“Signature /s/ Maurice Ball “/t/ Maurice Ball
“Signature /s/ R. E. Stanley “/t/ Cooper-Stanley Company, Inc.”

Appellee contends that said agreement does not constitute an enforceable contract because it leaves four factors undetermined: (1) the number of square yards of paving, (2) the consideration to be paid, (3) the date of completion, and (4) the time of final payment. We overrule this contention, agreeing with appellant that the agreement is sufficiently definite to constitute a “special contract,” as that phrase is used in Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78. The Supreme Court in that case held that a "sworn account,” as used in Rule 185, T.R.C.P., “applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between parties resting upon special contract.” See also McCollum v. May, Tex.Civ.App., 396 S.W.2d 170, 172, no wr. hist.; Kirkwood & Morgan, Inc. v. Roach, Rig Bldg. & Const. Co., Tex.Civ. App., 360 S.W.2d 173, wr. ref. n. r. e.

There was also error in allowing appellee the attorney’s fee of $1,000. This fee was claimed under Vernon’s Ann. Civ. St., Art. 2226 on the theory that the main cause of action was on sworn account within the purview of Rule 185, T.R.C.P., but, as indicated above, this premise is untenable; therefore, Art. 2226 is inapplicable. Van Zandt v. Fort Worth Press, Tex.Sup. 1962, 359 S.W.2d 893; Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435, 441.

For these reasons that part of the judgment which awarded appellee $3,400.75 and an attorney’s fee of $1,000 is reversed and remanded.

By its first two cross points appellee complains of the lack of evidence to support the submission of Special Issues Nos. 2, 3, 4 and 5 or the jury’s answers thereto. The third cross point says that those answers were against the great weight and preponderance of the evidence.

As appellant’s cause of action for damages is based upon the alleged breach by appellee of the very contract upon which appellee’s cause of action is based, and the two causes of action are therefore not sev-erable, the reversal of appellee’s judgment makes it necessary for us to reverse appellant’s judgment in order that the entire case may be tried at one time. Therefore, without passing upon the cross points or making any finding with respect to the sufficiency vel non of the evidence, and simply because there is no authority in the law for “the trial of an indivisible cause of action by piecemeal,” Phoenix Assur. Co. of London v. Stobaugh, 127 Tex. 308; 94 S.W.2d 428, we reverse the entire judgment and remand the entire case for another trial. See also Texas Employers’ Ins. Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W. 2d 929.

Reversed and remanded.

ON MOTIONS FOR REHEARING

Both parties have moved for rehearing.

Appellant contends that the jury verdict settled all justiciable issues between the parties and that we should reverse and render judgment for him for the amount of damages found by the jury. We cannot do this. Appellee’s case against appellant for the indebtedness claimed was never submitted to the jury. As shown by the judgment, the court sustained appellee’s motion for judgment before any charge was submitted to the jury. This was error requiring reversal. Appellee was not entitled to have its claim withdrawn from the jury and decided by the court as a matter of law, as was done, but it was entitled to have the issues involved in its claim submitted affirmatively to the jury. We remanded the case in order that that might be accomplished.

Appellant says that in that event we should remand only that part of the case which involves appellee’s claim and affirm that part of the judgment in appellant’s favor.

Appellee brought this suit originally, and if appellant had a claim against appellee arising “out of the transaction or occurrence that is the subject matter of the opposing party’s claim,” he was compelled by subdivision (a) of Rule 97, T.R.C.P., to state it as a counterclaim in appellee’s suit. The fact that the rule makes it a compulsory counterclaim indicates clearly the policy of the law “to avoid circuity of action, inconvenience, expense and consumption of the court’s time in trying” such a counterclaim in an independent suit. Ulmer v. Mackey, Tex.Civ.App., 242 S.W.2d 679, 681, wr. ref. n. r. e.; Bolding v. Chapman, Tex.Civ.App., 394 S.W.2d 862, wr. ref. n. r. e. The entire case must be tried as one case; it cannot properly be tried piecemeal. It was tried on the wrong theory and must, therefore, be tried again.

Both motions for rehearing are overruled.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Douglas Edward HALL, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 11484.
    Court of Civil Appeals of Texas. Austin.
    March 22, 1967.

      Mark A. Troy, Jr., Dallas, for appellant.
    Crawford Martin, Atty. Gen., Howard M. Fender, Robert E. Owen, Asst. Attys. Gen., Austin, Bill Lofland, County Atty., Rock-wall, for appellee.
   PHILLIPS, Chief Justice.

A Justice Court of Rockwall County, Texas made an affirmative finding that appellant was an habitual violator of the traffic laws having had four convictions arising out of different transactions in a consecutive period of twelve months for moving violations under the provisions of Vernon’s Ann.Tex.Rev.Civ.Stat. art. 6687b, Secs. 22(a) and (b).

Pursuant thereto, the Department of Public Safety issued its order suspending his driver’s license for a period of six months.

Appellant appealed to the County Court of Rockwall County to set aside the order under Tex.Rev.Civ.Stat.Ann. art. 6687b, Sec. 22(c).

The Department of Public Safety filed its answer and cross-action to the suit, together with its sworn motion for summary judgment, seeking suspension of appellant’s license for a period of twelve months.

Appellant did not answer or otherwise formally reply to the Department’s cross-action or motion for summary judgment.

Upon hearing the County Court found that there was no genuine issue of fact to be determined, that the law was with the Department and entered summary judgment for the Department on its cross-action suspending appellant’s driver’s license for a period of twelve months.

We affirm this judgment.

Appellant is before this Court on four points of error. Point of error number two (points one, three and four having been briefed together will be discussed together) is that of the trial court in rendering a judgment of suspension of appellant’s license because the notices of conviction of defendant for violations of the Uniform Traffic Code were insufficient upon which to base a judgment in that no showing was made that Judgments of conviction were entered on the records of the Department-Appellee nor upon any of the courts presiding over the four (4) hearings upon which the suspension was based prior to the administrative hearing by the Justice of the Peace.

We overrule this point.

Appellant complains because the notices of conviction for traffic violations were insufficient upon which to base a judgment.

The Department’s cross-action alleges that Hall was an habitual violator of the traffic laws and recites fully the dates of commission of four moving traffic violations within a twelve month period arising out of different transactions, and the respective dates of conviction in each case. It alleges the same were final convictions and reflects the venue of the offenses, the court in which each was tried, the docket number of each case and the fine assessed and paid in each case. It further alleges that each offense was a moving traffic violation, towit, speeding.

Appellant filed no special exceptions and no answer to the cross-action.

The Department’s motion for summary judgment also fully sets forth that the statutory requirements had been complied with leading up to the suspension order.

Appellant did not reply to or otherwise controvert the motion for summary judgment.

Attached and incorporated into the motion for summary judgment as exhibits were the suspension order of the Department, a certificate from the Department’s deputy custodian of driver records (showing appellant’s traffic violations), and four properly authenticated notices of conviction showing he had been convicted of four moving traffic violations in a consecutive period of twelve months.

Each notice of conviction recited the name and address of the appellant, the number of his commercial operator’s license, the registration number of the vehicle involved, the nature of the offense as speeding, the name of the court, the docket number of the case, the date of the offense, the plea, the date of hearing, the judgment and the amount of fine paid.

Each notice was properly authenticated and in substantial compliance with the provisions of Tex.Rev.Civ.Stat.Ann. art. 6701d, Sec. 152. The notices are public records required to be maintained under the authority of Tex.Rev.Civ.Stat.Ann. art. 6687b, Secs. 21 and 25, and were admissible into evidence as such public documents under Tex.Rev.Civ.Stat.Ann. art. 3731a. Since they were admissible, when incorporated into the motion for summary judgment, these notices of conviction were prima facie evidence of the matters stated therein. Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.1964); Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (Tex.1964).

Appellant did not controvert or otherwise formally reply to the motion for summary judgment, and being admissible, the notices of conviction are presumed to reflect correctly the provisions of the respective judgments upon which they are based. It was then incumbent upon Hall to contradict or rebut the validity of the convictions and the suspension order. Texas Department of Public Safety v. Richardson, supra; Cooley v. Texas Department of Public Safety, 348 S.W.2d 267 (Tex.Civ. App. Fort Worth, 1961, no writ).

The failure to reply or controvert this sworn testimony in a manner recognized by Texas Rules of Civil Procedure, rule 166-A, forestalls legitimate complaint at this time. Smith v. Texas Department of Public Safety, 352 S.W.2d 958 (Tex.Civ. App. Fort Worth, 1962, no writ).

Also by Point Number 2, appellant bases much of his argument upon lack of notice, insufficiency of evidence and other events which allegedly occurred at the administrative hearing conducted before the Justice Court.

The hearing in the County Court was a trial de novo under the provisions of Tex.Rev.Civ.Stat.Ann. art. 6687b, Sec. 22(a), (c), and the proceedings in the Justice Court are immaterial and irrelevant in the County Court and outside the record in this appeal.

Any defect there may have been in notice concerning the administrative hearing was rendered harmless by the de novo hearing in the County Court. Texas Department of Public Safety v. Richardson, supra.

Appellant made no showing that he had not committed the offenses for which he was convicted. He merely attempts a collateral attack upon the finality of the judgments of conviction for moving traffic violations. There is no evidence in the record to support such an attack.

Where appellant complains that the notices of conviction were at variance with the judgments thereunder, or the notices were inaccurate, he could have corrected them by the use of properly authenticated copies of the docket of the Justice of the Peace or Corporation Court Judge. Texas Department of Public Safety v. Richardson, supra.

The notices, or abstracts, may be corrected, but until corrective measures are taken, such notices, or abstracts, are to be accepted as evidence of “the matters stated therein.” Texas Department of Public Safety v. Miller, supra.

It is well settled that the notices ot conviction are proper evidence and will support a summary judgment in a driver’s license suspension case. Smith v. Texas Department of Public Safety, supra. There were no genuine issues as to any material fact; therefore the County Court properly rendered summary judgment herein.

Appellant’s points of error 1, 3 and 4 are that of the trial court in refusing the service of a court reporter to record all the testimony in this case; appellant challenges the qualifications to the bills of exception filed in this Court in that the County Court of Kaufman County is a court of record in this State and appellant was entitled to have a court reporter available and not to be placed in a position of impliedly waiving a court reporter or being unable to go to trial; appellant challenges the qualifications to the bills of exception filed in this Court in that appellant was entitled to have a court reporter available to record the testimony and evidence in the court below and not be required to rely upon bills of exception.

We overrule these points.

Appellant contends that he was told that a court reporter was unavailable and that he was forced to go to trial without the services of a court reporter. Nowhere in the record is there anything to indicate there was a refusal to provide a court reporter or that he was forced to trial without one.

Appellant attempts to bring the matter before, this Court by his bill of exception. Such bill of exception was refused because the same was incorrect and not filed within the proper time.

In refusing appellant’s bill of exception No. 4, the County Judge qualified it by stating appellant was informed the securing of a court reporter would cause delay in the hearing, but that if he (appellant) so desired, a court reporter would be secured. The Judge’s qualification further states the hearing was commenced only after appellant, through his attorney, agreed to proceed without a court reporter.

The record contains no exception or objection • to the qualification by the judge, therefore this Court should review the bill of exception in light of its qualified form. Kirkland v. Texas and Pacific Ry. Co., 372 S.W.2d 367 (Tex.Civ.App. El Paso 1963, writ ref’d n. r. e.).

The record contains no formal or seasonal demand for the services of a court reporter. Further, appellant agreed that a court reporter would not be necessary before proceeding to trial. Appellant cannot now insist this was error where he expressly waived the services of a court reporter.

As to appellant’s points relating to the qualifications of his bills of exception, final judgment was signed and entered herein June 1, 1966. Appellant’s bills of exception were presented on July 29, 1966 or 58 days later, which is a period in excess of the time within which to file bills of exception as required by Tex.R.Civ.P 381(a).

The trial court’s judgment is affirmed

Affirmed.


author: COLLINGS, Justice.

text:
    VINCENT MURPHY CHEVROLET COMPANY, Inc., Appellant, v. AUTO AUCTION, INC., Appellee.
    No. 4135.
    Court of Civil Appeals of Texas. Eastland.
    March 10, 1967.
    Rehearing Denied April 7, 1967.

      Thornton, Thornton & Fisher, R. E. Thornton, Olney, for appellant.
    Key, Carr & Clark, Donald M. Hunt, Lubbock, for appellee.
   COLLINGS, Justice.

Auto Auction, Inc., a California corporation, brought suit against Vincent Murphy Chevrolet Company, Inc. of Archer City, Texas, and Norman Cadle for breach of an implied warranty of title to an automobile sold to plaintiff and on the agreement of the Chevrolet company to indemnify subsequent purchasers. Cadle did not answer and an interlocutory default judgment was rendered against him. Vincent Murphy Chevrolet Company, Inc. filed a general denial. After the filing of depositions and affidavits by both parties, plaintiff moved for a summary judgment against the Chevrolet company for its breach of warranty and prayed that the interlocutory judgment against Cadle be made final. The Chevrolet company filed an affidavit in opposition to the motion for summary judgment and prayed that in the event judgment should be rendered against it that it should have a like judgment against Cadle. Cadle made no answer to the cross claim and upon a hearing of the motion for summary judgment, judgment was rendered jointly and severally against the Chevrolet company and Cadle. The Chevrolet company was granted a like judgment over against Cadle. Vincent Murphy Chevrolet Company has appealed.

The record shows that appellee Auto Auction, Inc. does business under the names of Los Angeles Auto Auction and Los Angeles Dealer Auto Auction. It acts as a clearing house for new and used car dealers, handles automobiles on a commission basis, taking title from the seller and passing title to the buyer. Harold C. Henry, one of the affiants to appellee’s motion for summary judgment, is appellee’s president and Tom Ellis, another affiant, is appellee’s general manager. The president of appellant, Vincent Murphy Chevrolet Company, Inc., is Vincent Murphy and its vice president is Dale Murphy. It is undisputed that on or about November 13, 1963, Norman Cadle contacted appellant’s president, Vincent Murphy, and requested appellant to finance the purchase of five Cadillac automobiles which Cadle desired to purchase from E. R. Broom. It is shown that Cadle and appellant agreed that appellant would finance the purchase of such automobiles, including the one here in question and would hold open titles thereto until they were sold by Cadle; that appellant would receive the proceeds of the sales and apply same to the amount owed to it by Cadle; that when the full amount of Cadle’s debt, including financing costs, was repaid any additional amounts received would belong to Cadle. It is undisputed that Broom delivered titles to the automobiles to appellant at its office in Archer City and was paid $15,000.00 therefor by appellant.

Thereafter Cadle came to appellant’s office and signed a chattel mortgage note in the amount of $15,000.00 covering the purchase price of the five automobiles. Under the agreement between the parties appellant was to hold the title to such automobiles as agent for Cadle and deliver them upon Cadle’s order. Appellant asserts that Cadle was never authorized to represent it or to represent to others that he was working with or for it. Appellee admits that it can not establish that appellant was not Cadle’s agent but asserts that it had no knowledge of the existence of such agency, and that Cadle’s representations, which it believed, were to the contrary.

The record shows that appellee’s first connection with the matter involved was on November 16, 1963, when Norman Cadle delivered a 1963 Cadillac 6 passenger coupe DeVille with 1963 license plates for the State of Nebraska to appellee’s general manager, Tom Ellis. Cadle represented to Ellis that he was working for appellant, delivering and selling automobiles and that the Cadillac in question was owned by appellant, and that he was authorized by appellant to sell such automobile. At that time Ellis agreed to purchase the Cadillac for appellee and neither he nor appellee had any knowledge concerning the arrangement between appellant and Cadle except what Cadle told him. Ellis believed that appellee was purchasing the automobile from appellant and contracted for appellee on that basis. Ellis thereupon agreed with Cadle, on appellee’s behalf, to purchase the Cadillac for $4123.09 and the automobile was left with appellee for resale. Three days later appellee, believing that it had title to the automobile, sold it to Shattuck Avenue Motors in Berkeley, California.

Appellant was informed by Cadle that he had sold the Cadillac in question to ap-pellee. Under instructions from Cadle appellant thereupon endorsed the title to ap-pellee and executed certain other title papers required by the State of California. The title documents did not arrive in California until a few days later. Included in such title documents, which were dated November 23, 1963, was a bill of sale executed solely by appellant Vincent Murphy Chevrolet Company by the signature under oath of Dale Murphy. The bill of sale recited a consideration of $10.00. It purported to sell to appellee appellant’s right, title and interest in and to the automobile in question. It warranted that appellant was the owner of said vehicle, warranted title thereto and that it was free from any liens and encumbrances. Another title document bearing the same date was the State of California Department of Motor Vehicles’ statement of facts. This document bearing appellant’s signature by Dale Murphy under oath recited that the vehicle in question entered California on November 16, 1963, on Texas dealers’ license P8402; that appellant agreed to indemnify and save harmless subsequent purchasers of said vehicle from loss. Also among the title documents was the dealers’ reassignment of title of the same date executed under oath by appellant by said Dale Murphy, reciting that appellant for value received did sell and assign to appellee the motor vehicle in question and did warranty the title of said vehicle to be free of all liens and encumbrances, except as noted on the face of the title. After appellee had received and examined the above described title documents and in reliance upon same and the representations made by Cadle, it executed its check payable to appellant in the amount of $4,123.09. The check was sent to appellant in payment of the Cadillac in question, was received, endorsed and cashed by appellant and returned to appellee through regular banking channels. It is undisputed that Dale Murphy executed the title documents for appellant and there is nothing in the record showing that appellant ever communicated to appellee the fact that appellant was only a financing agent for Cadle.

The record further shows that the automobile in question was a stolen car, the theft having occurred prior to and without the knowledge of any of the parties hereto. It is undisputed that appellee was required to pay $4,000.00 to the U. S. Fidelity & Guaranty Company to make good on the title.

Appellant presents points urging that the court erred in granting summary judgment against it, contending that (1) there is a fact issue as to whether or not Norman Cadle was an express or implied agent of appellant, and (2) a question of fact or a question of interpretation of the facts as to whether or not Cadle had ostensible or apparent authority to deal with appellee as agent for appellant. These points are overruled.

Controlling in our opinion are the undisputed facts that appellant Vincent Murphy Chevrolet Company, Inc. advanced the money for the purchase of the automobile, and for its protection acquired a lien thereon, placed Cadle in possession of the vehicle and allowed him to put it on the open market for sale, thereby making it possible for Cadle to appear as the agent of appellant authorized to sell said automobile ; that appellant then signed title papers representing and asserting under oath that it was the lawful owner of the automobile, warranting and guaranteeing title thereto, and that it would indemnify subsequent purchasers against loss; that appellee relied upon such facts and representations and ostensible authority of Cadle, paid to appellant and appellant received as the purchase price of said automobile $4,129.09. Although appellant asserts that it was only an agent of Cadle the title papers did not disclose that appellant had signed same in a representative capacity, and it is undisputed that appellant did not disclose the fact of its agency to appellee Auto Auction, Inc. Since it is undisputed that appellee did not know that appellant was acting only as agent for Cadle, appellant became personally liable by signing its name under oath as owner and by failing to disclose its principal. In Mahoney v. Pitman, 43 S.W.2d 143 (Tex.Civ.App. 1931, writ ref.), the rule is stated as follows :

“It is the duty of the agent, if he would avoid personal liability on a contract entered into by him on behalf of the principal, to disclose not only the fact that he is acting in a representative capacity but also the identity of his principal, as the person dealt with is not bound to inquire whether or not the agent is acting as such for another.”

See also Lachmann v. Houston Chronicle Publishing Company, 375 S.W.2d 783 (Tex.Civ.App.1964 n. r. e.), and authorities cited therein.

Even if it should be found that appellee knew or that there was a question of fact concerning whether appellee knew that appellant was only the agent of Cadle, still appellant would be liable because it personally obligated itself to protect its own interest. It is bound by such obligation. Appellant had an interest of its own to protect in that it furnished the purchase price of the automobile. It retained open title so that the signing of its name was necessary to pass title. Since it assumed individual responsibility for its own protection, appellant was bound by its warranties, guarantees and indemnities. In American National Bank v. American Loan and Mortgage Company, 228 S.W. 169 (Tex.Com. of App.1921) the rule is stated as follows:

“An agent, although his agency is known and who has authority to bind his principal through contract, is not precluded from binding himself personally upon such contract. Where upon a construction of the contract it is determined that the agent has substituted his own responsibility for that of his principal, or has pledged his own responsibility in addition to that of his principal, he will be bound accordingly. His liability is not predicated upon his agency, but upon his contract obligations.”

The following cases indicate the correctness of the rule above announced: Hogue v. Wilkinson, 291 S.W.2d 750 (Tex.Civ.App. 1956, no writ history) ; Land Title Bank & Trust Company v. Witherspoon, 126 S.W.2d 71 (Tex.Civ.App.1939, no writ history); Dublin Fruit Company v. Neely, 182 S.W. 406 (Tex.Civ.App.1916, no writ history); Merchants’ and Planters’ National Bank v. Jones, 173 S.W. 606 (Tex.Civ. App.1915, no writ history).

Appellant’s points are overruled. The judgment is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Esther Anna HOUGHTLING et al., Appellants, v. William Raymond DUSCH, Appellee.
    No. 16896.
    Court of Civil Appeals of Texas. Dallas.
    March 24, 1967.
    Barbara L. Welz, of Welz, Anderson & Rogers, Dallas, for appellants.
    Franklin H. Perry, of Thompson, Coe, Cousins & Irons, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Esther Anna Houghtling and husband, David H. Houghtling, and Carolyn C. Clarke, a feme sole, instituted this action for personal injuries and property damage against William Raymond Dusch. It was alleged by plaintiffs that on February 5, 1965 Carolyn C. Clarke was driving her automobile in which Esther Anna Hought-ling was riding as a passenger when the Clarke automobile was struck in the rear by an automobile being driven and operated by the defendant Dusch. The accident occurred at the intersection of Mc-Commas Avenue and McMillan Avenue in the City of Dallas. Carolyn C. Clarke alleged that she brought her vehicle to a stop at a stop sign preparatory to turning right onto McMillan Avenue at which time her vehicle was struck by the Dusch automobile being operated at a high rate of speed. The defendant answered, contending that the collision occurred as a result of contributory negligence on the part of Mrs. Clarke and Mrs. Houghtling.

The case was tried before a jury which rendered a special issue verdict finding Dusch to have been negligent in operating his automobile at an unreasonable rate of speed which proximately caused the collision in question. The jury also found that on the occasion in question Mrs. Clarke stopped her car, moved forward, then made a second stop which conduct on her part amounted to negligence which was a proximate cause of the collision. The jury acquitted Mrs. Houghtling of any act of negligence charged. As to damages, the jury found that the sum of $410.40 would reasonably and fairly compensate Mrs. Clarke for the injuries sustained by her and that the sum of $278.33 would be the reasonable and necessary cost of repairs to her automobile. The jury also found that the sum of $276.16 would reasonably compensate Mrs. Houghtling for injuries sustained by her. Based upon this verdict the trial judge rendered judgment denying Carolyn C. Clarke any recovery and awarding Mr. and Mrs. Houghtling the sum of $276.16 against defendant Dusch. All plaintiffs appeal.

By their first two points on appeal appellants contend that the trial court erred in refusing to give certain charges to the jury. These points may not be considered by us and are waived for the reason that the record fails to reveal a preservation of the alleged errors. No complaint was asserted by appellants in the trial court against the submission of any issue to the jury in the court’s main charge nor did appellants request the court, as they were required to do by the rules, that appropriate requested issues or instructions be given.

Appellants’ third and fourth points of error complain of the submission of Special Issues 14 and IS to the jury because there is no evidence, or insufficient evidence, to support the submission thereof, and also' complain because the trial court did not set aside and disregard the jury’s answers to-such Issues 14 and 15 for the reason that the answers were so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Appellants’ points are, as contended by appellee, multifarious but we have considered same separately.

Special Issue No. 13 inquired of the jury as to whether or not on the occasion in question Mrs. Clarke stopped her car, moved forward, then made a second stop. The jury answered this question in the affirmative. In Special Issue No. 14 the jury was asked to state whether or not such conduct, as inquired about in Special Issue No. 13, was negligence on the part of Mrs. Clarke, to which the jury answered “Yes”. In answer to Special Issue IS the jury found that such negligence on the part of Mrs. Clarke was a proximate cause of the collision in question. It is significant to observe that appellants do not challenge the submission of nor the answer of the jury to Special Issue No. 13.

In determining whether or not there is any evidence to support the submission of Special Issues 14 and IS or whether the answers of the jury in response thereto were-so contrary to the great weight and preponderance of the evidence we are governed by the rules announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244-S.W.2d 660. We have carefully reviewed, the entire record in the light of these rules and having done so we cannot agree with, appellants’ contentions set forth in their points 3 and 4. The questions of negligence- and proximate cause were properly submitted to the jury, without objection on the part of appellants, and both issues find support in the evidence. The jury heard the evidence of the parties, as well as investigating officers and arrived at their answers to the issues in question. We cannot say that the answers thereto were either not supported by any evidence or were contrary to the great weight and preponderance of the evidence. Appellants’ points 3 and 4 are overruled.

By their fifth point of error appellants contend that the court erred in not disregarding and setting aside the answers of the jury to Special Issue No. 20 and Special Issue No. 21, both having to do with the amount of damages sustained by Mrs. Clarke and Mrs. Houghtling, for the reason that the findings of damages were manifestly too small. This point is obviously multifarious and procedurally defective. However, we have considered the point and find the same to be lacking in merit and it is overruled. In their statement and argument under this point appellants contend that the jury, in answering the two special issues, awarded Mrs. Clarke and Mrs. Houghtling only certain itemized medical and other expenses and completely failed to award anything to either appellant for pain and suffering.

An examination of the record reveals that both Issues 20 and 21 were accompanied by various itemized elements which the jury might consider in arriving at their one answer to each issue. In other words, the jury was not called upon to render separate amounts for each element of damage claimed. Accordingly, it is impossible for us to state what portion of either of the sums so awarded by the jury in the respective special issues was awarded for any one element of damages. To do so would be to speculate upon the mental processes of the jury and this we are not allowed to do. Appellants’ statement that the jury obviously granted damages solely for certain specified medical and other expenses and did not award anything for mental and physical pain and suffering cannot be supported in this record. Such statement is predicated upon an assumption which would of necessity be based on speculation or an interpretation of the mental processes of the jury not revealed by this record.

From our examination of the record we are unable to state, as a matter of law, that the verdict of the jury is manifestly too small, which would require a reversal.

The judgment of the trial court is

Affirmed.


text:
    CITY OF GARLAND, Texas, Appellant, v. S. H. LYNCH & ASSOCIATES, Appellee.
    No. 16895.
    Court of Civil Appeals of Texas. Dallas.
    March 17, 1967.

      Cary Young, City Atty., Garland, for appellant.
    Max Rosenfield, Mike McKool, of Mc-Kool, McKool & Jones, Dallas, for appellee.
   BATEMAN, Justice.

This suit was brought originally in the district court by appellees as owners of a strip of land in the City of Garland, Texas, 30 feet wide and 490 feet long. Alleging that the appellant, City of Garland, had entered upon the premises and begun construction of a public street thereon, the ap-pellees sued, not only for possession and removal of cloud on their title, and for damages, but also for injunction restraining appellant from further entering upon the premises and continuing the construction work thereon. The appellant answered with a plea of not guilty, a general denial, and a special plea that the appellees had impliedly dedicated the land to the public for street purposes. By counterclaim the appellant also pled, in the alternative, as authorized by Vernon’s Ann.Civ.St., Art. 3269, its right to take the land by eminent domain for public street purposes.

At the end of a nonjury trial, the trial court decreed the appellees to be the owners of the land; that appellant recover an easement for public street purposes, upon, over and across the land, and awarding to appel-lees $6,615 as compensation therefor. Findings of fact and conclusions of law were filed, including findings of no dedication of the land by the appellees and no acceptance of any dedication by appellant.

By its first point of error on appeal the appellant says the trial court erred in determining that appellees had not dedicated the land for street purposes. The only evidence relied on by appellant to establish such dedication was the execution by ap-pellees of two deeds, one in 1959 and the other in 1960, by which they conveyed to various individuals certain acreage lying west of Shiloh Road. These deeds conveyed the land by metes and bounds and each referred to the east boundary thereof as being the “west line of Shiloh Road.” The description in each deed, however, was such as to leave the strip 30 feet wide and 490 feet long lying between the acreage conveyed and Shiloh Road. It is appellant’s theory that by giving the deeds mentioned the appellees sold the properties to the grantees therein upon the representation of frontage of the properties on Shiloh Road, and that, since appellees knew the deeds would be placed of record, they also thus represented to the public that the properties conveyed fronted on Shiloh Road. Appellant then argues that appellees are estopped to deny their dedication of the land.

In determining whether the trial court’s findings are supported by any evidence of probative value, we give credence only to the evidence favorable to the findings, disregarding all evidence to the contrary. The findings of fact and the conclusions of law will be construed together, and if the fact findings are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. Brown v. Frontier Theatres, Inc., Tex.Sup.1963, 369 S.W.2d 299, 301.

Moreover, we are bound by the trial court’s findings of fact supported by evidence, and they must be upheld unless manifestly erroneous. We are authorized to overrule them only when they are not supported by any evidence of probative force or are so against the weight and preponderance of the evidence as to be obviously wrong. Bavousett v. Bradshaw, Tex.Civ.App., 332 S.W.2d 155, 159, wr. ref. n. r. e., and cases cited therein.

There was ample evidence to support the findings of no dedication and no acceptance. In 1965, several years after the above mentioned deeds were given, the appellant endeavored to obtain from ap-pellees a conveyance of the property in question, but appellees refused to sign it. On August 3, 1965, appellant’s city council passed an ordinance assessing the owners of property abutting on Shiloh Road certain amounts as the estimated cost of paving improvements on Shiloh Road, in which ordinance the appellees were assessed $1,715 because of their ownership of this tract. These events, occurring five and six years after execution of the deeds relied upon by appellant, are quite inconsistent with appellant’s theory of implied dedication in the giving of the deeds.

Appellant relies on Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, wherein the Supreme Court held that the facts of that case justified a jury in finding that a dedication had been made. However, the facts in that case were quite different from those in the case before us, and we do not regard that opinion as controlling here. However, that opinion does set out quite concisely the rules pertaining to implied dedication of land to public use, including the following, at 251 S.W.2d 958:

“Our courts recognize the doctrine that a dedication of land to public use need not be shown by deed, nor by public use for any particular length of time. It is sufficient if the record shows unequivocal acts or declarations of the landowner, dedicating same to public use, and where others act on the faith of such dedication, the landowner will be estopped to deny the dedication, or to make any future use of the property inconsistent with any purpose for which the land was dedicated.” (Italics ours.)

However, there is no dedication by estoppel or implication unless there is a clear and unequivocal intention on the part of the landowner to dedicate the land to public use and an acceptance thereof by the public. Greenway Parks Home Owners Ass’n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 241, 316 S.W.2d 74. See also Hestand v. Johnson County, Tex.Civ.App., 206 S.W.2d 665, no wr. hist.

There is nothing in the record before us to show that appellees intended to dedicate this strip to the use of the public. Moreover, there is nothing in the record before us to indicate that either of the grantees in the two deeds or the officials of the appellant ever took the position (prior to the filing of appellant’s pleadings in this case) that such a dedication had been made or, if made, that appellant had in anywise accepted the same; there is no evidence that any part of the strip had ever been used for street purposes or for any other public use, or that any effort was made by appellant to put it in condition to be used as a street until the beginning of the construction work which prompted the filing of this suit. Appellant’s first point of error is overruled.

By its second and third points of error appellant says that there was no evidence, and insufficient evidence, to support the trial court’s award of $6,615.

Appellees’ two expert witnesses on values, Roy Eastus and Wayne Gratigny, opined that the strip in question, consisting of 14,700 square feet, had a market value of 75 cents per square foot, or a total of $11,025. The appellant’s witness, Charles Marr, testified that in his opinion the property had a market value of only $100.

Thus, both sides admitted the property did have some market value. The trial court heard the expert witnesses and found a value which was well within the range of their testimony. He was in much better position than are we to determine the fact issue thus presented. We might not have found the value of the strip of land in question to be as high as he did, but that was his prerogative, not ours. Our only duty in this connection is to ascertain whether the trial court’s determination of the matter is supported by evidence. We overrule appellant’s contention that there was no evidence, and after studying the entire statement of facts we cannot say that the evidence is insufficient, to support the finding or that the finding is so against the great weight and preponderance of the evidence as to be manifestly unfair or unjust. Accordingly, appellant’s second and third points of error on appeal are overruled. City of Lubbock v. Thiel, Tex.Civ.App., 352 S.W.2d 799, wr. ref. n. r. e.

By its fourth point of error appellant complains of the admission of the testimony of appellees’ expert witness, Roy Eastus, concerning sales of other properties in support of his opinion as to the value of the land involved in this case. After qualifying their witness Roy Eastus and eliciting from him his opinion as to the value of the land taken, appellees’ counsel asked him if this was based upon other sales in the immediate area, to which appellant’s counsel objected on the ground that any sales in the immediate area could not possibly be comparable because they were of property on which industrial plants could be located, whereas none could be located on a 30-by-490 foot strip. This general objection was overruled, and the witness then proceeded to testify as to several sales of industrial land in the general area. No further objections were made by appellant. We overrule appellant’s fourth point of error. The objection went to the weight of the testimony rather than to its admissibility. Hays v. State, Tex.Civ.App., 342 S.W.2d 167, wr. ref. n. r. e.

The judgment appealed from is

Affirmed.


author: SELLERS, Justice.

text:
    EMMCO INSURANCE COMPANY, Appellant, v. Bob WATERS, Appellee.
    No. 271.
    Court of Civil Appeals of Texas. Tyler.
    March 16, 1967.
    Rehearing Denied April 13, 1967.
    Spruiell, Lowry, Potter, Lasater & Guinn, John Minton, Tyler, for appellant.
    Ben E. Jarvis, Tyler, for appellee.
   SELLERS, Justice.

Bob Waters, appellee, brought this suit in the District Court of Smith County against Emmco Insurance Company, appellant, to recover on a policy of insurance covering a certain International truck which had been wrecked. The trial was to a jury and all issues submitted to the jury were answered in favor of appellee, Bob Waters. The trial court, upon the jury’s verdict, entered judgment for appellee in the sum of $2,150.00 with interest from date of judgment at six percent per annum. From this judgment, the appellant has duly prosecuted this appeal.

Appellant’s first points of error are to the effect that the trial court committed error in admitting the testimony of Carl E. Rogers as to the value of the International truck, both before and after the wreck, since-he was not qualified to give such evidence-Mr. Rogers testified that he had been in the International truck sales business for many years, having been in business here in Tyler for about twelve years immediately prior to the time of the trial. Prior to that time, he had owned dealerships in International trucks in Graham, Texas; Mt. Pleasant, Texas; and Kilgore, Texas; that he had never handled any other trucks but Internationals; that he made sales here in Tyler to people from many sections of the country, including Louisiana and as far away as Nevada; that he kept up with the price of International trucks, both new and second-hand, with information from the manufacturer of the trucks; that he sold the truck involved when it was new, then purchased it back and sold it as a second-hand truck to appellee; that he had occasion to see the truck just a few days before the accident; that the truck was worth on the market at the time it was wrecked in Hammond, Louisiana, the sum of $2200-$2500. He further testified that he had heard the testimony of the witness who described the condition of the truck after the wreck, and in his opinion, the truck was worth $150-.$200.

This witness was cross-examined at length .about his qualifications to testify as an expert on the value of this truck. This Court has carefully considered all of the evidence given by the witness and we are of the opinion that we cannot say that the Court abused its discretion in admitting his testimony. Volume 19, T.J., Sections 147, 148, and 149.

A case very similar to the one under consideration is Calvert Fire Ins. Co. v. McClintic, Tex.Civ.App., 267 S.W.2d 568, by the Waco Court (opinion by Chief Justice .McDonald) in which it is held:

“It is our view that the evidence amply supports the finding of the Trial Court that the value of the car before loss in McLennan County was $2,995. The witnesses mentioned testified as to their opinion of value in McLennan County and what they placed that value at. The question of qualification of a witness on the issue of value is largely within the discretion of the Trial Court, and his ruling will not be disturbed unless it is clearly wrong. Pacific Finance Corp. v. Gilkerson, Tex.Civ.App., 217 S.W.2d 440; Western Cotton Oil Co. v. Mayes, Tex. Civ.App., 245 S.W.2d 280; Foley Bros. Dry Goods Co. v. Settegast, Tex.Civ. App., 133 S.W.2d 228. Moreover, one can testify as to the value of his own car. Any layman who can testify that he knows the value of automobiles and can give satisfactory facts in support of the statement that he has such knowledge is ordinarily qualified to testify. Motor Finance Co. of Texas v. Allen, Tex.Civ. App., 252 S.W.2d 1022; Continental County Mutual Ins. Co. v. Ivy, Tex.Civ. App., 256 S.W.2d 640. See 19 Tex.Jur., Secs. 134, 146, 147, 148, 149.”

It is our opinion that the trial court did not err in admitting the evidence complained of.

Appellant’s policy of insurance on this truck contains the following exclusionary provision:

“In consideration of the premium at which this policy is issued, it is warranted by the insured that no regular or frequent trips of commercial vehicles described in such policy are or will be made during the policy period to any location beyond a 150 mile radius from the limits of the City or town of principal garaging of such vehicles.”

It is contended by appellant that appellee violated this clause by making trips beyond the 150-mile limit, and that the court erred in its definition of the word “regular” in its charge to the jury.

In connection with the issue as to whether the appellee made “regular” or “frequent” trips beyond the 150-mile limit, the jury answered that he did not. Without discussing the definition given by the court of the word “regular,” this court is of the opinion that appellant has failed to offer evidence that would show a violation of this provision of the insurance contract. The evidence shows that at the time the policy was issued, the truck was under lease to H. D. Laughlin and Sons of Forth Worth, Texas, and a copy of the lease was on file with the Railroad Commission of Texas; that while under this lease to H. D. Laughlin and Sons, this truck made seven trips to points beyond the 150-mile limit. All the other use of this truck was confined by appellee to his farming operations within the 150-mile limit except one trip by appellant to Houston, Texas, and return, to pick up machinery which he sold in Alabama, and he was on the way to Alabama when the truck was wrecked at Hammond, Louisiana, or near there. The policy was in effect for about nine months. At all other times, the truck was used by appellee in his farming business within the 150-mile limit of Whitehouse, Texas, the home of appellant.

It was the burden of appellant to prove that the truck was used on “regular” and “frequent” trips beyond the 150-mile limit and we are of the opinion that eight trips beyond the 150-mile limit in the nine months the policy was in effect was not sufficient as a matter of law to defeat ap-pellee’s right of recovery. Bandy v. East & West Ins. Co., Mo.App., 163 S.W.2d 350. This case is much stronger on the facts than the case under consideration, and the court upheld the right of the truck owner to recover.

There is another reason why we think the appellant has failed to establish its right to defeat the insurance under the above clause. This policy had another provision excluding recovery, as follows:

“This policy does not apply:
« * ⅛ *
“(b) under any of the coverages, if the automobile is or at any time becomes subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance not specifically declared and described in this policy; * * ”

In view of this provision, the appellant would not have been liable for the loss incurred, had the accident happened on either of the seven trips made by the truck while it was under lease to Laughlin and Sons, and in our opinion those trips should not be included in arriving at the question of whether appellee used his truck on “regular” and “frequent” trips beyond the 150-mile limit.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    J. H. BLAZEK, Appellant, v. Vesta Mary HAIZLIP et vir, Appellees.
    No. 16892.
    Court of Civil Appeals of Texas. Dallas.
    March 17, 1967.

      Russell Dunn, Sherman, for appellant.
    L. P. Bickel, of Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for ap-pellees.
   CLAUDE WILLIAMS, Justice.

This appeal is from a “take nothing” judgment based on a jury verdict in a suit brought by J. H. Blazek for personal injuries allegedly sustained by his wife, Mary Frances Blazek, growing out of an automobile collision which occurred on August 25, 1965 in the City of Sherman, Texas. Blazek alleged that his automobile had been negligently struck on the left side by an automobile driven by Mrs. Haizlip in the intersection of Houston Street and Highland Avenue in the City of Sherman and that as a result of such collision Mrs. Blazek had sustained personal injuries. Mrs. Haizlip and her husband responded to the suit by contending that the collision was a result of contributory negligence of Mr. Blazek or that the collision was the result of an unavoidable accident.

Responding to special issues submitted to them the jury found that (1) Mrs. Haizlip had failed to keep a proper lookout on the occasion in question and that (2) such failure was a proximate cause of the collision; (8) that Mrs. Haizlip did not fail to yield the right-of-way to Mr. Blazek’s automobile; (18) that Mr. Blazek failed to keep a proper lookout on the occasion in question and (19) such failure was a proximate cause of the collision; (20) that Mr. Blazek failed to yield the right-of-way to Mrs. Haizlip’s automobile and (21) such failure was negligence and (22) such negligence was a proximate cause of the collision; (22-A) that Mrs. Blazek did not sustain personal injuries as a result of the accident and (24 & 25) there were no doctor bills, medical bills and hospital bills incurred, or to be incurred, by Mr. Blazek as a result of the injuries sustained by his wife in the collision.

Appellant seeks reversal of the judgment rendered against him in five points of error. In his first four points he contends that the findings of the jury to the effect that Mrs. Haizlip did not fail to yield the right-of-way; that he, Mr. Blazek, failed to keep a proper lookout, which was a proximate cause of the collision; and that Mrs. Blazek did not sustain injuries or incur medical expenses, are so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. By his fifth point he charges that the trial court committed reversible error by requiring the jury to start their deliberations at a late hour in the day.

Before we reach any of appellant’s points an examination of the record reveals that the judgment must be affirmed. As stated above the jury, in answer to Special Issues 20, 21 and 22 found that appellant Blazek failed to yield the right-of-way to Mrs. Haizlip’s automobile and that such failure was negligence which was a proximate cause of the collision in question. Appellant has not attacked these findings in any manner. Since appellant was guilty of contributory negligence which was a proximate cause of the collision judgment must go against him. It necessarily follows that appellant’s attack upon the jury’s answers* to other issues becomes of no consequence to the ultimate disposition of this appeal. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334; Hunter v. Texas Electric Ry. Co., Civ.App., 194 S.W.2d 281, wr. ref., affirmed 332 U.S. 827, 68 S.Ct. 203, 92 L.Ed. 402; Le Compte v. Sanders, Tex.Civ.App., 378 S.W.2d 861.

We have, however, considered appellant’s points complaining of certain answers of the jury as being contrary to the great weight and preponderance of the evidence. Since these points present to us questions of fact, as opposed to questions of law, a correct resolution requires us to study such by weighing all of the evidence in the case, including the evidence which supports the verdict and also evidence which is contrary to it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Williams v. Berry, Tex.Civ.App., 389 S.W.2d 89.

Having examined the record in the light of this rule we find no merit to any of appellant’s points making this complaint. The evidence is conflicting upon the material issues submitted and the jury resolved these conflicts, as it had a right to do. We find nothing in this record which would support appellant’s contention that the jury was motivated by bias or prejudice against appellant and his wife. Appellant’s points 1 through 4 are overruled.

Appellant’s fifth point, complaining of the action of the trial court in requiring the jury to begin their deliberations at a late hour in the day is without merit and is overruled. Appellant has brought forward no bill of exceptions which reveals such complaint nor do we find anything in the record to support the charge made.

The judgment of the trial court is

Affirmed.


author: HENLEY, Judge.

text:
    STATE of Missouri, Appellant, v. Anderson PARKER, Respondent.
    Nos. 51972-51974.
    Supreme Court of Missouri, En Banc.
    April 10, 1967.

      Norman H. Anderson, Atty. Gen., James E. Darst, First Asst. Circuit Atty., St. Louis, John H. Denman, Asst. Atty. Gen., Jefferson City, for appellant.
    Bruce Nangle, St. Louis, for respondent.
   HENLEY, Judge.

The State appeals from judgments of the circuit court of the City of St. Louis entered January 20, 1966, setting aside judgments of conviction of respondent entered November 1, 1961, in three felony cases. The three appeals were consolidated for briefing, hearing and argument by order of this court; one opinion will decide the three. The respondent will be referred to as defendant.

By three indictments filed July 20, 1961, defendant was charged as follows: in case number 1074 — J, with robbery in the first degree of Harold Siefert on June 30, 1961, section 560.120 (all references to statutes are to RSMo 1959 and V.A.M.S.); in case number 1075 — J, with assault of Thomas Crowe with intent to kill with malice aforethought on the same day, June 30, 1961; in case number 1076 — J, with assault of Edward Harper with intent to kill with malice aforethought on the same day, section 559.180. The three men named above, Siefert, Crowe and Harper, were, on June 30, 1961, members of the St. Louis Metropolitan Police Department. Each indictment also charged that defendant had been convicted of four prior felonies and sentenced and imprisoned therefor. Section 556.280.

On November 1, 1961, the robbery case (No. 1074-J) came on for trial in Division Twelve before a jury and the Honorable Ivan Lee Holt, Jr., judge. Defendant was represented by experienced able counsel. At the end of a recess near the close of the day, after the state had obviously made a strong submissible case, defendant announced he would withdraw his plea of not guilty and enter a plea of guilty to this charge and the charges in cases numbered 1075 — J and 1076 — J. Evidence in the robbery case will be referred to later. The court accepted the pleas of guilty, sentencing defendant to imprisonment for thirty years in the robbery case and thirty years’ imprisonment in each of the assault cases, the sentences to run concurrently.

On October 20, 1964, while serving his sentences in the penitentiary, defendant filed the instant motion to set aside the judgments of conviction and permit him to withdraw his pleas of guilty. Criminal Rule 27.25 (all references to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.). The motion was heard on February 16, 1965, by the Honorable Alvin J. McFarland, judge. Defendant appeared in person and was represented by counsel of his own choice. Thereafter, on January 20, 1966, the court sustained the motion and set aside the judgments, from which orders the state has appealed. The evidence in support of the allegations of the motion, mostly by way of depositions, will be referred to later.

The trial court having set aside final judgments of conviction, the state is entitled to appeal, Criminal Rule 28.04(b) and §§ 547.200 and 547.210, and this court has jurisdiction, because convictions of felonies are involved. Article V, § 3, Constitution of Missouri, V.A.M.S., State v. Skaggs, Mo., 248 S.W.2d 635, 636[2],

The evidence in the robbery case supports a finding of the following facts. On June 30, 1961, the date of the robbery, Patrolman Harold Siefert, Sergeant Edward Harper and Detective Thomas Crowe were on duty with the Operative Deployment Section, better known as the Decoy Squad. That evening, at about nine o’clock, they and other members of the Squad were patroling an area of high crime incidence in the city, described as being between Franklin avenue on the south and Carr on the north, Sixth street on the east and Tenth on the west. Their method of patroling the area was for some of the officers to walk assigned streets in plain clothes equipped with miniature radio equipment by which they could communicate with each other and other members of the squad in nearby unmarked like-equipped police cars, commonly referred to as police cruisers. In addition to these officers the squad consisted of Detective Norman Klei-fisch, Detective John Housley and Patrolwoman Phoebe Blunk. The evening was still light enough at the time of the robbery and subsequent events to distinguish personal features, according to Patrolwoman Blunk.

The patrol began at Sixth street, on the east, with three officers starting at the same time from that point to walk west toward Tenth on separate avenues; Patrolman Siefert was walking the south side of Carr; Detective Housley was walking Cole, the next avenue south of Carr; Detective Kleifisch was walking Franklin, the next avenue south of Cole. Sergeant Harper, supervisor of the squad, followed in a police cruiser at some distance behind the walking officers. Detective Crowe and Patrolwoman Blunk were in a police cruiser moving west, ahead of the walking officers. The walking officers were required to maintain approximately the same pace, stop at each intersection to ascertain whether the others had reached that point on their avenues, and maintain radio contact with each other and the two cruisers.

When Siefert reached the corner of Ninth and Carr he discovered he was ahead of his partners walking Cole and Franklin; to kill time he walked across Ninth and stepped into a nearby outside telephone booth, pretending to look for a number in the directory. He was immediately attacked from behind by defendant and another negro man. He was struck on the head, knocked down, and, while fighting back, was pulled out of the booth, knocked down to the sidewalk, and viciously mauled, kicked and beaten to the point of bare consciousness. His clothes were torn to shreds as the two negroes were taking his wallet, wristwatch, service revolver and handcuffs. As the handcuffs were taken one of the men exclaimed “this guy is a cop,” and they broke and ran west on Carr toward a nearby alley where defendant and his partner separated, defendant heading south into the alley leading to Cole. During the affray Siefert managed to activate his transmitter and call for help. Police cruisers converged on the area, and as Siefert was getting in Sergeant Harper’s cruiser they saw defendant, in a yellow shirt, turn into the alley. They followed defendant through the alley to Cole, and east on Cole to Ninth where defendant turned north back towards Carr into the arms, so to speak, of Detective Crowe. A struggle ensued between defendant and Crowe during which the officer was shot in the knee and, as defendant was escaping, he was shot in the back by Crowe. As he escaped Crowe other officers took up the pursuit, during which several shots were exchanged between defendant and the pursuing officers. Defendant outdistanced the officers and ran into a nearby housing development, the Cochran apartments ; there he was captured and Siefert’s service revolver with three spent cartridges taken from him. Patrolwoman Blunk testified she was within fifteen feet of defendant and Detective Crowe during Crowe’s attempt to subdue and arrest defendant; she saw Crowe, shot, drop to the street; she positively identified defendant at the trial. Detective Harper testified that as he pursued defendant beyond Crowe defendant fired at him.

The substance of the allegations of defendant’s motion is that he is innocent of the three charges; that since his incarceration in the penitentiary he has received information that evidence exists which will prove his innocence, evidence withheld from him by the state in violation of his constitutional rights. The evidence to which he refers is stated briefly in an affidavit of his trial attorney, attached to the motion. The affidavit states, in substance, that prior to and at the time of the robbery trial and pleas of guilty counsel and defendant were led to believe that the bullet which struck Detective Crowe had been fired by defendant. The affidavit implies that the fact is that it had been determined by the state before trial that the bullet extracted from Crowe’s knee had not been fired by defendant, but had been fired by a police officer; that the state had this information before and during the trial, but withheld it from defendant and his counsel.

There is no need to relate in detail the testimony of all the fourteen witnesses called to the stand by defendant at the hearing on his motion; much of it was not particularly pertinent to the issues. No evidence was offered by the state. Those testifying included the judge who presided at the robbery trial; the attorneys representing the respective parties in that trial; the circuit attorney; all police officers of the Decoy Squad and other officers in any way involved in the occurrence of June 30, 1961, and their superior officers, including the Chief of Police; and officers and technicians of the police department laboratory who made ballistic tests of the bullet removed from Crowe’s knee, Officer Sie-fert’s revolver found in defendant’s possession at arrest, and all other police weapons fired during this general melee. This evidence showed conclusively that the bullet which struck Crowe while he was struggling with and trying to apprehend defendant was not fired by defendant from Siefert’s revolver, as had been first assumed, but was fired by Sergeant Harper from his revolver. This information was in the possession of the police department, and known to the commanding officer of the Decoy Squad and all of his superiors including the Chief of Police, not later than September before defendant pleaded guilty on November 1, to the charge of assault of Officer Crowe and the other two charges. It is not clear as to when this information was conveyed to the Circuit Attorney’s office and the state’s trial attorney, but it would be reasonable to conclude it was known by them before the pleas of guilty were entered It was not conveyed to the judge who ao cepted the pleas, or at least he had no recollection of having received this information.

James J. Rankin, trial counsel for defendant in the three cases, testified that he made no effort to determine whether ballistic tests had been made or what such tests would show; that no one informed him that ballistic tests had been made and the results, so he assumed the state would be able to prove in the Crowe assault case that defendant had fired the shot wounding Crowe; that he did not know information existed that defendant had not shot Crowe; that had he known the results of the tests, he would have questioned whether the state could make a case in either of the assault charges, and his advice to defendant “ * * * may have [been] * * * altered, * * * depending upon the prospective disposition * * * he thought * * * [he] could make of [the assault] cases, either by pleading him guilty or by trial * * * that the first knowledge he had that such tests had been made, and their results, came through newspaper articles in 1964. He further testified that the fact the state had made a very strong case on the robbery charge influenced him to advise defendant to plead guilty to that charge; that he had been negotiating for some time with the Circuit Attorney’s office for a satisfactory disposition of these cases on a plea of guilty and “ * * * wouldn’t have considered disposition of one case with the prospect of having to go to trial in either of the other two * * * that other factors influencing his advice to defendant to plead guilty to the three charges was the fact that he was charged with four prior felony convictions in each, and the fact that each was a very serious charge, and he (defendant) would not be “ * * * in a very good position [with four prior felony convictions] to face a jury unless he had a pretty good defense in any one or all of the cases.” He further testified that the sentences imposed were not in excess of what the defendant had agreed to take; that he was sure defendant knew what he was doing in pleading guilty to all three charges.

Daniel P. Reardon, Jr., the circuit attorney, testified that negotiations between defendant’s attorney and the state’s trial attorney for disposition of the cases by a plea of guilty had been continuous from “ * * * the very outset * * * that the state’s recommendation to the court had been a sentence of thirty-five years, prior to beginning trial of the robbery case; that he received information during the morning of the second day of the robbery trial that the bullet which struck Crowe was from Sergeant Harper’s weapon; that he immediately informed the judge of this fact and offered to reduce the state’s recommendation to twenty-five years should the defendant plead guilty; that Judge Holt would not agree to twenty-five year sentences, but said he would sentence defendant to thirty years on pleas of guilty; that it was agreed between the state and defense counsel that upon defendant’s plea of guilty the court would impose a sentence of thirty years in each of the three cases with the sentences to run concurrently.

Appellant contends that the court erred in sustaining defendant’s motion to withdraw his plea of guilty to the charge of robbery and to the charge of assault on Sergeant Harper, because the only reason stated for withdrawing the pleas has no application to these two charges; that the motion does not allege facts which, if true, would affect the judgments in these two cases; and, that the evidence does not show that injustice would result in these cases if the pleas were not permitted to be withdrawn. Appellant also contends that the court erred in sustaining the motion as to the charge of assault on Detective Crowe, because there has been no showing injustice has resulted from the state’s failure to inform defendant that it was Harper’s bullet, not defendant’s, which struck Crowe; that defendant is, in fact, guilty of an assault on Crowe, as charged, because the evidence shows defendant shot at Crowe, and it makes no difference that it was not defendant’s bullet which struck the officer.

Respondent contends that whether or not judgments of conviction should be set aside, after sentence, to correct manifest injustice is within the sound discretion of the trial court; that injustice appears from the fact that the state withheld from defendant and his counsel information in its possession that defendant was not guilty of assault with intent to kill officer Crowe by shooting; that this proof supports the action of the court in setting aside his conviction of assault on Crowe; therefore, the court did not abuse its discretion. He also contends that the judgments on pleas of guilty in the other cases are so closely related to and infected by the same cause they also were properly set aside.

By the provisions of Criminal Rule 27.25 the withdrawal of a plea of guilty is permissible after sentence, when, in the discretion of the trial judge, such withdrawal is necessary to correct manifest injustice; and the action of the judge on a motion to withdraw a guilty plea will not be overthrown, except for an abuse of judicial discretion. State v. Skaggs, Mo., 248 S.W.2d 635, 636[1, 2]; State v. Reynolds, 355 Mo. 1013, 199 S.W.2d 399, 402[1]. Most of the authorities cited by the parties, and those we find by independent research, present cases wherein the defendant has appealed claiming an abuse of judicial discretion in refusing to permit him to withdraw his plea of guilty. Here we are presented with the reverse of the situation usually found, but those authorities, and the well-defined guidelines they have established, are, nevertheless, applicable to the facts presented in this case.

A plea of guilty in open court is a solemn confession of guilt, but, like a confession out of court, should be received with caution. The plea should not be accepted by the court unless it is voluntarily and understandingly made. “If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea. The law favors a trial on its merits.” State v. Reynolds, 355 Mo. 1013, 199 S.W.2d 399, 402-403 [1-7], and cases there cited; State v. Kellar, 332 Mo. 62, 55 S.W.2d 969, 972 [3-5]. A defendant is not entitled as a matter of right to withdraw his plea after sentence; whether he may do so rests within the sound discretion of the court. State v. Reynolds, supra; United States v. Denniston, 89 F.2d 696, 698[5],

A motion which has for its purpose the withdrawal of a plea of guilty after sentence must allege facts, not conclusions, showing that the plea was not voluntarily and understandingly made, and should state how, wherein and by what fraud, mistake, misapprehension, fear, persuasion, or false or ill-founded hopes held out to him he was misled or induced to plead guilty. State v. Kellar, 332 Mo. 62, 55 S.W.2d 969, 972. The movant should at the very least allege that he is innocent and has a meritorious defense to the offense charged. Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247, 251 [5]; United States v. Denniston, 2 Cir., 89 F.2d 696, 698[6], 110 A.L.R. 1296. And he has the burden of proving the facts alleged. State v. Kellar, supra; State v. Cochran, 332 Mo. 742, 60 S.W.2d 1; State v. Reynolds, supra; United States v. Shneer, 3 Cir., 194 F.2d 598, 600[2]; Watts v. United States, supra, 278 F.2d 1. c. 251 [5].

The procedure provided by our Criminal Rule 27.25 is appropriate only in extraordinary cases ; after sentence, it is available only “to correct manifest injustice.”

We consider first whether the allegations of defendant’s motion meet these requirements and whether the evidence adduced at the hearing warrants any relief under Criminal Rule 27.25 in the robbery case (No. 1074-J) and the Harper assault case (No. 1076-J). The motion alleges the bare conclusion that he is innocent of all three charges. The only factual allegations in his motion, and its supporting affidavit, which may be said to state grounds for impeaching a judgment relate solely to the Crowe assault case (No. 1075-J), not to the robbery and Harper assault cases. Nor does the evidence support the trial court’s order setting aside the latter judgments; the evidence relates solely to the alleged grounds for setting aside the judgment in the Crowe assault case. There is no pleading or proof that defendant has a meritorious defense in the robbery and Harper assault cases, nor pleading or proof that his pleas of guilty in those two cases were not voluntarily and understandingly entered.

The evidence is that defendant shot at Sergeant Harper during a running gun battle after the robbery of Patrolman Siefert; the evidence is that defendant robbed Siefert, taking his gun and putting it to the latter’s head during that affray. This evidence would support verdicts of guilty on each of those charges. Defendant does not deny these facts or claim that he has a defense in either of these cases. Instead, he makes the technical and rather vague contention that these two pleas and judgments are somehow tainted with the alleged injustice resulting from the judgment in the Crowe case. We find no merit in this contention. Although the pleas in the three cases were entered on the same occasion they represented separate charges each resting on its own bottom.

Defendant had the advantage of hearing practically all of the state’s evidence pertaining to the charges of robbery and assaults; he had experienced counsel, who, after hearing this evidence, advised him to plead guilty and accept the concurrent sentences counsel no doubt had reason to believe the court would impose; he entered pleas of guilty, after extended negotiations between his counsel and counsel for the state to reach agreement on the punishment to be recommended should he plead guilty, and after the state had reduced its first recommendation. There is no doubt that his pleas of guilty to the robbery charge and to the charge of assault on Sergeant Harper were voluntarily made. There is no doubt that these pleas were entered with a full understanding of the meaning of each charge, and what acts amount to being guilty of each charge, and the consequences of pleading guilty thereto. His claim of “manifest injustice” is utterly incompatible with the record.

If the evidence were conflicting as to whether these two pleas of guilty were voluntarily and understandingly entered, we should observe the deference due the trial judge who heard the evidence, but that is not the case; the evidence, or the lack of it, all points one way, inexorably toward the opposite result. We conclude, under the circumstances, that the trial court abused its discretion in setting aside the judgments to permit defendant to withdraw his pleas of guilty and enter pleas of not guilty in cases numbered 1074-J and 1076-J.

We next consider the Crowe assault case. The state contends that defendant is guilty of this charge of assault with intent to kill with malice although his bullet did not strike Detective Crowe; that he is guilty of this charge, because defendant shot at Crowe. Therefore, the state argues, it makes no difference that defendant was not informed his bullet had not struck Crowe; that under these circumstances injustice could not result from refusing to permit defendant to withdraw his plea of guilty to this charge. One difficulty with this contention is that the record does not support the state’s assertion defendant shot at Crowe. The record is not clear as to all that happened during and immediately after defendant escaped from Crowe’s attempt to apprehend him, but there is no positive testimony defendant shot at Crowe. There is testimony he shot at Harper and another officer, but none that he shot at Crowe.

We are inclined to the view, and hold, that under these facts the court did not abuse its discretion in setting aside this judgment and in permitting defendant to withdraw his plea of guilty to permit a plea of not guilty in the Crowe assault case (No. 107S-J).

The orders sustaining defendant’s motion and the judgments setting aside the judgments of conviction in cases numbered 1074 — J and 1076-J of the circuit court of the City of St. Louis are reversed. The order sustaining defendant’s motion and the judgment setting aside the judgment of conviction in case number 107S-J is affirmed.

All concur.

      . The rule is the same as Rule 32(d), Federal Rules of Criminal Procedure, 18 U.S.C. See United States v. Semel, 4 Cir., 347 F.2d 228, 229 [1].


text:
    Alva STAFFORD, Appellant, v. Elizabeth LYON, Administratrix of the Estate of Fred L. Lyon, Deceased, and Kloomars Dayanl, Respondents.
    No. 51901.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.

      Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Waren S. Stafford, Springfield, for appellant.
    Farrington & Curtis, E. C. Curtis, Springfield, for respondents.
   RUSSELL H. DOERNER, Special Commissioner.

Plaintiff sought damages of $100,000 from defendants Lyon and Dayani for personal injuries alleged to have been sustained in a four-car, chain-type collision. Lyon cross-claimed against Dayani for damages to his car in the sum of $500, and upon his death, prior to trial, Elizabeth Lyon, the Administratrix of his estate, was substituted both as defendant and as cross-claimant. At the beginning of the trial the plaintiff dismissed as to Dayani, who did not appear in person or by counsel. Trial to a jury resulted in a verdict and judgment in favor of defendant Lyon on plaintiff’s claim, and in favor of Lyon and against defednant Dayani for $210 on her cross-claim, from which plaintiff alone has appealed. We have jurisdiction because of the amount in dispute.

The nature of the points raised obviates an extensive statement of the facts. The collision occurred on December 26, 1959, at an intersection at the 900 block on South Glenstone Avenue in Springfield, Missouri. All of the four cars involved were being operated in a northwardly direction, in the following order: Plaintiff, in a 1959 Volkswagen panel automobile; Lyon, in a 1952 Dodge; Dayani, in a 1954 Chevrolet; and one Everett Justis, in a 1959 Buick. It is undisputed that plaintiff, traveling in the center or inside lane preparatory to making a left turn, brought his car to a stop about a half a car length to the rear of a waiting automobile. It is also undisputed that the front of Lyon’s Dodge came in contact with the rear of plaintiff’s vehicle, that the front of Dayani’s Chevrolet struck the rear of Lyon’s Dodge, and that the front of Justis’ Buick hit the rear end of Dayani’s car. The main issue in the case was the sequence in which such contacts occurred. It was plaintiff’s contention and his case was submitted on the theory that Lyon’s Dodge struck plaintiff’s automobile, and then in turn was hit by Dayani’s Chevrolet. Lyon’s position and defense was that his vehicle had come to a stop to the rear of plaintiff’s, and was knocked against plaintiff’s automobile by the force of Dayani’s car striking it. It is undisputed that the last impact occurred when Justis’ car struck Dayani’s.

On direct examination both Nolan Cross and Everett Justis, who appeared as witnesses on behalf of defendant Lyon, testified that Lyon’s car had come to a stop and was struck from the rear by Dayani’s Chevrolet, which knocked Lyon’s Dodge against the rear of plaintiff’s automobile. On cross-examination both witnesses were impeached by plaintiff by the use of written, signed statements made in July, 1960, introduced by defendant, in which they stated, in substance, that they could not say with certainty that Dayani’s Chevrolet hit Lyon’s Dodge before Lyon’s car struck plaintiff’s; and Justis stated that his inconsistent statement was true. On redirect examination, over plaintiff’s objections, the court permitted Lyon’s counsel to introduce and read to the jury written, signed statements made by Cross and Justis in January, 1960, which were consistent with their testimony on direct examination as to the sequence of the impacts.

Plaintiff urges that the court erred in admitting the prior consistent statements in their entirety because that of Cross contained his conclusion that the accident was not the fault of Lyon; and because that of Justis included a statement that the police had given Dayani a ticket, which was not pertinent to the matter on which Justis had been impeached, and was prejudicial. Had plaintiff voiced specific objections to the admission of such portions of the statements the error, if any, in the overruling of his objections would not have been preserved for appellate review, for his contention was not presented to the trial court in his motion for a new trial. Civil Rule 83.13(a), V.A.M.R.; Dudeck v. Ellis, Mo., 399 S.W.2d 80. But the fact is that no specific objections to the admission of such portions were made, and the only objections voiced by plaintiff were general objections to the admission of the entire statements. An objection to the admission of evidence must be timely and specific, and contain the proper ground for exclusion, else the trial court will not be convicted of error in overruling it. Appelhans v. Goldman, Mo., 349 S.W.2d 204.

Plaintiff next asserts that such consistent statements were inadmissible because both Cross and Justis had admitted making the inconsistent statements offered in evidence by plaintiff. He contends that it is the rule in this state that if a witness admits having made the contradictory statement he has impeached himself and his prior consistent statement may not then be introduced for the purpose of rehabilitation, citing Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659. As this court pointed out in McElhattan v. St. Louis Public Service Co., Mo., 309 S.W.2d 591, 595, the ruling of the St. Louis Court of Appeals in the Williams case, “ * * * was based on dictum in the opinion by Cooley, J., in Stewart v. People, 23 Mich. 63, at pages 74-75. * * * ” The Williams case was transferred here, but we held that the objection made at the trial had not raised the issue of the admissibility of the prior consistent statement attemped to be presented on appeal, and stated that, “ * * We express no opinion on the issue sought to be presented * * * ” 363 Mo. 625, 636, 253 S.W.2d 97, 104. But as plaintiff appears to recognize in his brief, the Williams case was distinguished and the applicability of the rule therein announced narrowly restricted in Huston v. Hanson, Mo., 353 S.W.2d 577. There it was pointed out that the witness in the Williams case had admitted making the inconsistent statement deliberately and falsely, for her own purpose, and that no other statement could change that fact or remove such self-impeachment. So restricted, the opinion of the appellate court does not support plaintiff’s position in the instant case.

Our rule as to rehabilitation, as was noted in Huston v. Hanson, supra, has long been more liberal than that of many states. That rule, discussed at length in McElhattan v. St. Louis Public Service Co., Mo., 309 S.W.2d 591, is that when a witness has been impeached by proof of his statements inconsistent with his trial testimony, prior consistent statements are admissible into evidence for the purpose of rehabilitation. Thus if a witness on cross-examination admits he made the inconsistent statement, as is true in the present case, proof of the making thereof is, of course, supplied by the witness’ own testimony and his prior consistent statement is admissible in rehabilitation. Piehler v. Kansas City Public Service Co., 360 Mo. 12, 226 S.W.2d 681; State v. Emma, 324 Mo. 1216, 26 S.W.2d 781. It follows that the trial court ruled correctly on plaintiff’s objections to the admissibility of the prior consistent statements of Lyon’s witnesses. Huston v. Hanson, supra; Paige v. Missouri Pac. R. R. Co., Mo., 323 S.W.2d 753; McElhattan v. St. Louis Public Service Co., supra.

Plaintiff’s final assignment is that in the cross-examination of Dr. McAlhany, a neurological surgeon who removed a ruptured disc from between plaintiff’s fifth and sixth vertebrae, defendant Lyon should not have been permitted to propound a hypothetical question in which facts were assumed that were not in evidence. Plaintiff urges that it is improper to hypothesize facts to an expert witness which are unsupported by evidence in the case. That may be true when a hypothetical question is propounded by plaintiff to his expert witness for the purpose of eliciting an opinion necessary to establish the causal connection between an event and a claimed result, as in Sneed v. Goldsmith, Mo.App., 343 S.W.2d 345 and Bunch v. Wagner, Mo.App., 275 S.W.2d 753, cited by plaintiff. It may likewise be true when the hypothetical question propounded on cross-examination assumes a fact directly contrary to the fact in evidence, as in Stipp v. Tsutomi Karasawa, Mo., 318 S.W.2d 172, also cited by plaintiff. But the law is well-settled that the extent and scope of cross-examina-

tion in a civil action is discretionary with the trial court and its rulings in regard thereto will not be disturbed unless an abuse of discretion is clearly shown. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802; Fisher v. Gunn, Mo., 270 S.W.2d 869; Lonnecker v. Borris, Mo., 245 S.W.2d 53. This is particularly true in the cross-examination of an expert witness, in which case a wide latitude is allowed to test his qualifications, credibility, skill or knowledge and the value and accuracy of his opinion. Parker v. Ford Motor Co., Mo., 296 S.W.2d 35; Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78. And for such purposes an expert witness may be cross-examined, and his opinion obtained, based upon other states of facts, assumed by the party examining him to have been proven upon a hypothetical case, and he may be cross-examined on purely imaginary and abstract questions. State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W.943; Crews v. Bogy, Mo.App., 285 S.W. 549; Sparks v. Harvey, Mo.App., 214 S.W. 249; Conway v. Metropolitan Street Ry. Co., 161 Mo.App. 81, 142 S.W. 1101; 3 Jones, Commentaries on Evidence, 2nd Ed., § 1342, p. 2453; Lawson’s Expert and Opinion Evidence, 2nd Ed., p. 274; 2 Wigmore on Evidence, 3rd Ed., § 684, p. 811; 58 Am.Jur., Witnesses, § 855, p. 484; 32 C.J.S. Evidence § 560(1) (b), p. 559. As the court indicated by its comment, it is apparent from the preceding questions as well as the one objected to that in this phase of the cross-examination the defendant was testing the knowledge of plaintiff’s medical witness regarding the cause and manner of occurrence of ruptured discs, and the value and accuracy of his opinion regarding the plaintiff’s injury. As established by the foregoing authorities, the question propounded was within the wide latitude allowed on cross-examination for such purposes, and the court by its ruling did not abuse its discretion. Eickmann v. St. Louis Public Service Co., supra; Sparks v. Harvey, supra.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by RUSSELL H. DOERNER, Special Commissioner, is adopted as the opinion by the Court.

All of the Judges concur.