text:
    P. T. WHITLOCK GAS & OIL, INC., et al., Appellants, v. Roland V. BROOKS et al., Appellees.
    No. 16603.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 5, 1965.
    Rehearing Denied Dec. 3, 1965.

      Jackson, Walker, Winstead, Cantwell & Miller, Louis P. Bickel and Jack D. Sides, Jr., Dallas, for appellants.
    Lyne, Blanchette, Smith & Shelton, George C. Dunlap and Searcy M. Ferguson, Jr., Dallas, for appellees.
   BATEMAN, Justice.

The appellee Roland V. Brooks recovered a judgment for $15,000 as damages for personal injuries to his wife, Naomi, resulting from a collision between an automobile driven by her and a truck owned by P. T. Whitlock Gas & Oil, Inc. and driven by John W. Fitzgerald. The judgment was against the Whitlock company and its driver, Fitzgerald, both of whom appeal.

By their first point of error on appeal they assert that the jury was an improperly constituted tribunal in that one of its members, Samuel A. Davis, was guilty of misconduct during the voir dire examination of the jury panel. It is contended that Davis concealed a personal injury claim he had previously had, and that if he had not done so appellants’ counsel would have challenged him peremptorily. Rule 232, Vernon’s Texas Rules of Civil Procedure.

On the voir dire examination counsel for appellants first asked the general question of the entire panel, whether any of them had had “a damage suit or a suit against another person, firm or corporation, which arose out of an automobile accident.” A member of the panel (not Davis) spoke of having been sued “in an automobile accident,” and the attorney asked him if he had had such a claim of his own, whether a lawsuit was involved or not. This was answered in the negative, and the attorney then asked this question:

“All right. This question — it isn’t very well stated here — I want to find out from the members of the panel, and I will take it a row at a time, I believe we can do it a little bit faster, if any of them have had a claim against any other person, firm or corporation, such as this, or maybe an insurance company if it was an on the job accident, something like that, on account of being hurt whether it be on the job, on a train, a bus, or slip and fall in a store, or in an automobile accident, whether you had a claim, be there a lawyer employed, or not, or has a member of your immediate family had a claim, that is your husband, your wife, your children, your mother or father, or close friend, such as this. Mr. Mitchell has told us he was sued. I am actually inquiring on the other side of the proposition; anyone bring a claim, including a suit? Is there anyone in the front row including — ”

It will be noted that no inquiry was made as to whether any member of the panel had been injured, but only as to whether he had had a claim. The juror Davis was in the first row and could hear the attorney. He said nothing and did not raise his hand. On the hearing of appellants’ motion for new trial he testified that on April 17, 1964 he gave Liberty Mutual Insurance Company a release in connection with a back injury he received on June 3, 1963 while working for the Coca Cola Company; that he was treated for an injury but later “they” decided it wasn’t an injury but a congenital defect; that he never made a claim for any money, but the personnel manager and a representative of Liberty Mutual Insurance Company came to him and offered him $2,500 which he accepted and for which he gave the release. He stated that he did not remember the exact question asked by appellants’ attorney, but understood that he was asking whether he (Davis) had ever been involved in a lawsuit “or charged with a felony.” He also said that he believed in his own mind that he had never made a “claim” against anyone. He said he had never asserted a claim, or filed a lawsuit or hired a lawyer. He said that if he had been asked concerning his injuries he would have tried to answer the questions as truthfully as he knew how. He further said that he did not discuss his back condition or pain with the other jurors until after the verdict had been returned.

The trial judge heard Davis’ testimony, and even interrogated him at some length himself, and then by overruling the motion for new trial impliedly found that the alleged misconduct did not occur. If the evidence thereon be viewed as conflicting, the finding of the trial judge is final and binding on us. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. But, as we read this record, there is no substantial conflict in the evidence. No direct or specific questions were asked this prospective juror individually regarding his past claim experience, and it is obvious that he had no clear understanding of the general question as applying to anything other than a positive demand for monetary compensation for an injury. He had made no such demand and therefore, in his own mind at least, had not had a “claim” against anyone. We think the trial court was entirely justified in believing from the evidence that Davis did not understand the question as meaning what counsel for appellants doubtless understood it to mean. That being true, no misconduct was shown. Thompson v. Quarles, Tex.Civ.App., 297 S.W.2d 321, 325, wr. ref. n. r. e.; McCarthy Oil & Gas Corp. v. Cunningham, Tex.Civ.App., 255 S.W.2d 368, wr. ref. n. r. e.; Barron v. State, Tex.Civ.App., 378 S.W.2d 144, no wr. hist.

Moreover, it was shown that when all of the jurors wrote on separate pieces of paper the amounts they thought should be awarded for Mrs. Brooks’ injuries Davis wrote “$5,000,” being among the four who wrote the lowest amounts, and thereafter agreed on $15,000 as a compromise. This indicates to us that if any misconduct did occur in this respect appellants have not shown themselves to have been harmed by it. Rule 434, T.R.C.P.

Appellants’ first point is overruled.

By their second point of error the appellants complain of the refusal of the trial court to submit three requested special issues inquiring as to whether Mrs. Brooks “suddenly and unexpectedly slowed the speed of her vehicle,” and, if so, whether this was negligence and a proximate cause of the collision.

The court submitted issues as to whether Mrs. Brooks brought the automobile which she was driving to a sudden stop and, if so, whether this was negligence and a proximate cause. The jury answered the first of these issues in the negative, and appel-lees maintain that this was the only issue of contributory negligence raised by the evidence. We agree with appellees.

The evidence shows that prior to the collision both vehicles were traveling north on Stemmons Expressway in the City of Dallas, Mrs. Brooks’ car being in front of the truck, and that shortly after they entered upon the “exit road” leading into Commerce Street the truck collided with the automobile at or near its read end. Mrs. Brooks testified that as she approached the exit road she slowed down from approximately 35 miles per hour to around 20 or 25 miles per hour; that as she went down the exit road she had “made the curve and straightened up completely” when the truck hit them the first time, and that the truck hit them a second time.

The appellant Fitzgerald testified that he was driving a gasoline truck and was in the same lane and some 25 to 35 feet behind Mrs. Brooks as they approached the Commerce Street exit; that Mrs. Brooks couldn’t make up her mind whether she wanted to make a right turn or go straight ahead and suddenly turned right at the Commerce Street exit and stopped, after which he “jumped the curb” with his tractor and his trailer “slid into her”; that he could see she was stopped before the collision, although her tail lights were not on; that when he noticed she had stopped he was about 35 feet behind her; that she was slowing up and then he was slowing up, “and all at once she pulled in there and stopped right at the exit.”

Mrs. Brooks’ daughter, Rosilind, 17, was a passenger in her mother’s car and testified that before her mother turned into the exit she was going “about 30 miles an hour, maybe 35,” and that she slowed down to about 20 miles an hour when she turned into the exit road, and was going between 15 and 20 miles an hour when she was hit.

Appellant Fitzgerald was recalled and testified: “Well, we started about the same time, I guess, or something like that, and when she made her turn, then she stopped right there in front of me, and I jumped the curb with my cab, and I pulled my trailer brakes down and my trailer slid around into her.” He then testified on cross-examination:

“Q. Mr. Fitzgerald, you just testified when Mr. Bickel asked you a question, he said she was either stopped or slowed, isn’t that the question he asked you?
“A. She stopped.
“Q. She stopped. That is your testimony now?
“A. Yes, sir, she stopped.”

As we read this testimony, it presents two conflicting versions of what Mrs. Brooks’ car was doing at and immediately prior to the collision. The testimony of appellees’ witnesses would indicate that it was being gradually slowed down from 30 or 35 miles per hour to 15 or 20 miles per hour as she made the turn into the exit road and that it was moving when hit by the truck. Appellants’ evidence, however, indicated that it had been brought to a sudden stop prior to the collision. We find no evidence in the record, and our attention has been directed to none, to the effect that there was a sudden and unexpected slowing down of Mrs. Brooks’ car. Appellants’ version, that Mrs. Brooks brought her automobile to a sudden stop in the path of the following gasoline truck, was submitted to the jury and answered adversely to appellants. We are of the opinion that the requested special issues were not raised by the evidence and were properly refused. Appellants’ second point is overruled.

By their third point of error the appellants complain that no special issue was submitted to the jury as to whether Mrs. Brooks sustained bodily injuries in the collision, and that the absence of this essential issue was called to the trial court’s attention by appellants in their objections to the charge.

Of course, proof of such injury was essential to that part of appellees’ case. The burden was on Brooks to prove that his wife had been injured, and this question was put in issue by appellants’ general denial. Rule 92, T.R.C.P.; Texas & Pacific Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528.

It was also held in the Van Zandt case that, when there is a controverted issue of fact as to whether the plaintiff has been injured, it is not a sufficient submission of that ultimate and essential fact issue, over proper objection, to inquire whether a particular negligent act or omission was a proximate cause of the plaintiff’s injuries, if any, or what amount of money will compensate the plaintiff for the injuries, if any, sustained by him; that in such cases the issue should be submitted directly and unequivocally inquiring as to whether injury was sustained; that to hold otherwise would be to deny the defendant the right of trial by jury guaranteed by Section 15 of Art. I of the Texas Constitution, Vernon’s Ann.St. and that the mere denial of the right raises an inference of probable harm. In the light of these rules, we now examine the testimony in this case concerning Mrs. Brooks’ alleged injuries to determine whether there was error in not submitting the issue.

There was an abundance of testimony to the effect that Mrs. Brooks was injured, although all of it was testimony which the jury would have had a right to believe or not believe. The testimony of Mrs. Brooks and her husband as to her injuries was that of interested parties and merely raised the issue. The testimony of their married daughter, Mrs. Peterson, and two of the minor passengers in the car as to what they observed as to her physical condition was obviously based entirely on subjective symptoms, i. e., what Mrs. Brooks said and did to indicate pain and disability, and would likewise only serve to raise and support the issue, not determine it.

The only medical testimony offered was that of Dr. P. M. DeCharles, who testified that in his opinion Mrs. Brooks’ trouble with her back was due to an old degenerative disk syndrome and not caused by the accident in question, but that in his opinion her neck injuries were due to the accident. However, he further stated that he did not see any x-ray pictures of her taken immediately after the collision or any x-ray pictures taken prior to the collision and that he had seen similar neck injuries which were not caused by accident. All of the doctor’s testimony was of course opinion evidence of an expert, which the jury had every right to believe but was not compelled to believe.

Mrs. Brooks testified that after the collision Mr. Fitzgerald walked over to her and asked if anybody was hurt, and she told him that she “had no idea.” Mr. Fitzgerald testified that when he asked her if anybody was hurt she told him she didn’t think anybody was hurt bad, that they were all “scared”. She later told the investigating police officer that she intended to drive back to her home in Longview, Texas that same afternoon, but testified that after reaching Terrell, Texas some time after dark she decided to stay overnight, principally because of the fact that the tail lights on her automobile were not working. Mr. Brooks testified that she told him on the telephone that night that they were “bruised pretty bad” but that she believed she would be all right, that she was feeling pretty bad but wasn’t “critical” and would be in the next day. Mrs. Brooks did not consult a physician concerning her alleged injuries until a week or a week and a half after the accident. She went to see Dr. Spaulding, her family physician, but only went to see him one time, after which she went to a chiropractor seven or eight times. She first called on Dr. DeCharles approximately five months after the collision.

As pointed out in the Van Zandt case, it is not always necessary to submit the issue as to whether the plaintiff was in fact injured as a result of the accident in question, for in some cases the evidence is undisputed. However, our study of the evidence in this case persuades us that the trial court erred in not submitting such an issue, and that appellants were thereby denied their constitutional right to a trial by jury of an essential element of appellees’ case. Appellants’ third point is sustained.

In their fourth and last point of error appellants charge jury misconduct and endeavor to demonstrate that in arriving at their finding of $15,000 damages for Mrs. Brooks’ bodily injuries there was discussion of and inclusion in their answer six improper elements, to-wit: (1) attorney’s fees, (2) automobile damage, (3) past and future doctor and medical expenses, (4) professional testifying fee of a medical witness, (5) income taxes and (6) liability insurance.

The juror Marinan Graham, produced by appellants, testified that all these matters were discussed and several of them taken into consideration in arriving at the sum awarded. She said that she took attorney’s fees and automobile repair expenses into consideration and that other members of the jury stated that they were also taking them into consideration; 'that automobile damages were discussed by the jury and included in the amount awarded. She also said that an extra amount was included in the award because of the opinion of the jury that income taxes would have to be paid out of the amount awarded; also that past and future medical and doctors’ expenses were discussed and included in the award, as well as the fee of Dr. DeCharles for testifying at the trial. She said that another juror, Mrs. Morris, brought up liability insurance and that it was “discussed pro and con.”

The appellees then produced the testimony of the foreman, Frank T. Hearst, and jurors S. T. Bridges, Sam A. Davis and John E. Riker; and without unduly lengthening this opinion by detailing their testimony, let it suffice for us to say that the effect of it was to deny categorically Miss Graham’s testimony. The foreman testified that each time any of these foreign matters came up he stopped the discussion and admonished the other jurors that those were not matters to be discussed or considered by them, but that they were to be governed by the court’s instructions contained in the charge. The trial court had a right to believe this testimony and, so believing, to conclude that no misconduct occurred requiring a reversal. Walker v. Thompson, Tex.Civ.App., 287 S.W.2d 556, wr. ref. n. r. e.; St. Paul-Mercury Indemnity Co. v. Bearfield, Tex.Civ.App., 296 S.W.2d 956, wr. ref. n. r. e.

In a situation like this, the general rule is that a conflict in testimony is to be resolved by the trier of the facts; in other words, it was for the trial judge to weigh the conflicting testimony and determine whether or not there was any jury misconduct. He heard the jurors testify and was in much better position to resolve the conflicts than are we. Under these circumstances the decision of the trial court that jury misconduct did not occur is final and binding on us. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, and Brawley v. Bowen, Tex.Sup.1965, 387 S.W.2d 383. Appellants’ fourth point is overruled.

Because of the error of the trial court in refusing to submit to the jury a special issue inquiring as to whether Mrs. Brooks sustained bodily injuries, we reverse the judgment appealed from and remand it for another trial.

Reversed and remanded.

      . Brooks also sued as next friend of four minors who were passengers in the Brooks car. The jury found that none of these children was entitled to any damages; it was ordered that they take nothing; and they do not appeal. Hence, they will not he noticed further.

      . The point of error does not actually specify the substance of any of the requested issues, but merely refers to them as “controverted ultimate fact issues,” and is therefore too general to comply with Rule 418, T.R.O.P. However, a reading of the statement and argument under the point discloses to us the specific error complained of, and we therefore consider the point. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Rule 422, T.R.C.P.


source: Caselaw Access Project

author: CALVERT, Chief Justice.

license: Public Domain

text:
    W. Henry ADAMS, Petitioner, v. Robert S. CALVERT et al., Respondents.
    No. A-10777.
    Supreme Court of Texas.
    Dec. 8, 1965.

      Skelton, Bowmer, Courtney & Burleson, Temple, for petitioner.
    Waggoner Carr, Atty. Gen., Gordon Cass, Asst. Atty. Gen., for respondents.
   CALVERT, Chief Justice.

Suit was brought by petitioner, W. Henry Adams, against respondents, Robert S. Calvert, Comptroller of Public Accounts, Wag-goner Carr, Attorney General, and Jesse James, Treasurer, as officials of the State of Texas to recover the sum of $1,342.50 which he had paid to the State, under protest, as coin-operated machine taxes pursuant to the provisions of Article 13.02, Title 122A, Vernon’s Texas Civil Statutes. Upon stipulated facts, the trial court rendered judgment that petitioner recover the taxes with accrued pro rata interest. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that petitioner take nothing. 388 S.W.2d 742. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The stipulated facts are these: On September 6, 1950, the then Governor of the State of Texas, acting in the name and on behalf of the State, executed and delivered a deed of cession to the United States of America ceding exclusive jurisdiction over lands acquired by the United States in 1942 and 1943 and included in the military reservation known as Fort Hood. The instrument reserved to the State, and reserved only, concurrent jurisdiction over the lands for the purpose of executing civil and criminal process. Exclusive jurisdiction over the lands was accepted by The Department of the Army. In 1955, proper military authorities entered into a contract with the petitioner by the terms of which contract petitioner was granted a concession to operate a number of coin-operated amusement machines, which he owned, at designated places on the Post in consideration of 50% of the gross receipts from said machines. Since that date petitioner has operated his business wholly within the limits of the Post. In 1960, the Comptroller of Public Accounts demanded and collected over petitioner’s protest the taxes which constitute the subject matter of this suit. The taxes were correctly calculated.

The question to be decided is whether having ceded exclusive jurisdiction to the United States over the lands in question, reserving only jurisdiction to execute judicial process thereon, the State of Texas may, nevertheless, tax privately owned personal property located on the lands. The Court of Civil Appeals has held that the State may tax such property. We hold that it cannot do so.

The powers which a state may exercise over lands within its boundaries which have been acquired by the United States for use as a military reservation are governed and limited by Article 1, Section 8, Clause 17 of the Constitution of the United States as interpreted by the Federal Judiciary. The relevant parts of the constitutional provisions read as follows:

“Section 8. The Congress shall have Power * * *
(t ‡ * ‡
“To exercise exclusive Legislation * * * over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; * *

In interpreting this constitutional provision, the Supreme Court of the United States has held that the United States has exclusive jurisdiction over lands acquired for constitutional purposes with consent of a state, Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091 (1929), but that a state may qualify its consent to the acquisition with “reservations [of jurisdiction] not inconsistent with the [federal] governmental uses.” James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937). Some states qualify legislative or statutory consent to acquisition of lands with express statutory reservations of jurisdiction over the lands. For example, the opinion in James v. Dravo Contracting Co. reflects that in granting consent for the acquisition of lands by the United States, the West Virginia Legislature by statute ceded only concurrent jurisdiction and expressly reserved concurrent jurisdiction consistent with the purposes for which lands were acquired. The Supreme Court held the reservation valid and, on that basis, upheld the jurisdiction of the State to collect a privilege tax, measured by gross receipts, from a contractor for work performed for the United States on such lands.

Legislative consent for the United States to acquire lands in this State for constitutional purposes is contained in Art. 5242. Acquisition may be by condemnation. Art. 5243. However, the consent given in Art. 5242 is qualified by the provisions of Art. 5247. Both articles are a part of Title 85 of the statutes and both were in effect when the United States acquired the Fort Hood lands in 1942 and 1943. Art. 5247 provides: “Whenever the United States shall acquire any lands under this title and shall desire to acquire constitu-t-ional jurisdiction over such lands * * * it shall be lawful for the Governor * * * to cede to the United States exclusive jurisdiction * * * when application may be made to him for that purpose * * *.” The Article further provides: “No such cession shall ever be made except upon the express condition that this State shall retain concurrent jurisdiction * * * over * * * the lands so ceded” for the purpose of executing judicial process, “and such condition shall be inserted in such instrument of cession.” Considered in context and properly interpreted, Articles 5242 and 5247 give legislative consent to the United States to acquire Texas lands, but deny exclusive federal jurisdiction over such lands unless it is ceded by the Governor’s deed when cession of jurisdiction is requested.

It thus appears that at the time the Fort Hood lands were acquired by the United States there were both federal and state limitations on the authority of the Governor of Texas to reserve jurisdiction to the State over the lands. By the federal law the Governor could reserve all jurisdiction over the lands consistent with the federal uses, but no more, and by Article 5247 the Governor was required to reserve only jurisdiction to execute state judicial process anywhere on the lands. There is no sound reason for saying that the authority conferred on the Governor by Art. 5247 to cede exclusive jurisdiction does not include authority to cede a lesser jurisdiction. We hold, therefore, that in the area between the maximum permitted by federal law and the minimum required by Article 5247, the extent of jurisdiction reserved to the State over lands acquired by the United States with the consent given in Article 5242 is, in the absence of other limitations, a matter for negotiation by the Governor and is settled and concluded by his deed of cession. This holding is strictly in keeping with Art. 4, § 10 of the Constitution of Texas, Vernon’s Ann.St., which provides that the Governor “shall conduct, in person, or in such manner as shall be prescribed by law, all intercourse and business of the State with other States and with the United States.” The holding would also settle the issue in this case but for the contention of respondents, sustained by the Court of Civil Appeals, that an amendment to Art. 5248, enacted by the Legislature after acquisition by the United States of the Fort Hood lands but before execution of the deed of cession, placed an additional limitation on the authority of the Governor to cede the State’s jurisdiction over the lands and must be read into his deed.

When the lands were acquired by the United States, Art. 5248 provided only that the United States should be secure in their possession and enjoyment of lands acquired under Title 85 and that the lands and improvements thereon should be exempt from taxation under the authority of the State as long as they were “held, owned, used and occupied by the United States for the purposes expressed in this title and not otherwise.” In 1950 the Legislature added the following proviso:

“provided, however, that any personal property located on said lands which is privately owned by any person, firm, association of persons or corporation shall be subject to taxation by this State and its political subdivisions; * * (See Acts 1950, 51st Leg., 1st C.S., p. 105, ch. 37, § 1.)

We hold that the proviso neither added to the power of the State and its political subdivisions to tax privately owned personal property on Fort Hood lands nor limited the authority of the Governor to cede away the power to tax such property.

We have said that the proviso did not add to the power of the State and its political subdivisions to tax privately owned personal property on Fort Hood lands. The power of these governmental units to tax privately owned personal property is conferred by Sec. 1 of Art. VIII of our Constitution which was adopted in 1876. Inasmuch as the United States did not acquire exclusive jurisdiction over the Fort Hood lands until the cession deed was executed in 1950, all privately owned personal property located on the lands was “subject to taxation” at all times from the date the lands were acquired to the date of the deed of cession, even in the absence of the proviso. And if it was the intention of the Legislature in enacting the proviso to make privately owned personal property on lands over which exclusive jurisdiction has been ceded subject to taxation, the effort is unavailing. Once exclusive jurisdiction is ceded only those State and local taxes authorized by the Buck Act, 4 U.S.C. §§ 10—110, may be levied against property in the Federal enclave. See Humble Pipe Line Co. v. Waggonner, Sheriff, 376 U.S. 369, 84 S.Ct. 857, 11 L.Ed.2d 782 (1963).

Respondents do not contend that petitioner would be liable for the taxes collected if the deed of the Governor was effective to cede away the power to tax. They contend that the proviso placed an additional limitation on the authority conferred on the Governor by Art. 5247. The effect of the argument is that the proviso required the Governor to reserve jurisdiction to tax privately owned personal property in his deed of cession, and that the reservation will be read into the deed even though it is not expressly contained therein. Were we so to hold, we would have a serious federal question of whether Article 1, Section 8, Clause 17, permits qualification of a state’s consent to acquisition by implied reservations. See Yellowstone Park Transportation Co. v. Gallatin County, 9th Cir., 31 F.2d 644, 645 (1929), in which it is said that “after the date of cession, the ceded territory was as much without the jurisdiction of the state making the cession as was any other foreign territory, except in so far as jurisdiction was expressly reserved.” But we do not so hold. The proviso does not purport to limit the authority conferred on the Governor by Art. 5247. In a somewhat similar situation in which the argument was made that the wording of the state statute of consent implied a reservation of jurisdiction to tax privately owned personal property on a military reservation, the Supreme Court said: “But to this we do not assent. The words are ill-adapted to expressing such a purpose— so much so that, had it existed, there can be little doubt that it would have been stated differently.” Surplus Trading Co. v. Cook, 281 U.S. 647, 657, 50 S.Ct. 455, 458, 74 L.Ed. 1091 (1929). Just so here. Had the Legislature intended to limit further the authority of the Governor or to require that an additional reservation of jurisdiction be included in his deeds of cession, it would seem that more apt language would have been used and that the requirement would have been placed in Art. 5247, not Art. 5248.

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

      . All references to Articles are to Vernon’s Texas Civil Statutes.

      . Emphasis ours throughout unless otherwise indicated.


author: CLAUDE WILLIAMS, Justice.

text:
    Joel Henry SKIDMORE, Appellant, v. Estella FINLEY, Appellee.
    No. 16608.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 5, 1965.

      Lyne, Blanchette, Smith & Shelton, Erich F. Klein, Jr., and Robert T. Gowan, Dallas, for appellant.
    Yarborough, Yarborough & Johnson, and Roger L. Turner, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This appeal involves a venue question under Subdivision 9a of Art. 1995, Vernon’s Ann.Civ.St. Estella Finley brought this action in the District Court of Kaufman County, Texas against Joel Henry Skid-more, Continental Trailways Bus System, Trans-Continental Bus System, Inc., Mrs. Lena Marie Phillips and Glenn Wesley Phillips, alleging that while plaintiff was a passenger in a Continental Trailways Bus driven by Joel Henry Skidmore, she sustained personal injuries when the bus collided with an automobile driven by Glenn Wesley Phillips in Kaufman County, Texas. The defendant, Joel Henry Skid-more, a resident of Dallas County, Texas, timely filed his plea of privilege to be sued in said county. Plaintiff controverted the plea alleging the exception contained in Subdivision 9a of Art. 1995, V.A.C.S. The trial court, after hearing the plea without a jury, rendered judgment overruling same. Findings of fact and conclusions of law were neither requested nor filed.

By two points of error appellant urges that the trial court erred in overruling his plea of privilege because appellee did not meet the burden of showing by preponderance of the evidence that appellant was negligent and that such negligence was a proximate cause of the collision which resulted in appellee’s injuries.

In order to bring the case within the exception of the venue statute, Subdivision 9a of Art. 1995, V.A.C.S. it was encumbent upon appellee to establish by a preponderance of the evidence that there was an act of negligence which occurred in Kaufman County, Texas; that such negligence was caused by the appellant Joel Henry Skidmore; and that such negligence was the proximate cause of appellee’s injury. Appellant takes the position that the evidence in this case does nothing more than establish that an accident occurred and that under the rule established in Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, the occurrence of an accident or a collision is not of itself evidence of negligence. Appellant also relies upon such cases as Bart DeLatt & Associates, Inc. v. Knight, Tex.Civ.App., 369 S.W.2d 65; Arnett v. Thomas, Tex.Civ.App., 386 S.W.2d 815; Austin Bridge Co. v. Polanca, Tex.Civ.App., 300 S.W.2d 173; and Conner v. Chatman, Tex.Civ.App., 272 S.W.2d 136.

While we recognize that the decision in each of these cases relied upon by appellant is correct as applied to the factual situation in each of said cases, we do not believe that they are controlling of the factual situation presented by this record.

The testimony in this case reveals that the accident occurred on Highway 80 at a point approximately four miles West of Terrell, in Kaufman County. At that point Highway 80 is a four-lane highway running generally East and West. Both the bus driven by Skidmore, and in which appellee was riding as a passenger, and the' automobile driven by Phillips, were traveling in a westerly direction on the highway. The automobile was traveling in front of the bus. Phillips testified that he was driving on the right hand side, or right lane, of the highway at about 55 miles per hour; that it was approximately 10:00 o’clock at night; that he had no warning whatsoever when suddenly the bus drove into the back end of his automobile. He did not know how fast the bus was going at the time it struck his automobile. He did not hear any brakes screech or anything like that before the collision; that he did not change lanes prior to the collision in question. Appellant Skid-more, in response to written interrogatories, stated that he was driving the bus in a westerly direction on U. S. Highway 80 in the lane nearest the median strip of said four-lane highway when an automobile also proceeding in a westerly direction, suddenly commenced a turn from the right hand or outside lane of said highway and moved into the lane directly in front of the bus which he was operating; that the car in making such a sudden turn in front of the bus caused the collision between the two vehicles.

It is our opinion that appellee did fulfill her burden to bring her case within the exception of the venue statute. In the absence of findings of fact or conclusions of law the judgment implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support same, and the implied findings of fact incident thereto, it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 5 A.L.R.2d 963; Lamb v. Ed Maher, Inc., Tex.Civ.App., 368 S.W.2d 255; Texas Sanitation Co. v. Marek, Tex.Civ.App., 381 S.W.2d 710; Pittsburgh Plate Glass Co. v. Bragg, Tex.Civ.App., 383 S.W.2d 623.

Appellee had pleaded that appellant had been guilty of negligence in failing to keep a proper lookout; failing to make proper application of his brakes so as to avoid the collision; and in operating the bus at an excessive rate of speed. Each of these issues was raised by the testimony, both direct and circumstantial. The court chose to believe the testimony of Phillips and not believe that of appellant. The testimony was conflicting and the court had the right to resolve such conflict and make the implied findings. Since there was some evidence of probative force to support the implied findings we shall not disturb them on appeal.

Appellant’s points are overruled and the judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    HUDIBURG CHEVROLET, INC., Appellant, v. GLOBE INDEMNITY COMPANY, Appellee.
    No. 16563.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 19, 1965.
    Rehearing Denied Dee. 17,1965.

      Kerr, Day & Cook, and Taylor Gandy, Fort Worth, for appellant.
    Thompson, Knight, Wright & Simmons, and Pinkney Grissom, David S. Kidder and George C. Chapman, Dallas, for appellee.
   MASSEY, Chief Justice.

The judgment of this court, in part affirming and in part reversing that of the trial court, is to be observed in a previous opinion. See Hudiburg Chevrolet, Inc. v. Globe Indemnity Co., Tex.Civ.App., 383 S.W.2d 65.

On October 6, 1965, the Supreme Court (see 394 S.W.2d 792) affirmed that portion of our judgment which reversed that of the trial court, being our holding which negated any insurance coverage under what was referred to and described as “Policy A” in our previous opinion. However, the Supreme Court reversed and remanded that portion of our judgment affirming the trial court, that being the holding that there was no insurance coverage under what was referred to and described in our opinion as “Policy B”. Remand to this Court was for the purpose of deciding whether the jury finding that Roark’s taking of the truck from the premises of Hudiburg Chevrolet, Inc. on June 13, 1961, was theft (within the meaning of Policy B) constituted a finding against the great weight and preponderance of all the evidence.

We overrule the point of error presented by Globe Indemnity Company wherein it contends that the jury finding that the taking of the truck was theft (under Policy B) was against the great weight and preponderance of the evidence. There was evidence to the effect that the taking was theft according to the Supreme Court’s opinion. Our previous holding of “no evidence” was made because of a misinterpretation of the efficacy of the proof introduced. As efficient evidence we agree that it had probative force and effect.

As we interpret the prayer for relief by Hudiburg Chevrolet, Inc. the maximum amount we may award it is $2,428.83.

Judgment of the trial court is reversed. The judgment of this Court is that Hudi-burg Chevrolet, Inc. have and recover of and from Globe Indemnity Company the sum of $2,428.83, plus interest thereon at 6 per cent per annum from June 13, 1961. All costs are adjudged against Globe Indemnity Company.


author: NYE, Justice.

text:
    SOUTH TEXAS ELECTRIC COOPERATIVE, INC., Appellant, v. V. A. ERMIS and wife, Terezie Ermis, Appellees.
    No. 116.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 4, 1965.

      Fisher Alsup, Corpus Christi, for appellant.
    Roger Butler, of Butler, Schraub, Schafer & Gandy, Robstown and Corpus Christi, for appellees.
   NYE, Justice.

This was a proceeding for condemnation of an easement for an electric transmission line. South Texas Electric Cooperative, Inc., appellant herein, condemned a fifty-foot easement over and across the farm of V. A. Ermis and wife, for the purpose of erecting, operating and maintaining an electrical transmission line. The case was tried in the County Court to a jury. The only disputed issue before this Court on appeal concerns the damages to the remainder of the land not taken by the easement condemned.

Ermis owned an 88.23 acre farm less than a mile northwest of the city limits of Robs-town in Nueces County, Texas. The farm was rectangular in shape, being an average of about 3700 feet long north to south and 1035 feet wide from east to west. The appellant condemned a fifty-foot easement diagonally across the tract from northwest to southeast, it being 3825 feet and containing 4.3 acres of land. The jury answered Special Issues No. 1 and No. 2, finding that the easement strip taken to be of the value of $500.00 per average acre before the taking and the value of the fifty-foot easement after the taking to be $250.00 per average acre. This resulted in an award in the amount of $1075.00 for Ermis. No dispute is made over this amount or these findings. The jury also found in answer to Special Issue No. 3 that the value of the per average acre of the remaining tract of land, exclusive of the easement immediately before the taking, to be $500.00. In answer to Special Issue No. 4, the jury found the value per average acre of the remaining tract of land, exclusive of the easement taken, after the taking, to be $450.00. Calculated on the exact number of acres not taken at $50.00 per acre the amount was $4196.50. The total amount awarded to Ermis, as set forth in the judgment based on the jury verdict, was $5271.50.

The record shows that the utility company had erected its power transmission lines across the farm at the time of the trial. The line consisted of eight single poles approximately 450 feet apart, eighteen inches in diameter, approximately forty-six feet high, with two cross arms near the top of each pole. The three wires were suspended from these cross arms in the area, a distance of not less than thirty-two feet from the ground. The usual rights of ingress and egress were given the condemnors for the purpose of constructing, maintaining and operating the transmission lines. The complaint in appellant’s first three points is that there is no evidence or insufficient evidence to sustain the jury findings regarding the damage to the remainder of ap-pellee Ermis’s property, and that the trial court erred in not disregarding the answers to Special Issues No. 3 and No. 4.

Appellant’s contention is that the trial court erred in not granting judgment based on the jury’s answer to Special Issues No. 1 and No. 2 (relative to the actual easement taken). Appellant reasons that there was no evidence or insufficient evidence as to how or why the remainder of the farm would be damaged, citing, Texas Electric Service Company v. Vest, Tex.Civ.App., 310 S.W.2d 733 (1958), ref., n. r. e., and Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837 (1951) writ dism. In the Earl Vest case, concerning the damage to the remainder of thirty-six sections of land after the taking of an easement for a highline, the Court held, that there was no reasonable information concerning the damages to the remainder to substantiate the market value of the testimony of the condemnee’s witness. In the Zirjacks case, again the Court held that the judgment must fall for the reason that the evidence does not support the findings of the jury. These two cases are distinguishable from this case by the facts.

Ermis’s farm at one point was only 492 feet from the city limits of Robstown, Texas. It was very good heavy black land, well drained, and probably as good a land as there is in that area for farming purposes. It was a long, narrow strip of land, being approximately four times as long as it was wide. The electric transmission line ran lengthwise and catty-cornered. On the north side is a well improved county road and on the south side is a drainage ditch which carries off surface water. There was no dispute between the two appraisers for the respective parties that the land was very valuable. Appellees’ expert witness was well qualified, having been in the real estate and farming business for eighteen years. He qualified fully as an expert, testifying that he was an approved appraiser for various institutions, including the State Highway Department. He tested his qualifications by showing his knowledge of the various different approaches in arriving at market value and testified as to numerous comparable sales in the area around Robs-town. He testified that Ermis’s land was adapted for the development into a nice subdivision; that a sewer plant was near the northwest corner of the property and that the land’s proximity to the town would make the property appreciate in value in the future. However, although the land was adaptable as a subdivision, the witness testified that the highest and best use at the time of the taking was for farming. The particular purposes to which land may be devoted as well as others to which it is adapted may be shown in evidence to enable the court and jury to determine its market value. The market value of property includes its value for any use to which it may be put. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, Comm. of App. 1936, opinion adopted by Supreme Court.

There was other testimony as to depreciation of the value of the remainder. The highline would interfere with radio reception and there would be fouling of surrounding lands by weeds and trash collecting around poles and spreading over the land. The witness testified that from a farm standpoint the highline does not run with rows but runs at an angle; that the highline would hinder airplane dusting and that this was important to a farmer who must disinfect his land on occasions of emergency after a heavy rain and infestation of crops. He stated unequivocally that the land had suffered severance damage to each and every acre of the part not taken. He compared such severance damages to the hypothetical farm without an electrical transmission line, comparing it to one with a highline. He stated that if the price for one tract with a highline was the same as another tract without it, a person would just not buy a tract with the highline. On cross-examination he admitted that a crop dusting airplane could operate on Ermis’s farm. Appellee Ermis’s expert witness concluded that the value of land prior to the taking was $600.00 an acre and that the market value of the remaining portion of the tract immediately after the taking was $525.00.

Appellant’s expert witness testified that there was no severance damage whatsoever; that the part not taken before and immediately after the taking would have the same value.

Damages to the remaining portion of a tract is determined by ascertaining the difference between the market value of the remaining portion of the tract immediately before and immediately after the taking. State v. Carpenter, Sup.Ct., supra. The issue of depreciated market value is largely a matter of opinion evidence and a very wide range of factors may be considered legitimately by qualified witnesses as a foundation for their opinion. Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151. The parties have the right to introduce evidence of anything which would tend to affect the value of the land in the eyes of a prospective purchaser which tends to make it more or less valuable to the owner. These factors may be considered in determining the depreciation to the remainder by the jury. Texas Electric Service Co. v. Etheredge, Tex.Civ.App., 324 S.W.2d 322; Brazos River Conservation & Reclamation Dist. v. Costello, Tex.Civ.App., 169 S.W.2d 977, ref. w. o. n.

We hold that there is sufficient evidence in the record regarding damage to the remainder of appellees’ property. Southwestern Public Service Co. v. Spurlock, Tex.Civ.App., 378 S.W.2d 134 (1964); Texas Pipe Line Co. v. Hunt, Sup.Ct., supra; Texas Electric Service Company v. Merket, Tex.Civ.App., 300 S.W.2d 167 (1957); Tennessee Gas Transmission Co. v. Dishman, Tex.Civ.App., 303 S.W.2d 471 (1957), ref., n. r. e.; West Texas Utilities Company v. Irvin, 161 Tex. 5, 336 S.W.2d 609, Sup.Ct.1960. Appellant’s points one through three are overruled.

Appellant’s fourth point complains that the jury’s findings to special issues were excessive; that the burden of proof to establish damage to the remainder, if any, was on the appellees. Appellees’ expert witness testified that the value of the remainder, before the taking, exclusive of the strip taken, was $600.00 per average acre, and that the total worth of such land, exclusive of the strip taken, was $50,370.00. He testified that after the taking of the strip condemned for the use as an electric power line easement, that the value of the land was worth $525.00 per average acre, or $44,073.75, as the market value of the remaining land after the taking. This difference would result in damage to the remainder of $75.00 per average acre or a total of $6294.75. The jury found the value of the land before the taking at $500.00 per average acre and $450.00 per average acre after the severance. The effect was damages to the remainder of $50.00 per average acre, or a total of $4196.50. As held in State v. Carpenter, Sup.Ct., supra, the issue of depreciated market value is largely a matter of opinion evidence. The jury in answering the special issues and assessing the value to the land, had the benefit of expert witnesses and the testimony concerning the various elements of damages that were brought out in the testimony. The jury did not accept the highest or lowest value in arriving at their answers. Appellees’ witness testified to damages of $25.00 per average acre more than was awarded by the jury. We hold that the jury’s findings as to the value assessed to the remainder before and after the taking of the severed land are not excessive and are supported sufficiently by the evidence. Southwestern Public Service Co. v. Goodwine, Tex.Civ.App., 228 S.W.2d 925, ref., n. r. e.; Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, Sup.Ct.; State v. Carpenter, supra; Texas Electric Service Co. v. Etheredge, supra; Texas Electric Service Co. v. Merket, supra; Wilbarger County v. Hall, Tex.Com.App., 55 S.W.2d 797. Appellant’s point four is overruled.

Appellant’s remaining point complains of the trial court’s ruling in refusing to strike all of the testimony of Mr. Herman Woods, relating to the damage to the remainder of the land, because such testimony consisted of mere naked opinions and abstract conclusions. Witness Wood was the expert witness for the appellees and was duly qualified and tested as an expert to give his opinion as to the reasonable market value of the appellees’ land. No objection was made by the appellant to any specific question relative to the damage or market value as testified by witness Wood at the time such witness was testifying. The objection was a blanket complaint directed against all of the evidence relating to damage given by the witness, without any particularization as to any specific part thereof that was deemed harmful. The objection was made to strike the testimony after the witness had fully testified on direct, was cross-examined by appellant, and re-examined on re-direct examination. Such objection was clearly too general and too late to be considered. Wheatley v. Benson, Tex.Civ.App., 279 S.W. 911 (1926), writ dism.; Dabney v. Keene, Tex.Civ.App., 195 S.W.2d 682 (1946), ref., n. r. e.; Southern Underwriters v. Weldon, Tex.Civ.App., 142 S.W.2d 574 (1940). See McCormick & Ray, §§ 24—26, pp. 22 to 26.

Appellant’s fifth point is overruled.

Judgment of the trial court is affirmed.


author: DOUGLAS W. GREENE, Special Judge.

text:
    STATE of Missouri at the relation of Daniel O’BRIEN, Prosecuting Attorney, On the Information of Tillman Hardy, Informant and Relator, v. William PETRY, Jack Scatcherd, Carmen Rand, Ritchey Fay Calahan, Richard Coates, William Cohen, Joseph Rosel, Warren Burgess, and Charles Cromwell, Respondents.
    No. 31945.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Rehearing Denied Nov. 17, 1965.
    Application to Transfer Denied Jan. 10, 1966.

      Joseph Langworthy, Pacific, for appellant-informant, Tillman Hardy.
    Edward T. Wright, St. Louis, Theodore C. Traeger, Clayton, for respondents.
   DOUGLAS W. GREENE, Special Judge.

This case is an action in quo warranto, and for a declaratory judgment, which was filed on September 10, 1962, in the Circuit Court of St. Louis County, in which action Tillman • Hardy was the informant, and William Petry, Jack Scatcherd, Carmen Rand, Ritchey Calahan, Richard Coates, William Cohen, Joseph Rosel, Warren Burgess, and Charles Cromwell, were respondents.

The relevant facts are as follows: Informant had been a member of The Thea-tre Guild of Webster Groves, Missouri, for ten years. The Guild is a corporation organized under Chapter 352, V.A.M.S., and its function is to promote interest in the dramatic arts, and to produce dramatic and theatrical performances for the benefit and enjoyment of the general public in Webster Groves and the surrounding area.

The record does not reveal the criteria for becoming a member of this civic group, but does show that Section 8 of Article II of the By-Laws of the Guild provides that expulsion of members for reasons other than nonpayment of dues shall be a matter of discretion of the Board of Directors. Sec. 8, Art. II further provides that the Board may not act in any such case without notification, in writing, to the member, of the charges against him, and such notice is to inform him of a date for a closed session hearing. Only after such hearing, and after a vote of at least two-thirds of the whole Board assembled therefor, in favor of expulsion, shall the member be dropped.

Article IV of the Articles of Association provides that the Board shall consist of nine members, who are elected by the membership, from their own number. Article III of the By-Laws provides that Board members are elected at the annual meeting of the membership prior to March 15th, but their term of office does not begin until the following June 1st. Article IV of the By-Laws provides that no member shall be eligible for election or appointment to the Board who has not been a member in good standing for one full year next preceding his election or appointment.

On May 12, 1960, informant was working on the construction of a set for a play called “The Rainmaker.” Without obtaining permission from the technical director, or production manager, of the play, informant made changes in the design, by painting portions of the set, the wall of the building, and part of the stage a different color than had been prescribed. To accomplish his purpose, he left the outside door unlocked, as he had no key to the building, and then returned to the building after the other workers had left. He also drilled holes in the ceiling tile in violation of orders from the Director and Production Manager. Informant was served with written notice directing him to appear before the Board of Directors on June 8, 1960, to answer charges preferred against informant by the Board, the substance of which charges are set out above. Informant appeared at the hearing and represented himself. He objected to the Board being his judges; asked for a jury trial; objected to the hearing not being public, and objected to the By-Laws providing for the hearing.

The president, in each instance, stated that the Board was complying with the By-Laws, specifically Article II, Section 8. Informant admitted the charges, and admitted he was wrong in re-entering the building, after leaving the door open the night before, and painting the set without authority. He was asked to conform to the wishes of the group, and was told that his actions, which were done without authority, caused inconvenience and unhappiness to the Guild. He assured the Board that if he was allowed to remain a member, he would not do anything in the future without consulting the person in charge. Informant was advised by the president that if there was any repetition of his individual actions without authority of the Guild, or its officers, there would be no question of his expulsion. A vote was taken and the vote was 7 to 1 against expulsion. Informant was told, and he considered he was on probation.

On March 11, 1962, informant was elected to the Board for a two-year term. His term of office was to begin June 1, 1962.

Some time after March 11th, but before April 4, 1962, informant was in charge of set construction for a play called “Autumn Garden.” Gwen Springett was production manager, and Mr. William Petry was technical director. The production manager is responsible for set design, and the technical director is responsible for all technical production aspects of the play, including lighting, and is responsible for all equipment, including the equipment in the sound and light booth. The equipment kept there was valuable.

Without authority from Mr. Petry, informant had keys to the light and sound booth made for his own use. Also, without authority from Gwen Springett, he completely changed one side of the set, and enlarged the other side. He did not consult with Gwen Springett before he did this. After he changed the set, he found that he had closed off access from one side of the stage to the other for the actors back stage, so he cut a hole through a main innerwall of the building that opened out onto a narrow nine or ten inch ledge over which the actors had to move to get to the other side of the stage. He also changed the lighting of the set by putting some lights behind the set. Mr. Petry had not given him authority to do this.

On April 4, 1962, Mr. Hardy was served with written notice to appear before the Board on that same evening at 8 P.M. to answer to the charge that he had altered the innerwall at the rear of the stage without proper authority.

The notice called attention to Section 8, Article II of the By-Laws, and set out the pertinent portions of said article, as previously stated. April 4th was evidently a regular meeting night, as Mr. Hardy was at the meeting. Although his term as a board member did not start until June 1st, he had authority to attend board meetings, but could not vote. He received the notice a few minutes before the meeting started. Informant was called before the board. He did not request a continuance, and presented his case. Informant admitted cutting the hole in the wall, and gave his reasons for doing so. The minutes of the meeting (Respondents’ Exhibit A) indicate considerable discussion between the board and informant on the issue. After the discussion a ballot was taken and the board voted 6 to 1 to expel informant, the president abstaining. Informant was called in, and told of the board’s decision. He remarked “This is not the end of it,” which was a most prophetic statement. Informant continued to appear at Board meetings. He appeared on May 2, 1962, at which time he was given written notice of his expulsion. He was asked to pick up his personal possessions, and he left. He appeared at a general meeting of the membership in May, and at another board meeting June 8th. He was asked to explain his presence. He said he had come to take his rightful place on the new board. He was advised again that he was not a member of the Guild or the Board. They refused to seat him on the Board, and after a heated discussion, informant left, saying they would hear from him again. To avoid further incidents and contacts with informant, the Board went underground, and met at times and places unknown to informant. He thereafter filed suit, on September 10, 1962, against respondents, asking that they be ousted from their offices for unlawfully using their offices as Board members (meeting without him), and asking for a declaratory judgment to construe the franchise, by-laws, and articles of association of the Theatre Guild of Webster Groves, and to declare whether or not informant was validly expelled from membership in the Guild. Informant, on January 10, 1964, requested the court to prepare a statement of the grounds for its decision, and to make findings of fact on any and all principal controverted fact issues. On February 10, 1964, the cause was heard in the Circuit Court of St. Louis County, and on April 1, 1964, a decree was entered which found the issues for defendants, and against the informant. The decree further recited that informant was afforded such due process as he requested, wanted, and was entitled to under all the circumstances; that informant was given notice of the meeting at which he was expelled, and that if the notice was inadequate the informant waived his right to object to this by his attendance at and participation in the meeting. The decree further found that the informant had been validly expelled, and was not legally a member of the Guild, nor a member of its Board of Directors, and that nothing in the franchise, By-Laws, nor Articles of Association of said Guild could be construed to the contrary. All costs were taxed against informant. No separate findings of fact and conclusions of law were filed by the trial court.

Informant timely filed his motion for new trial alleging sixteen major errors on the part of the trial court. The trial court overruled said motion, and informant appealed to this court.

The issues raised by informant on appeal are many and diffuse. The case is not as complicated, however, as he would have us believe.

There are only four main issues in the case. First, did the trial court’s decree contain sufficient findings of fact and conclusions of law to legally comply with informant’s request for such findings, which request was filed prior to trial; second, was the informant given a proper and timely notice of the meeting at which he was expelled, and, if not, did he waive any defects in such notice by appearing at the hearing, and participating therein; third, did the board abuse its discretion in voting to expel informant as a member of the Guild, and, fourth, if informant was properly expelled as a member of the Guild, did he lose all of his rights as a member, including the right to serve on the Board of Directors.

As to the first issue, there is no dispute as to the relevant and material facts of the case. It is undisputed that Article II, Section 8, of the By-Laws of the Guild, provides that expulsion of members for reasons other than nonpayment of dues shall be a matter of discretion of the Board, provided that the Board may not act in such cases without notification in writing to the member of the charges against him, and which informs him of the date of a closed session hearing, and that after such hearing, and on a vote of at least two-thirds of the whole Board assembled for such purpose, the member may be expelled.. It is not disputed that informant was given written notice of the charge against him, and that such notice was given to him about five minutes before the meeting began. It is not disputed that informant appeared at the hearing; that he did not ask for a continuance; that the charge against him was read to him, and he was given an opportunity to answer. It was undisputed that Gwen Springett was production manager of the play “Autumn Garden”; that she was in charge of set design for the play; that informant changed the design of the set without consulting with Miss Springett, and that he cut a hole in the rear innerwall of the building as part of the design change without any authority from her or anyone else, which incident was the charge he was tried on, according to the notice given him. It was not disputed that Article IV of the Articles of Association of the Guild provides that the Board of Directors shall consist of nine members, and that they shall be elected by the members from their own number. It was not disputed that the term of office of a board member elected in March does not begin until the following June 1st (Art. Ill of By-Laws), and that no member is eligible for election or appointment to the Board who has not been a member in good standing for one full year next preceding his appointment (Art. IV, Sec. 1 of By-Laws).

It is generally true that failure by the trial court, upon request made before trial of the case, to prepare a brief opinion containing a statement of the grounds for its decision and its findings on any principal controverted fact issues constitutes reversible error. Supreme Court Rule 73.01, V.A.M.R., Sec. 510.310, R.S.Mo.1959, V.A.M.S.; Clauson v. Tipton, Mo.App., 147 S.W.2d 148. In this case, however, there is no principal controverted fact issue. In such a situation no separate written finding of fact is necessary, or legally required. In re Helms Estate, Mo.App., 136 S.W.2d 427. If an express finding on any given subject was desired by informant, it was his duty to request it. In re Kellam’s Estate, 227 Mo.App. 291, 53 S.W.2d 401. Informant made no such request, and is now in no position to complain.

As to the second issue, informant was given notice of the expulsion hearing. It cited Section 8 of Article II of the ByLaws, listed the time and date, and location when and where informant was to appear before the Board, and listed the charge against him. In response, informant did appear before the Board; was again advised of the charge; was given the opportunity to be heard, and was heard. The purpose of the law in requiring notice is that the party notified will have an opportunity to he heard. State ex rel. Murphy v. Aronson, Mo.App., 330 S.W.2d 140. Since informant was heard, and requested no additional time to present his case, we hold the notice was valid. The question of whether or not there was proper notice was a question of fact for the trial court, W. M. Crysler Co. v. Smith, Mo.App., 377 S.W.2d 134. The trial court decided that the notice given informant was proper. This decision, as all decisions by the trial court in cases of this type, will be upheld unless clearly erroneous. Lubrication Engineers, Inc., v. Parkinson, Mo.App., 341 S.W.2d 876. We find no error on the part of the trial court on this issue.

The third issue is, did the Board abuse its discretion in voting to expel informant.

The Theatre Guild, organized under Chapter 352, R.S.Mo.1959, V.A.M.S., had the right to provide in its By-Laws for the expulsion of members guilty of any offense which affects the interest of the group. Section 352.110, R.S.Mo.1959, V. A.M.S. It did so provide in Article II, Section 8, of the By-Laws. The record is crystal clear that the informant not only committed the offense with which he was charged, but committed many other acts which were against the wishes of many members of the Guild, and its officers. The Board had every right to expel informant on the basis of the submitted charge alone. The additional wrongful actions of informant, as listed in this opinion, in defiance of, or indifference to, proper authority, confirm the Board’s action in expelling informant. As to the fourth issue, informant does not make a fair statement in his brief regarding the court’s action when he states that the trial court erred in affirming informant’s expulsion as a member of the Board of Directors. (Emphasis ours.) The court made no such finding. The decree stated specifically “ * * * that the informant was validly expelled and is not now legally a member of said Guild, nor a member of its Board of Directors.”

Informant was legally and validly expelled as a member of the Guild. Article IV of the Articles of Association of the Guild provides that the Board is made up of nine members. This could only mean members of the Guild. The same article further provides that Board members are to be elected by the members of the Guild from their own number. Article IV of the By-Laws provides that a board member must be a member of the Guild in good standing for a full year before his election.

It follows, as inescapably as night follows day, that if informant was legally expelled as a Guild member, he could not take or hold office as a Board member. To hold otherwise would strain judicial credulity past the breaking point.

While the courts will protect a member of an association against illegal expulsion, the field of judicial interference with the actions of voluntary associations as to controversies between their members over the method and manner in which the rights of membership may be maintained and terminated is and should be a very narrow one, and its boundary should be maintained with the utmost care, so that only upon the clearest kind of showing, that the constitution and rules are violated by the decisions of the tribunals set up by them should the courts permit their jurisdiction to be invoked. Junkins v. Local Union No. 6313, Communication Workers of America et al., 241 Mo.App. 1029, 271 S.W.2d 71, l. c. 76.

There is no showing here that the Board’s decision to expel informant violated such rules, or that informant was not granted a fair hearing, either before the Board, or the court below.

The judgment is affirmed.

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


author: SPERRY, Commissioner.

text:
    The STATE of Kansas and Shawnee Mission High School District ex rel. GEORGE J. SHAW HAULING CO., a corporation, Plaintiff-Appellant, v. BOB ELDRIDGE CONSTRUCTION COMPANY, Inc., a corporation and Central Surety and Insurance Corporation, a corporation, Defendants-Respondents.
    No. 24281.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 6, 1965.
    Milton C. Clarke, Roy P. Swanson, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, for appellant.
    Donald K. Hoel, of Shook, Hardy, Qtt-man, Mitchell & Bacon, John E. Blake, of Blake, Fabian & Fabian, Kansas City, for respondents.
   SPERRY, Commissioner.

This action was instituted by the George J. Shaw Hauling Company, a corporation, referred to hereafter as plaintiff. Bob Eldridge Construction Company, Inc., hereafter referred to as Eldridge, and Central Surety and Insurance Corporation, referred to as Surety, were defendants. Plaintiff sought recovery of the sum of $1,736.42, on a statutory bond required of public bodies to secure payment to the suppliers of materials, labor, and various supplies used or consumed in the construction of a public building in the State of Kansas. The Statutes and Court decisions of the State of Kansas will govern and control the decision in this case. From an adverse judgment, plaintiff prosecutes this appeal.

This cause is before us on an agreed statement of facts. Eldridge made and entered into a general contract with Shawnee-Mission High School District, Merriam, Kansas, to erect a junior high school building. Under the terms of the contract Eld-ridge agreed to furnish all labor and materials and perform all work as required by the specifications contained and incorporated into the contract. Eldridge, as principal, and Surety, as surety, executed and delivered their joint and several bond, number 310927, to Shawnee Mission High School District for the purpose of complying with Section 60-1413, G.S.Kansas, which provided as follows:

“That whenever any public official shall, under the laws of the state, enter into contract in any sum exceeding $100 with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take, from the party contracted with, a bond with good and sufficient sureties to the state of Kansas in the sum not less than the sum total in the contract, conditioned that such contractor or contractors or the subcontractor or subcontractors of said contractor or contractors shall pay all indebtedness incurred for supplies, materials or labor furnished, used or consumed in connection with or in or about the construction of said public building or making such public improvements, including gasoline, lubricating oils, fuel oils, greases, coal and similar items used or consumed directly in furtherance of such improvements.” (Emphasis ours.)

Section 60-1414 provides, in part, as follows :

“ * * * When such bond is so approved and filed, no lien shall attach under this article, and if when such bond is filed liens have already been filed, such liens shall be discharged. Any person to whom there is due any sum for labor or material furnished, as stated in the proceeding section, or his assigns, may bring an action on said bond for the recovery of said indebtedness * * *.” (Emphasis ours.)

Eldridge, as general contractor, entered into a contract with one Stanley C. Dugan doing business as Dugan Excavating Company, hereafter referred to as Dugan, to perform the excavation work at the Broad-moor School Project. Dugan, subcontractor, undertook the performance of the work required by his contract and in so doing entered into an oral agreement with Shaw to furnish and supply power equipment, gas, oil and labor to operate said equipment for the performance,, of said work and appellant did, at the sole request of Dugan, furnish power equipment, oil, gas and labor to operate said power equipment in performing the work required of Dugan in the performance of his contract with Eldridge. The laborers operating said equipment were employees of Shaw and all wages paid to said employees were paid by Shaw. The charges for equipment, oil, gas and labor made by Shaw are the amounts agreed upon by Dugan and appellant. In the performance of the work, the equipment was operated by Shaw’s employees at the direction of Dugan. The excavation work that was requested and directed at the instance of Dugan in connection with the Broadmoor School Project was required under the subcontract of Dugan and Eldridge.

The contract made with Eldridge and the School District, executed on August 4th, 1958, contains the following provisions:

“Article 1. Scope of the Work. The contractor shall furnish all of the materials and perform all of the work shown on the Drawings and described in the Specifications entitled Broadmoor Junior High School, 83rd and Broadmoor, Johnson County, Kansas * *
“Article 5. Acceptance and Final Payment— * * * Before issuance of final certificate the Contractor shall submit evidence satisfactory to the Architect that all payrolls, material bills, and other indebtedness connected with the work have been paid * *

The contract was performed.

The bond in question executed August 4th, 1958, expressly incorporates the aforesaid contract and provides as follows:

“THE CONDITION OF THIS OBLIGATION IS SUCH, That whereas the said Bob Eldridge Construction Company, Inc., has entered into a written contract with the Shawnee-Mission High Schools, District No. 6, Johnson County, Kansas, for the construction of Broadmoor Junior High School, Johnson County, Kansas, according to the contract and specifications attached hereto and made a part hereof, NOW, THEREFORE, if said Bob Eldridge Construction Company, Inc., Contractor, or sub-contractor, shall pay all indebtedness incurred for supplies, materials, or labor furnished, used or consumed in connection with or in or about the construction of said public building or making such improvements, including gasoline, lubricating oils, fuel oils, greases, coal and similar items used or consumed directly in furtherance of such improvements, then this obligation shall be null and void, otherwise shall remain in full force and effect”. (Emphasis ours.)

Defendants admit that there is due and owing to Shaw for its work, performed on the Broadmoor School, the sum of $1,736.42. It is further admitted that Dugan was adjudicated bankrupt in the United States District Court for the Western District of Missouri and that the bankruptcy dividend paid on Shaw’s claim in Dugan’s bankruptcy estate has been credited on the amount owing to Shaw.

Of course, if the claim in this case comes within the coverage provided by the Statutes under the provisions of which the bond was issued, there can be no question of plaintiff’s right to recover. That proposition is not denied by defendant. Plaintiff is also entitled to recover on the bond if coverage provided therein is broad enough to embrace plaintiff’s claim based on the use of its equipment. Shannon v. Abrams, 98 Kan. 26, 157 P. 449, 452; Leidigh & Havens Lumber Company v. Bollinger (November 1964), 193 Kan. 600, 396 P.2d 320; Thompson Transport Company v. Middlestates Construction Company (December 1964), 194 Kan. 52, 59, 397 P.2d 368. The court, in the latter case, stated that the surety company’s obligation is not to pay the mere statutory liens for labor and materials but is governed by the terms of its contract.

Comparison of the pertinent language used in Sections 60-1413 and 60-1414, with that used in the bond in this case, demonstrates that the coverage given in the bond is no broader than that mentioned in the statute. The language used in the bond is identical with that used in the statute. The decision herein will, therefore, depend upon the construction which the Kansas Supreme Court has heretofore given to the language used in the statute and in the bond, particularly the words therein which we have emphasized. Presumably the parties knew the interpretation that had been given to the language by the courts and contracted with that knowledge.

Some of the decisions appear to be rather confusing and careful consideration of the facts in each case is required in order to harmonize them. Some confusion exists because of the fact that some of the decisions are based- on statutes similar to that here involved, yet different in certain respects.

The provisions of the bond are that Surety shall pay all unpaid bills for supplies, labor and materials. That provision is, primarily, for the benefit of labor and material suppliers. It gives them a claim against Surety for any such unpaid bills. No reference is made in the bond to specific items of the contract between Eldridge and the school district. It does not provide that Surety shall guarantee payment of all unpaid indebtedness incurred by the contractor in the process of completing the contract as was the case in some of the decisions, including Shannon v. Abrams, 98 Kan. 26, 157 P. 449, 450, (Syl. 4), and 452. In Thompson v. Middlestates Construction Co., supra, the court ruled on an unpaid bill for transportation of materials to the site of construction and held that plaintiff could recover therefor. But the bond sued on in that case was given under the provisions of Section 68.410 Kansas G.S.1949. That is the section covering road building contracts, and it is specifically provided therein that Sections 60-1413 and 60-1414 shall not apply to contracts made by the State Highway Commission. The statute is broader than 60-1413 and the court held that the bond given under it, in that case, bound the Surety to guarantee compliance by the contractor with the terms of the contract; that the surety on the bond is surety for the full performance of all terms of the contract. The decision is not decisive of the instant case.

In Leidigh & Havens Lumber Company v. Bollinger, supra, plaintiff sued on the bond for paint which was furnished by plaintiff to a subcontractor and consumed in the construction of the building covered by the bond given in compliance with Section 60-1413. In disposing of the case the court referred to Griffith v. Stucker, 91 Kan. 47, 136 P. 937, where it was held that the purpose of the bond is to protect laborers and material-men who made contributions to public works. The decision is authority for the proposition that one who furnished materials which are consumed in construction of a public building may collect on the bond given under Section 60-1413; and that the conditions of the bond fix the liability of the surety.

In Road Supply & Metal Company v. Bechtelheimer, 119 Kan. 560, 240 P. 846, plaintiff sought and obtained judgment for the value of steel reinforcing materials that were consumed in the construction of a public building. In another count, recovery was sought for the rental value of machinery furnished to a subcontractor and used by him in excavation and other work in the construction of a public building. Recovery on the bond was given on the count for steel used, under Section 60-1413, supra, and denied on the count for rental value, on the grounds that the value of rental equipment did not constitute supplies, labor, or materials, and was not covered by the bond given. In Union Traction Company v. Kansas Casualty & Surety Company, 112 Kan. 774, 213 P. 169, 30 A.L.R. 464, recovery for the cost of transportation of brick from the factory to construction site was denied as not being within the coverage of Section 60-1413, it not being labor or materials.

In the decided cases where suit was on a bond given in compliance with Section 60-1413, supra, and where the language of the bond did not lend itself to a broader interpretation than that of the statute, it has been held that coverage extended only to suppliers of materials and labor used and consumed in the improvement, and did not include rental on machinery and equipment. It has been said .that the statute is a quasi mechanics lien; but the language of the bond will control its application if it is fairly susceptible of a broader interpretation than that of the statute. Decisions touching bonds given to the State Highway Commission for construction of highways are not affected by the terms of Section 60-1413, supra.

Where, as here, the charge for rental equipment included labor and supplies for its operation, the above rule is not affected. If the charge for equipment, and other charges for labor and supplies are so commingled as to defy separation, as in this case, the claim on the bond will be denied. Gilbert Hunt Co. v. Parry, 59 Wash. 646, 110 P. 541.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.