author: RUARK, Presiding Judge. PER CURIAM.

text:
    R-, Plaintiff-Respondent, v. E-, Defendant-Appellant.
    No. 8142.
    Springfield Court of Appeals. Missouri.
    Jan. 30, 1963.
    Motion for Rehearing or to Modify Overruled Feb. 27, 1963.

      H. D. Green, Robert E. Hogan, West Plains, for defendant-appellant.
    Horace S. Haseltine, Edmund C. Forehand, John C. Crow, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, Warren D. Welliver, Welliver, Porter & Cleaveland, Columbia, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is a suit under Section 452.150, R.S. Mo., V.Á.M.S., brought by the mother against the father for custody of two young children. Although the pleadings are lengthy, we believe a summary will aid not only to explain the issues which were before the trial court but, also, to shorten the detailing of the voluminous evidence.

The petition (filed April 11, 1961) states: that the parties are parents of a girl child, aged three and a half years, and a boy, aged two and a third years; that the father and mother are living apart, and the father has physical possession of the children ; that plaintiff was forced to turn over physical possession of such children because of her (then) physical condition, but that she is (now) a fit and proper person to have custody, and that by reason of the tender years of said children defendant is not a fit person for such purposes; and that plaintiff has an excellent home in which to provide and care for such children.

The answer of the father charged: that in the year 1959 plaintiff became afflicted with a mental disease and was confined in various institutions for treatment; that during such period defendant had custody; that after her release from mental institutions, the plaintiff refused to rettirn to home of defendant and live with him, although he had attempted to induce her to do so, and plaintiff arbitrarily and without cause continues in such refusal; that prior to being confined for treatment, plaintiff had attempted to do great bodily harm to her children and did assault other members of the family with a knife; that by reason of these facts defendant believes plaintiff is so unstable mentally and physically that she is not a fit person to have custody of' the children for any period of time whatsoever except reasonable visitation at the home of defendant; that on May 9, 1960, plaintiff (had) instituted a suit for divorce from defendant; that such cause was tried and plaintiff’s petition was dismissed; and that the judgment in said cause bars the present action.

For reply plaintiff admitted that in the year 1959 she became afflicted with a mental disorder and was confined for treatment. During her illness the children were with defendant father a portion of the time and with plaintiff’s parents a portion of the time. She denies that after her release she refused to return home and live with defendant without cause, or that defendant wanted her to do so. When she was released from the hospital, defendant had no home, and the husband made no offer to take her home but suggested instead that she get a job and go to work in order to see if she was recovered from her illness. On numerous occasions plaintiff attempted to talk with defendant concerning their problems and their future, but the only thing defendant wanted was sex. Defendant made no offer of a home or support but only wanted plaintiff to get a job and to sleep with him. In public, and as a fraud and sham, defendant has invited her to return home, but repeatedly on occasions-when the parties arc alone and in private, defendant tells plaintiff that she is still sick and never will be well again and never will be any good to him or the children. She has never, voluntarily, lived apart, from her children. For two years defendant has refused to permit her to have temporary , custody. The divorce action was instituted, by her upon the advice of counsel for thq-purpose of obtaining custody. Throughout the marriage defendant was unable to provide her and the children with a proper livelihood but was dependent wholly or in part upon his parents and her parents. During the marriage they were forced to spend considerable time with defendant’s parents, and while they so lived they had no privacy of their own. Defendant’s parents were elderly; his father was a helpless cripple; and the home was without conveniences and was improperly kept. During the period of defendant’s custody, the children have been separated, one child being with defendant’s sister in another home. Defendant has made it a condition of accepting plaintiff as his wife that she give up her desire for a college education. Defendant has refused to permit her to have custody of her children except when a member of his family is present. Her physician informs her the cause of her illness was the defendant’s treatment of her and she has lost all respect for defendant and could not go back to him as his wife. She has a proper home for the children. She is a student; her schedule can be arranged so that she is absent from home only a few hours; and she is in a position to place the children in a nursery-kindergarten school during this time.

On trial of the issues thus raised (and on March 20, 1962), the court found, among other things, it is obvious from the evidence that the defendant will not accept •the plaintiff back into his life and into the lives of the children without reservation, and the evidence demonstrates that the plaintiff is mentally sound and well. Custody was adjudged in the mother except for the month of July of each year and there was provision for visitation. From this judgment the father has appealed.

The court which heard the divorce case in November 1960 did not adjudge the custody of the children. We think that proceeding is not res judicata as to the questions involved in this case. Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458, 461; 224 Mo.App. 1107, 34 S.W.2d 712; Roberts v. Roberts, Mo.App., 292 S.W.2d 596; see S v. G, Mo.App., 298 S.W.2d 67, 75, 76.

The primary issue in this case is, of course, the welfare and well-being of the children. The matters principally in dispute are: (a) whether the mother has recovered from her illness and is mentally capable of caring for her children; (b) whether the mother has unreasonably and unwarrantedly refused to return to the home and whether she has really deserted her children; and, if these two questions are answered favorably to the mother, then, (c) considering all the circumstances, the surroundings, the homes in which the children will live and the persons who will be associated with them, with which parent will their welfare be best promoted. All parties bear good reputations and no question of social misconduct is involved.

As to history: Plaintiff mother and defendant father came originally from farms in South Missouri, not, however in the same immediate neighborhood. They were married in the latter part of 1955. At the time this case was tried (March 19, 19Ó2), the father was twenty-six years old, the mother twenty-four. They first went to live with the defendant husband’s parents. Both were ambitious; both desired a college education; both had a small amount of money; so they moved to a nearby city and enrolled in college. In March the money ran out, and this time the couple moved to the (vacant) farm home of the wife’s parents. (These parents had in the meantime moved to the city.) The wife’s father began supervising large construction jobs. The husband got a job under him, and so plaintiff and defendant eventually moved back to the city. From there on for several years it was a matter of frequently moving back and forth, and between farming and construction employment, with some schooling in between. The husband, however, retained, or at least attempted to retain, an interest in the farming on his parents’ farm. In 1958 the husband got interested in timber-cutting and since then has worked at that, interspersed with farming.

At some time in 1956, the plaintiff wife had a miscarriage. Thereafter were born a girl child (age four at time of trial) and a boy (age three at time of trial).

In April 1959, a few months after the birth of the last child, while the parties were then living in the city and the father was working on a construction project, the mother began to experience periods of depression and anxiety. The condition worsened until she was placed in a hospital, where she was treated for two weeks. Then she was an out-patient for six to eight weeks. The trouble recurred, and in May she was back in the hospital for a few days. Then she was taken to a neurological hospital for three weeks and was dismissed and brought back to the original hospital for a few days. The husband commenced a proceeding to have her confined in the state hospital, but that proceeding was dismissed and the couple and their children moved back to the farm home of the husband’s parents. This was about July 1, 1959.

As to conditions at this farm home, her testimony is the husband’s father was incapacitated. There was no water in the house and no facilities for bathing. The food and the dishes were dirty. There was no privacy. The bed of her and her husband and that of his father and mother were close together and her husband was callous to this. She said he never once told her he loved her and was indifferent to her wishes and sensitivities.

About September 14, 1959, occurred what might be referred to as the gas-knife incident. The wife became deranged. There is no use rehashing the details of this incident. Plaintiff mother agrees she was deranged. Her conduct could, we suppose, be interpreted as suicidal, or dangerous to others, according to the viewpoint or prejudice of those concerned. We do not find any evidence of intent or attempt to harm her children as charged in the answer. They appear to have been outdoors at the time of the incident. Plaintiff was subdued by the husband’s sister. The next day, September 15, 1959, plaintiff was admitted to a private hospital in North Missouri for treatment.

We pause here to report that somewhere along the line the defendant husband and the parents of the plaintiff wife “fell out.” There is conflict in the testimony as to whether the disagreement first arose over the method of treatment which should be given, or as to the hospital to which she should be sent. The husband says he made application to have his wife sent to a state hospital because he had obligated himself for the other hospitalization and treatments. So defendant states, the plaintiff wife’s father had discharged him from employment, and he had no money to secure private hospitalization. Whatever the cause or reason for the disagreement, we are sure that all parties acted with the best of intentions; and possibly, if the events were to occur again, a different atmosphere would prevail. The upshot of the arrangement was that plaintiff wife was taken to the private hospital in North Missouri, and from there on plaintiff’s parents assumed and paid the expense of her treatment-They have supported her since. The defendant husband remained at the farm home of his parents with the children.

Plaintiff remained at the hospital until' January 17, 1960, at which time she was discharged under the arrangement she would', return periodically for check-up and examination. She had a married brother who-lived in a college town not too far distant,, and she went to him but returned periodically for check-ups during the year she was discharged. During this interval her brother took her for a trip to New Orleans. She also went to visit another brother in Washington, D. C. In May 1960 she decided to enroll in college, complete her education, and qualify for employment in social work. Her brother in the meantime-had purchased an “automatic” apartment building, and she took charge of it as manager. Her duties are to interview tenants (leases are on a yearly basis), collect rents, keep a check on installations, call a repair man if something goes wrong, and to keep the hallways and entrance clean. In return for this she receives her apartment rent free. She is now living in this apartment building and taking classes required for her degree. Her credits are such that, with continued schooling, she will graduate in the spring of 1963.

In May 1960 she filed suit for divorce on the ground of “indignities.” On trial of that case her petition was dismissed.

After the plaintiff got her apartment, she began to prepare to have the children with her. She purchased a bed for the older child and a crib for the baby (now too old to use it). She has been baby sitting without pay for various people so that she may be around young children. She bought and made clothing which she sent to her children. After her divorce was dismissed, she commenced visiting the children in South Missouri at intervals. These visits were accomplished by the husband’s taking the children to a neighbor’s home where she would see them for several hours. The husband was always present. It is admitted that she was never permitted to have the children alone. On trial of this case, he testified that the only time she is welcome to see the children is “as long as I can observe, so that she does not get a chance to take them.” “They told me before that she was cured — and I will release them when she is zvell.” The mother of the husband testified: “Q. Are you willing for her to come back there and make a home to live — if she wants to — if her and her husband can get along? A. Yes, if she was to get well and everything like that, it would be.”

As to whether the plaintiff mother has recovered from her illness, plaintiff produced three physicians, specialists in that field of medicine, who testified that she is well and capable of caring for her children. One physician, a member of the clinic at which she was first treated, who certified her as mentally ill in 1959, examined her in October 1960 in reference to the divorce action, and again in February 1962 prior to trial of this case. He stated that at the time of the 1960 examination there was no evidence of psychosis. Her improvement had been “remarkable”; at that time she had a residue of “over-control,” a reluctance concerning involvements with members of the opposite sex which was the natural result of an unsatisfactory experience with her husband; but she was competent to take care of her children. He examined her again in February 1962 and found that she demonstrated no evidence of mental illness. Based on his study of the plaintiff over a three-year period, he believes that she is normal with good resources in both intellectual and emotional spheres and no evidence of psychosis. Chances for recurrence of the illness are no greater in her than in any normal person, and she is competent to care for her two small children.

The head of the hospital in' North Missouri in which plaintiff was treated testified plaintiff was discharged from the hospital January 17, 1960 as “recovered, prognosis fair.” After her discharge he first saw her every two weeks, then every month or so. During the second year her visits were more social and certainly not for therapeutic treatments. The prognosis was changed to “prognosis good.” He is of the opinion that she is fully capable of caring for her children and carrying a full college course. He was familiar with her emotional experiences concerning difficulties with her husband and court proceedings in which the custody of the children was involved, and he feels she is working her life out constructively and reliably. At the time of her discharge from the hospital he worked with her and the defendant husband in trying to iron out their marital problems. The husband questioned whether anyone ever recovered from a mental illness. The doctor says that she was looking forward to going home with her husband and children during this period, but the husband questioned her ability to return home. “I don’t think we can directly refer to it as a precipitating factor in her illness, but after the illness started, he undoubtedly had those feelings to himself and questioned whether she could take her rightful place as a mother and a wife.”

Another physician is director of the student health service, in charge of a staff of physicians including clinical psychologists and a consulting psychiatrist. He has had twenty-six years’ experience in evaluating emotional and psychological problems in patients. His duties involve care and overseeing of the mental and physical health of the students. He also teaches psychology to Ph.D. candidates. When plaintiff mother enrolled at her present school, she reported her previous hospitalization; and as a result of that she was called in for an interview. Reports were also received from places where she had been in her previous illness. When he interviewed her, he saw no evidence of psychotic illness. He saw no need to assign her to the student health clinic. He saw her eleven times after that, not, however, because she needed therapy or treatment but usually because of her need for excuses from classes to see a lawyer or attend court. He has no fear of recurrence of her illness and thinks she is capable of rearing her children. She has been able to handle stresses well and still do superior work in school. She maintains a grade average of 3.45 (4.00 is the highest attainable). She is on the Dean’s Honor List (average required is 2.75). She is in the top ten per cent of her class. She takes no drugs or tranquilizers.

Running through the testimony of each of these physicians we think we detect a note of admiration for the ex-patient and student, a strong belief in her courage, and a feeling that she is highly capable of rearing her children. There was no medical opinion to the contrary.

Did the plaintiff abandon the children or willfully and without cause refuse to return home? The facts are that she did not return to the home of defendant husband and his parents after her discharge from the hospital on January 17, 1960, and she did not go into the neighborhood in South Missouri to visit their children until December 26, 1960, after the trial of the divorce case and dismissal of her petition. She testified that when she was discharged from the hospital her husband came up to see her but did not offer to take her home. “ * * * he told me that his family was afraid of me, and that he was afraid of me, and that the Doctors did not really know whether I was well — you know — I could1 not prove it. — I might be well a month or so and I would be sick again, * * * ” Previous to that he had said to her, “ ‘why don’t you get a job?’ and he even said, ‘why don’t you get another man ?’ ” “The only thing he tried to get me to do, was to go to a motel — there wasn’t any home. No, he told me at that time that he had so many of my debts, that he could not — we talked for a long time- — that we could not afford to pull for the whole family — not right now — .” “What I remember best was that he was very interested in getting me to a motel.”

She stated that after that she made no attempt to see the children. She admitted she had told the judge (in the divorce trial) she made no attempt to see the children “until I had proven to all that I was better —and to myself. This is a hard thing— to come out of a hospital — a mental hospital.” Defendant husband denies her testimony. He said he did not tell her he did not want her to come home; that he asked her to and offered to> take her home, and that she answered that the life of a farmer’s wife did not fit her; that she was afraid she might get sick again; that her folks had told her that if she came hack they would not come to her rescue; and, for another reason, she wanted to get well' before she made a final decision, before she ■ resumed care of the children. Later, “Q. And didn’t you tell Judge * * * in this courtroom that the only condition you would see those children out of your sight was if she would quit the (school) and give up her college education? * * * A. I told Judge * * * just during the summer months, that if she would quit her college and become acquainted with these kids that she had not seen but a few times — get adjusted — give her a chance to get adjusted to the children and the children to her, I would let her have them — and she would not quit school.”

As to a place of abode for the children, plaintiff has an apartment, plan and pictures of which were offered in evidence. It has all the modern conveniences, including washing and drying facilities, and would appear to be suitable. As stated, in return for rent, she manages the apartment building. Her brother stated there is no reason she couldn’t continue in this arrangement. The managerial duties are not scheduled for any certain time. He estimated that the total time required would be possibly forty hours per month. The apartment is about ten minutes’ walk from the campus. At time of trial, she had classes which took three hours on Monday, Wednesday, and Friday and four hours on Tuesday and Thursday. She can schedule her classes all to be taken in the morning. She accomplishes her studying between eight and twelve at night. She investigated kinder- ' garten and nursery school and they are available to her during the hours she spends in class. It being a college town, baby sitters are freely available. Her sister-in-law, who is a housewife, says, "We’re like sisters,” and testifies that she will help in this respect if needed.

As to finances, she is now supported by her parents, who say they are willing to help her out for so long as necessary. Both of her brothers have committed themselves to help her financially when and to the extent it is necessary. The members of her family appear to be financially able to comply with these commitments.

As to the ability of the defendant father to care for the children, he lives with his mother, his father having died while these troubles were going on. The farm belonged to the father. Now it apparently belongs to the mother and five or six brothers and sisters. Defendant is farming it and has some cows and machinery. They are mortgaged for about what they are worth, but defendant gets half of a milk check (proceeds from sale of milk) twice per month. He says that some of his financial difficulty is due to the fact that he has been paying off the original (not the final) expenses of his wife’s illness. He appears to be energetic and willing to work and does not dissipate. Financially he does not seem to be any more secure than the plaintiff wife, although he is probably assured of a home for at least so long as his mother lives.

As to the husband’s abode, it is a modest six-room farmhouse. According to the neighbors it is simple but not uncomfortable, and is clean and well kept. Up to the time of trial it had no running water or bathroom facilities, but those conveniences were in the process of being (and probably now are) installed. The children are necessarily under the immediate supervision of the grandmother, but the father helps with them when possible.

The mother complained that in her visits to the children she found them with clean outer clothes but dirty underclothes and that when she took them on her lap they smelled bad; that it is necessary for her each time to trim and clean their fingernails; that the boy at age three was still on the bottle and that he used the floor or any place to go to the toilet. She said when the children were taken to eat the husband objected to her having them wash their hands. All of the husband’s evidence is that the children are healthy, happy, and intelligent. The children have a large yard to play in.

During the period commencing when plaintiff went to the hospital and up to the time the divorce suit was heard, the two children were separated. The hoy remained at the farm home with the grandmother, and the girl was kept by the husband’s sister, who lived in the nearest town. Evidently the separation was discontinued and the children were reunited in the present house after some admonition or cautioning remarks of the trial judge who heard the divorce case. The mother of the defendant father is sixty-one years old, and it is conceded that she is an upright woman of unquestioned good character.

In determining this case the final responsibility is ours; but, although the findings of the trial court do not bind us, we regard them with considerable deference. The written words in a cold record do not always convey the whole sense of meaning, depth, value, spontaneity, and sincerity as do the spoken words, with the gestures and manner accompanying them, in the sight and hearing of an experienced trial judge. Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118, 1120.

Concerning the question of whether the mother has recovered from her illness, there seems to be little question that she has. The doctors are unanimous in their opinions. The only persons who seem to doubt it now are the husband and his mother.

Concerning the question of whether the mother abandoned the children or un-warrantedly refused to return home, we think the evidence amply justifies the conclusion that her refusal, if it was a refusal, to return home was not unjustified but was the act of a person of strong resolve and good balance. She had just been discharged from a “mental” hospital. She had to get her feet on the ground and “prove” that she was capable in the face of rejection (her testimony) or suspicion (to be gathered from the husband’s evidence). The fact that she was willing to stay away from her children until she was certain is only the evidence of a mother’s-willingness to sacrifice for her children’s-sake, even as the desperate mother before King Solomon. We think the trial court’s finding that the husband is unwilling to accept her into his life and the lives of the children is entirely justified by the evidence. Undoubtedly the attitude of the defendant and his family toward the plaintiff will have-its effect upon the children. Love, respect, and frequent association of the child with both parents are desirable; and conduct of one or the other, even though unconscious or unintentional, which tends to inspire fear, disrespect, hatred, shame, or contempt of the child for one of the parents is to be avoided in so far as possible. S v. G, Mo. App., 298 S.W.2d 67, and cases cited at 77.

As to choice of place of abode, it is true that the mother has a place where care of the children will be more convenient and probably more clean; but there are offsetting advantages in favor of a working farm home, even a very simple one: a yard to play in, fresh air, fireflies in the evening, the sound of the woodpecker in the morning, the bees alit on clover blooms, the changing of the seasons, all the interlocking forces of nature to be learned, and, occasionally, the chance to be alone. Even the so-called “hardships” of a simple farm life may have their part in the development of fortitude, self-reliance, and individuality. We would not agree to the removal of the children from their present surroundings, where they appear to be healthy and happy, merely because other surroundings may be more modern, convenient, or affluent. Irvine v. Aust, Mo.App., 193 S.W.2d 336(5). The affluence of one person or the limited means of another is not the primary factor to be considered in the award of custody. Edwards v. Engledorf, Mo.App., 192 S.W.2d 31; Morris v. McGregor, Mo.App., 269 S.W.2d 171; Ex parte Archer, Mo.App., 253 S.W. 1095, 1096.

We think the deciding factor m this case is that, on the one hand, the children will be under the direct supervision and care of their mother; and, on the other hand, the hour-to-hour supervision and training of the children will, of necessity, be left in the grandmother, now in her sixties. “All else being equal,” the law prefers the mother when the custody of the very young is involved. Much has been written on this subject by the courts; but it is not necessary to support the rule by sentimentality or by Judaeo-Christian cultural tradition. In so far as mammalian life is concerned, nature decrees it. In the scheme of things it is usually the role of the mother to nurture, care for, and train the very young. The father’s has been to procure the food and to fight off enemies and predators. Yet in raw nature it is usually the mother who, at the entrance to the den, casts her own life into the balance in the last desperate struggle for survival of her young. Infants need their mother. The mother, by reason of her age, if nothing else, is in most instances better qualified to rear small children than the grandmother. We think this conclusion is established by the rules of our Creator which set a fairly arbitrary age deadline on the bearing of children.

The judgment is affirmed.

STONE, J., concurs.

On Motion for Rehearing

PER CURIAM.

Now on this day it is ordered that the judgment of the circuit court be modified to the extent and only to the extent that the payment of support for the children in the sum of $100 per month as adjudged by the circuit court shall commence as of March 1, 1963 instead of August 3, 1962 as is provided in said judgment; but that in all other things said judgment is affirmed. Appellant’s alternative motion for rehearing or to modify is overruled and costs are taxed against the appellant.

      . § 510.310. R.S.Mo., V.A.M.S.; I v. B, Mo.App., 305 S.W.2d 713(8); C v. B, Mo.App., 358 S.W.2d 454(4); Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364(6).

      . Abel v. Ingram, 223 Mo.App. 1087, 24 S.W.2d 1048, 1050; Armstrong v. Armstrong, Mo.App., 185 S.W.2d 845(4); Ellis v. Johnson, 218 Mo.App. 272, 260 S.W. 1010, 1012; Tomlinson v. French Institute of Notre Dame DeSion, 232 Mo.App. 597, 109 S.W.2d 73(5).


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    Robert M. EBERTING, Plaintiff-Appellant, v. Lois SKINNER, Defendant-Respondent.
    No. 8152.
    Springfield Court of Appeals. Missouri.
    Feb. 11, 1963.

      Kelso Journey, Clinton, for plaintiff-appellant.
    William J. Cason, Clinton, for defendant-respondent.
   RUARK, Presiding Judge.

This is a suit for damages growing out of an automobile accident brought by Robert Eberting, appellant, against Lois Skinner, respondent. The appeal is from the order sustaining defendant’s motion for summary judgment. The facts as they appear from those admitted in appellant’s pleadings, defendant’s unanswered request for admissions, and (principally) the deposition of the plaintiff, are as follows: On April 7, 1956, a collision occurred between automobiles driven by Eberting and Skinner. Eberting, an ex-sheriff, ex-deputy sheriff, and then Director of the Grain and Warehouse Division of the State of Missouri, was driving a state-owned car. He carried no personal liability insurance. As a consequence he became subject to the provisions of the Safety Responsibility Law (§ 303.060 RSMo, V.A.M.S., Laws 1953, p. 569, Laws 1957, p. 634) under which he was required to deposit security for the payment of any judgment which might be rendered for damages arising out of such accident and recovered in an action at law begun not later than one year after the date of such accident, or suffer suspension of his license and registration unless [§ 303.070(4)] “* * * there shall be filed with the director evidence satisfactory to him that the person who would otherwise be required to file security has been released from liability or been finally adjudicated not to be liable, or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments, with respect to all claims for injuries or damages resulting from the accident.” See also § 303.140.

Eberting obtained a printed form from the Safety Responsibility Unit at Jefferson City, “ — on account of my license was about to be revoked because it had not been sent in.” He took that release and sent it to the M.F.A. office at Springfield. “They, in turn, got Mrs. Skinner’s * * * signature on it.” Then he took it to Jefferson City “personally.” This “release” was as follows :

“DEPARTMENT OF REVENUE STATE OF MISSOURI'
Jefferson City
SAFETY RESPONSIBILITY LAW RELEASE
Case No.- — -
Accident Date--
Accident Location -
TO - SAFETY RESPONSIBILITY UNIT
P. O. Box 506
Jefferson City, Missouri
The undersigned hereby certifies that fee-she is of the age of 21 years or over and that fee-she has released
_Robert M. Eberting_
(fill in name and address of person released)
from all claims and causes of action of the undersigned arising from the above described accident, and authorized the Safety Responsibility Unit to accept this certificate as satisfactory evidence of such release from liability as required by the Safety Responsibility Law (Section 303.070(4) and 303.140(3), L.1953, H. B. 19).
Date_ /s/ Lois Skinner_
(Signature of person giving release)
Rte # 5 Bolivar Mo._
(Address of person giving release)
NOTE-The person giving the release must be the injured person or the owner of the damaged property.
STATE OF MISSOURI } COUNTY OF GREENE} SS
On this 23rd day of May, 1956, Lois Skinner personally appeared
(Person giving release)
before me and acknowledged that the foregoing release was executed by ⅛⅛⅜ her
/s/ Stanly Likins_
NOTARY PUBLIC
My commission expires 6-28-59_
This form when properly filled out, signed and acknowledged, will be accepted by the Safety Responsibility Unit as satisfactory evidence of a release from liability under the Safety Responsibility Law, either prior to requirement of security or suspension, or for refund of security of termination of suspension if filed after deposit of security or effective date of suspension.
Form SR-15 Z-244”

The blanks in the upper right-hand corner in reference to case number, accident date, and accident location were filled in by Mr. Eberting. When he delivered this document to the Safety Responsibility Unit, he was informed that it would be necessary that he procure a release from Mrs. Skinner’s husband. “ * * * I got a notice from Mr. Cass stating my driver’s license would be revoked on such and such a day if I didn’t have a release from Mr. Skinner. I drove to Mrs. Skinner’s home about 11:00 o’clock one night and just told her the situation, that they both had to send in a release, and I would like for them to do it. Her husband was out of the state at the time on a trucking mission, he was a truck driver. I asked her if she would take the release, have her husband sign it and send it to Mr. Cass, the Commissioner, at Jeff City, which she did.” “Q. * * * So, if I have it correct — if I haven’t you set me right — the end result was two releases from the Skinners, at your request or direction, got to Jefferson City, one of them signed by Lois Skinner and the other by her husband, whatever his name was- — Gene Skinner, is that correct ? A. That’s correct.” The second instrument was in the same form as the first one. He said he had no conversation with Mrs. Skinner about a lawsuit and that his purpose in getting the release was to keep his driver’s license and the right to operate a motor vehicle. “As I understand it, it was a release which took the place of a bond down at the Commissioner’s office.” “Q. But the release did undertake to release you from any liability to Mrs. Skinner on account of the accident, did it not? A. That’s right.”

On a date not shown Eberting gave to the Skinners’ insurer a release as follows:

“RELEASE
For the Sole Consideration of Five Hundred Thirty three and 40/100 ($533.40) Dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby releases and forever discharges Gene & Lois Mae Skinner their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable, none of whom admit any liability to the undersigned, but all expressly deny any liability from any and all claims, demands, damages, actions, causes of action, or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person or property, which have resulted or may, in the future, develop from an accident which occurred on or about the 7 day of April , 1956, at or near Highway 13; 8 mi South of Bolivar, Mo._
Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned.
In Witness Whereof, I have hereunto set my hand and seal_this
day of_, 1956.
/s/ Robert M. Eberting_ (Seal)
Director of Grain & Warehouse (Seal) Div. K. C. Mo.
In the Presence of:
/s/ R. P. Docman
/s/ Kathy Hinkle
(9-50-3M)”

Four hundred eighty-three dollars of this amount was paid directly to the garage which repaired the car Eberting had been driving at the time of the collision. Fifty dollars of the amount was “for the use of my personal car while the car was being repaired.” “They paid the repair of the car and also $50.00 for the use of my car while the car was, State car was being repaired.” The fifty dollars went to Ebert-ing’s personal use. On June 12, 1956, a draft in the amount of fifty dollars was issued to Robert M. Eberting, Director of Grain and Warehouse Division, “IN FULL PAYMENT OF all claims arising out of the (accident?).” “Insured — Gene & Lois Mae Skinner”; “Date of loss- — 4-7-56.” • On the back of this draft was printed a release in full of all claims against all parties. Eberting signed or endorsed this check below such printed release but stated in his deposition that he didn’t read the back of the draft.

The question which the parties present is whether or not, as a matter of law, the plaintiff-appellant has released the respondent. Appellant makes two points: I. That the “Safety Responsibility Release” was not a release but a mere statement of the defendant exonerating the plaintiff from all responsibility for the collision in question; and, II. The trial court erred in finding an accord and satisfaction.

A general idea of one of the principles involved (though the factual statement does not correspond) may be gathered from the first paragraph of 32 A.L.R.2d 937, Anno., as follows:

“Where one of the parties to an accident is charged with liability by the other, and settles or compromises the claim by making a payment and taking a release, it may plausibly be argued that he should not thereafter be permitted to bring an action on the theory that the other party was negligent and is therefore liable, since the previous settlement may be regarded as an admission of negligence on his own part.

Other statements which illustrate the rule are:

“ * * * We consider the better rule to be that the making of the original settlement without any express reservation of rights by the settlor constitutes a complete accord and satisfaction of all claims of the immediate parties to the settlement arising out of the same accident.” Wm. H. Heinemann Creameries v. Milwaukee Auto. Ins. Co., 270 Wis. 443, 72 N.W.2d 102, at 103.
“It is logically and factually impossible to reconcile a valid claim by Kel-leher with a valid claim by Lozzi. As Kelleher by her act acknowledged a valid claim by Lozzi and effected a settlement on that basis, we are brought to the conclusion that she estopped herself from taking the opposite position; * * * ” Kelleher v. Lozzi, 7 N.J. 17, 80 A.2d 196 at 199.
“ * * * This release of the plaintiffs by Jackson from all claims by him growing out of the collision and the payment of the $275 by the plaintiffs constituted a settlement of all claims between the parties growing out of the collision, the plaintiffs’ claims against Jackson as well as Jackson’s claims against the plaintiffs, * * *. Therefore, if Jackson was released from all liability growing out of the collision by virtue of the release and settlement, the defendants were necessarily released. * * *” Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860 at 862.

See also the general review of this subject contained in Mensing v. Sturgeon, 250 Iowa 918, 97 N.W.2d 145.

In England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, it was held that the release of a cause of action, without taking into consideration the counterclaim, estopped the releasee from proceeding with its claim on the counterclaim. The England case was recognized with approval and in fact quoted from by the Supreme Court in Max v. Spaeth, 349 S.W.2d 1, 4. It is also cited by the Supreme Court and the general principle was recognized in Faught v. Washam, 329 S.W.2d 588.

As to whether the two papers filed with the Safety Responsibility Unit were releases, the plaintiff himself so considered them and in his testimony frequently referred to them as such. They contain the statement that the defendant has released him from all liability in respect to the collision. If a release actually had not been effected, then he was engaged in practicing a fraud upon the state. And can there be doubt that, had Mrs. Skinner chose to bring action against him for damages, he would have pleaded such instruments as a defense? For all practical purposes they were releases. However we think that the content of the instruments is not the most important thing. The whole transaction and the circumstances surrounding the affair must be taken into account. It is not essential that an express written instrument be used in order to accomplish an accord and satisfaction. It may be implied from the circumstances indicating the intention of the parties. 1 Am.Jur.2d, Accord and Satisfaction, § 2, p. 303; Hunt on Accord and Satisfaction, § 15, § 18; Brent v. Westerman, (W.D.Mo.), 123 F.Supp. 835(3). There must of course be a meeting of the minds, and an intention to settle. But while the matter of accord and satisfaction is ordinarily a question of intention, where the evidence is such as to admit of only one conclusion, the trial court is justified in determining it as a matter of law. The law will imply the intention from the acts of the parties. 1 Am.Jur.2d, Accord and Satisfaction, § 11, p. 309, et seq.; 1 C.J.S. Accord and Satisfaction § 49, p. 567. Appellant argues that an accord and satisfaction, being a contract, requires a consideration, and this, as a general statement, is true. But ordinarily the courts are not concerned with the amount or quality of the consideration, 1 Am.Jur.2d, Accord and Satisfaction, § 13, p. 311; Duncan v. Black, Mo.App., 324 S.W.2d 483, and the consideration may consist of forbearance or some detriment suffered. 75 C.J.S. Release §§ 12, 16, pp. 635, 637. There was consideration moving from the releasor to the releasee in that she was giving up her right of action against the releasee; or if it be argued that she had not released Eberting, she at least changed her position to her detriment; for, since he had no liability insurance, it would have been to her advantage to have on deposit security available to pay any judgment which she might obtain. She had the right to institute an action immediately and this very act would have impounded the security until the action was terminated. This giving up and forbearance on her part was a benefit to the appellant. On the other hand, this “giving up” on her part also accomplished a benefit going from the appellant unto her. Had she refused to release him from the obligation (imposed by law) to deposit security, there could have been an inducement on the part of Eberting to bring action against her at once in order to get the question of liability settled. Presumably it was to her benefit that such action should not be taken and that the matter be settled. The law favors compromises and settlements.

In situations of this kind the courts have frequently applied the principles of equitable estoppel. Thus, in the England case, supra, 240 Mo.App. 968, 225 S.W.2d 366, the court held the releasee was es-topped by the conduct and actions of the parties under the circumstances shown. The principles of estoppel were applied (although the word “estoppel” is not always used) in the majority of the foreign cases cited herein. In this instance the appellant, for his own benefit, induced the respondent to change her position to her detriment. Following the idea first presented in 1857 (see Kelleher v. Lozzi, 7 N.J. 17, 80 A.2d 196, 199), he cannot now take the shield which she has handed him and use it as a sword against her.

The judgment is affirmed.

STONE, J., concurs.

      . Other eases which by implication at least accept or recognize one or more facets of the principle are: Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001; Burnham v. Williams, 198 Mo.App. 18, 194 S.W. 751, 752; Klotz v. Lee, 36 N.J. Super. 6, 114 A.2d 746, 748; Graves Truck Line v. Home Oil Co., 181 Kan. 507, 312 P.2d 1079, 1081; Foremost Dairies v. Campbell Coal Co., Ga.App., 196 S.E. 279; U. S. A. C. Transport v. Corley (5th Cir.), 202 E.2d 8; Fikes v. Johnson, 220 Ark. 448, 248 S.W.2d 362; Tompkins Motor Lines v. Georgia Broilers, (5th Cir.), 260 F.2d 830.

      . State ex rel. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193; Dobbins v. City Bond & Mortgage Co., Mo.App., 116 S.W.2d 200, aff. 343 Mo. 1001, 124 S.W.2d 1111; Shofler v. Jordan, Mo.App., 284 S.W.2d 612.

      . 1 C.J.S. Accord and Satisfaction § 6, p. 477; 15 C.J.S. Compromise and Settlement § 25, p. 744; Aldridge v. Shelton’s Estate, Mo.App., 86 S.W.2d 395, 399; Bohle v. Sternfels, Mo., 261 S.W.2d 936.

      . Corbin on Contracts, § 1278; 76 C.J.S. Release § 10, p. 633; Green v. Baum, Mo.App., 132 S.W.2d 655.


author: GRISSOM, Chief Justice.

text:
    HOWSLEY & JACOBS et al., Appellants, v. Mrs. W. S. KENDALL et al., Appellees.
    No. 3738.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 8, 1963.
    Rehearing Denied March 1, 1963.

      McMahon, Smart, Sprain, Wilson & Camp, Abilene, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellants.
    W. B. Wright, Cisco, Scarborough, Black & Tarpley, Abilene, for appellees.
   GRISSOM, Chief Justice.

Mr. W. S. Kendall, Sr., was an electrician with a place of business in Cisco. Mr. Andrew Howsley and Mr. Charles Jacobs resided in Albany. Jacobs was Howsley’s son-in-law. They lived across the street from each other. They operated as partners under the name of “Howsley & Jacobs.” On March 7, 1961, there was in the employment of the partnership a negro by the name of Robert Myers who was then 24 years of age. He had worked for the Howsleys since he was 8. When Jacobs married the Howsley’s daughter, Howsley and Jacobs formed the partnership and employed Robert. He took care of the yards and worked around the houses of both partners, cleaned up around oil leases and did whatever either partner told him to do. For such services Robert was paid by the partnership and taxes were withheld and paid accordingly by the partnership. Mr. Kendall was employed to remove two air compressors from the basement of the Howsley home and take them to his place of business in Cisco, where he was to examine them and ascertain whether they could be repaired. They were heavy and it was agreed by Mr. Kendall and Mr. Howsley that Robert would be present and help remove the compressors from the basement and put them in Mr. Kendall’s truck. For this purpose Howsley instructed Robert to be present when Kendall came for the compressors and instructed Robert to do what Kendall told him to do. Kendall and Robert went into the basement and did the preliminary work requisite to removing the compressors and then carried them out of the basement and put them in Kendall’s truck. In removing the compressors oil leaked on the basement floor. What happened thereafter is in dispute.

Plaintiffs’ witnesses testified in effect that Kendall had completed his work at the Howsleys but that he went back to the basement to see if he had left any tools; that, without his knowledge, Robert had cleaned the floor with gasoline near pilot lights burning under a water heater and an air conditioner and when Kendall returned to the basement there was an explosion. He was terribly burned and died about two days later. Defendants contend and their evidence was to the effect that Robert, under Kendall’s instructions or acting with him, cleaned the floor with' gasoline and as Robert was leaving the basement to get a hose to wash out the gasoline fumes the explosion occurred.

The suit was brought by Mr. Kendall’s widow and son, W. S. Kendall, Jr., against said partnership and partners. Based on a jury verdict, judgment was rendered for the plaintiffs against the defendants for $50,000.00. All defendants have appealed. One brief is presented by the partnership and Jacobs. Another brief is presented by Howsley.

The jury found that (1) Robert washed the floor with gasoline near the burning pilots without warning Kendall and that this was negligence and a proximate cause of Kendall’s death; that (4) Robert used gasoline to clean the floor without warning Kendall that he was going to do so and that this was negligence and a proximate cause thereof; that (7) Robert was not then an employee of Kendall; that (9) Robert was then the employee of Howsley & Jacobs; that (10) on the occasion in question Robert was acting in the course of his employment for Howsley & Jacobs; that (10a) on that occasion Robert was not an employee of Kendall; that (11) Kendall did not instruct Robert to use gasoline to clean the floor; that (14) Kendall had not cleaned the floor "with gasoline; that (17) Robert and Kendall ■did not clean the floor with gasoline; that ‘(20) Kendall’s failure to cut off the lighted pilots was not negligence and that (22) Kendall did not remain in the basement after he was warned of the presence of gasoline fumes.

Under the first seven points presented in the brief of the partnership and Jacobs it is contended that the court erred in refusing to hold, as a matter of law, that Robert was not acting in the course of his employment for the partnership; in refusing to hold that under the undisputed evidence Robert was acting for Kendall; in refusing to grant the partnership and Jacobs a new trial because Robert, as a matter of law, was not acting in the course of his employment for said partnership, or for Jacobs and that, as a matter of law, Robert was acting in the course of his employment as the loaned employee of Kendall and because, as a matter of law, Robert was not acting as an employee of Jacobs. The only evidence as to the business of the partnership came from Mr. Howsley who testified that he was in the oil, ranch and farming business. He was then asked whether he operated in the oil business as an individual or as a partnership and he answered, “in a partnership.” He testified that Robert was employed by the partnership and carried on its payroll and paid by the partnership; that Robert worked as a domestic servant, yard man and chauffeur and cleaned up oil leases; that the partnership withheld taxes from Robert’s pay and that Robert did whatever he or Jacobs told him to do; that Kendall was supposed to get the compressors out of the basement and take them to Cisco to repair them.

With reference to what he was told about the fire Mr. Howsley testified: “And Mr. Kendall said: ‘We’ve got to clean this thing up, and what have you got to clean it up with’, and Robert said he had some gasoline out there and Mr. Kendall told him to get it and bring it down there and they would clean it up, and they were cleaning it up so he told me and Robert said the fumes got so bad that he told Mr. Kendall: Tm going to go get the hose and wash this thing out’, wash the gasoline off the floor there, and he left and just as he got to the top of the stairway this explosion happened and he said blew him out into the yard.” He testified that Mr. Kendall told him “I didn’t use my head. Just wasn’t thinking.”

Robert Myers testified that he worked for the partnership of Howsley & Jacobs; that he worked around the Howsley and Jacobs’ homes; that he did whatever he was told to do. He testified that on the morning before the fire on the afternoon of April 7th, that Mr. Howsley, in connection with telling him to be there when Mr. Kendall came for the compressors, instructed him to do whatever Mr. Kendall told him to do, and that he did what Mr. Kendall told him to do ; that Mr. Kendall told him what to do about disconnecting the compressors and carrying them and putting them in Kendall’s truck. He testified that after they had put the compressors in Kendall’s truck, Mr. Kendall told him that they had to go back to the basement and wipe up the oil they had spilled on the floor; that they returned to the basement and used rags to wipe oil from the floor; that Mr. Kendall said the rags were not taking the oil off the floor and asked Robert if he had any gas and Robert told him he had some that he used in the lawn mower and he could get that and Kendall said, “Okey.” Robert testified that he then got the gasoline and when he came back to the basement with1 the gasoline Kendall said to put some gasoline on the rags and wipe the oil off the floor and Robert did. Robert testified that at first he poured gasoline on the rags hut that Kendall then poured gasoline on the floor, saying that it was-n’t cutting the oil. Robert testified that the fumes were so bad he couldn’t stay in the basement and as he got to the top of the stairs the gas exploded; that Kendall was crying for help and he got the water hose and squirted water on him and then got him by the hands and pulled him out of the fire.

From the foregoing, appellants conclude that Robert was doing nothing for the partnership and that he had become the special employee of Kendall and, therefore, judgment should have been rendered for .the partnership. Appellants contend that the evidence shows that Robert was acting in the course of his employment as a special employee of Kendall, as a matter of law; that, as a matter of law, Robert was not acting in the course of his employment for the partnership, or Jacobs, and, that if there is a question of fact relative to Robert’s employment at the time, that it is as to whether Robert was in the course of his employment for Kendall or for Howsley. In support thereof they cite Magnolia Petroleum Company v. Francis, Tex.Civ.App., 169 S.W.2d 286 (Writ Ref.) and Hilgenberg et al. v. Elam, 145 Tex. 437, 198 S.W.2d 94.

In reply to said contentions, appel-lees point out that it is undisputed that at the time of the explosion Robert was an employee of the partnership; that while Robert was cleaning the basement with gasoline he was doing the kind of work he was employed by the partnership to do and the kind of work that he was in the habit of doing for the partners for a long time. Robert was the handyman of the partnership, he did what the partners told him to do. He had no specific duties. He worked in the yards of the partners. He did cleaning at their houses. He cleaned up around leases. It is undisputed that when Mr. Howsley told Robert to be present when Mr. Kendall came for the compressors that he told him to do what Mr. Kendall told him to do. But, it is likewise undisputed that Mr. Kendall requested Mr, Howsley to have Robert there, and he had him there, for the sole purpose of removing the compressors from the basement and loading them into Kendall’s truck. They were too heavy for one man to remove and load. In removing and loading the compressors and in cleaning the basement Robert was doing the kind of work he was hired to do. There is no insinuation that anyone with sufficient strength to do that job would not have been equally satisfactory to Kendall. Robert was there to save his employer the cost of bringing another man from Cisco to help Kendall do the lifting. That was the only kind of work Howsley could have had in mind when he told Robert to be there and do what Kendall told him to do. Removal and loading of the compressors had been accomplished before the fire. Kendall had no duty to clean up the basement. That was the kind of work Robert was employed to do and the kind of work he was in the habit of doing. Of course, if Kendall helped Robert clean the floor with gasoline or directed Robert to clean the basement with gasoline he may have been precluded from recovery. But, the jury had the right to conclude, as it did, that Kendall did none of these things. It had the right to find, as it did, that, after the compressors had been removed from the basement and loaded into Kendall’s truck, Robert, without Kendall’s knowledge, used gasoline to clean the floor and that when Kendall returned to the basement to ascertain whether he had left any tools he was caught in the explosion of gasoline fumes. It was certainly not established as a matter of law that Robert was then an employee of Kendall. Hartford Accident & Indemnity Company v. Addison, 5 Cir., 93 F.2d 627, 629; Standard Oil Company v. Anderson (U. S. Supreme Court), 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Restatement of the Law of Agency, Section 227, page 501; Insurors Indemnity & Insurance Company v. Pridgen (Tex.Sup.), 223 S.W.2d 217; Light v. Heldt, Tex.Civ.App., 349 S.W.2d 271 (Ref. N.R.E.); Polanco v. Austin Bridge Company, Tex.Civ.App., 348 S.W.2d 728; Dempster Mill Mfg. Co. v. Lester, Tex.Civ.App., 131 S.W.2d 254; 29 Tex.Jur. 132, 133; 29 Tex.Jur. 128; 35 Am.Jur. 971; Mercury Life and Health Company v. DeLeon, Tex.Civ.App., 314 S.W.2d 402 (Ref. N.R.E.); Texas Employers’ Insurance Association v. Baker, Tex.Civ.App., 278 S.W.2d 419. We think the evidence did not raise a question of fact as to whether Robert, at the time of the use of gasoline and the explosion, was an employee of Kendall. Kendall was on the premises to get the compressors and take them to Cisco. Robert was present solely for the purpose of helping Kendall remove the heavy compressors from the basement and load them into Kendall’s truck. This had been accomplished before gasoline was used and the explosion occurred. Kendall had no duty to clean the basement. That was the kind of work Robert was hired by the partnership to do and that was the kind of work he was in the habit of doing. However, if such an issue of fact was raised we think appellants were not injured by the manner the question was submitted. Texas Employers’ Insurance Ass’n., v. Baker, 278 S.W.2d 419, 423 (Ref. N.R.E.); Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, 99 and Traders & General Ins. Co. v. Rhone et al., Tex.Civ.App., 110 S.W.2d 621, 624; Texas Employers’ Insurance Ass’n. v. Brooks, Tex.Civ.App., 266 S.W.2d 260 (Ref. N.R.E.).

Mr. Howsley’s testimony that, after he had agreed with Mr. Kendall to have Robert present to help remove the compressors and load them into the truck, he instructed Robert to do what Kendall told him to do should have been admitted. However,, we do not think appellants were injured thereby. Robert so testified without dispute. There was no attempt to contradict him as to that matter. He was not cross-examined about it. Such an instruction loses much of its force in view of the fact that Kendall asked for Robert to be there solely because the compressors were heavy and help was needed in removing them from the basement and putting them in Kendall’s truck and the further undisputed fact that Howsley had Robert there for that purpose alone. That purpose had been accomplished before gasoline was used and the explosion occurred.

We think the court did not err in admitting testimony of what Mr. Kendall said about how the fire occurred. The evidence was sufficient to show that the statements were made by the deceased soon after the fire, during intense suffering due to severe burns over most of his body and while he must have been conscious of impending death. We think his statements were res gestae and admissible.

We have considered all of appellants’ points and have concluded that reversible error is not shown. The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    U. S. LETTER CARRIERS MUTUAL BENEFIT ASSOCIATION, Appellant, v. Chester R. SYPULSKI et ux., Appellees.
    No. 16345.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 8, 1963.

      Ivy Lee Buchanan, Washington, D. C., and Ernest May, Fort Worth, for appellant.
    Harris, Ball & Jones and Richard O. Jones, Arlington, for appellees.
   MASSEY, Chief Justice.

Our opinion in this case, filed under date of June 29, 1962, is withdrawn and the following substituted therefor.

U. S. Letter Carriers Mutual Benefit Association affords hospital and surgical expense insurance to the families of individuals qualified to receive the same. Such is by written policy contracts issued in consideration of premiums.

Chester R. Sypulski was an individual qualified to contract with the Association for such insurance and he did so. His application therefor was dated December 9, 1959, and a certificate of insurance was issued by the Association dated January 1, 196.0, affording hospital and surgical insurance to Mr. Sypulski and his wife, provided necessity therefor arose out of “sickness * * * the cause of which originates while this certificate is in force * * * and after it has been in force for at least thirty days from its date.”

Mrs. Sypulski incurred hospital and sur:gical expense in the month of May, 1960. Claim was made for benefits under the policy. The claim was denied. It was the contention of the Association that the expenses so incurred arose out of sickness which originated prior to or within thirty days after January 1, 1960, the date of the certificate.

The Sypulskis filed suit against the Association, and, following a jury trial, judgment in the amount of $845.00 was entered in their favor. The Association appealed and stands as the appellant in this court.

Judgment affirmed on condition of remit-titur; otherwise, reversed and remanded.

While our action was pending on the motion for rehearing filed after our first opinion was handed down, our attention was drawn to the case of Consolidated Furniture Company v. Kelly, 1962 (Tex.Civ.App., Houston), 358 S.W.2d 956. It was felt that the decision in such case conflicted with our decision in this, and that in the event the decision in the Consolidated Furniture case should be determined to be proper, the action we should take in the instant case would be to dismiss the appeal, for the amended motion for new trial did not show on its face that it was filed with permission of the trial court. We have taken note of the fact that the Supreme Court granted a writ of error in the Consolidated Furniture case on January 23, 1963.

We have no way of knowing what the ultimate action of the Supreme Court might be in the Consolidated Furniture case. We do know that there will necessarily be some delay in receiving its decision. It may be that the losing party to this appeal might prefer to file a remittitur in order to obtain an affirmance of the judgment, or to accept a reversal and retry the case, rather than file a motion for rehearing and risk further delay. Certainly we would be disposed to delay action on a motion for rehearing should delay be requested in connection with any such motion filed. We have concluded that we should presently render this opinion.

At the outset we are presented with a contention that appellant’s points on appeal are predicated upon an amended motion for new trial, leave to file which was not obtained from the trial court. The Sypulskis contend that Texas Rules of Civil Procedure, rule 329b, “District and County Court Cases”, therefore inhibits consideration of the amended motion for new trial as an instrument presenting assignments of error upon which appellant is entitled to found the points of error presented in its brief. We overrule the contention. In the first place there is no affirmative showing in the record that appellant did not have leave of the court to file the amended motion for new trial, albeit there is likewise no showing that it did have leave. In such an instance, leave should be presumed. But assuming that leave to file the amended motion for new trial was not obtained, we nevertheless believe and hold that since the Sypulskis have not shown that the fact that appellant filed an amended motion for new trial has been the occasion of prejudice to them in affording appellant the right and the grounds for its points of error on appeal, the failure to obtain leave amounts to a mere irregularity and does not constitute such an omission as deprived the appellant of any right it otherwise would have had. W. C. Turnbow Petroleum Corporation v. Fulton, 1946, 145 Tex. 56, 194 S.W.2d 256; Holt v. Purviance, 1961 (Tex.Civ.App., Dallas), 347 S.W.2d 321, writ ref., n. r. e.

Appellant’s first point of error reads as follows: “The insufficiency of the evidence to warrant judgment for $845.00.” If the point is germane to any ground presented in the amended motion for new trial it is to that reading as follows : “Exclusive of the attorneys’ fee, the sum adjudged exceeds benefits payable by the policy.” Although we at first believed that the point of error was not grounded upon this assignment in the amended motion for new trial, it is our present opinion that it is properly germane to and is supported by the assignment. In this conclusion we find aid in the question raised and discussed under the rather abbreviated language of the point itself. Fambrough v. Wagley, 1943, 140 Tex. 577, 169 S.W.2d 478, 482.

The instant suit is one for health and accident benefits under a policy contract. In an instance where a claimant has established company liability in a suit for health and accident insurance benefits it is ordinarily necessary for the judge of the trial court to calculate the total amount recoverable thereunder by reference to the policy (in view of the evidence and fact findings thereunder made). He must add the amounts payable because of hospital services, surgical expenses, medicines, etc., as to which varying amounts of insurance payments are due, in order to obtain a total figure for which judgment would be properly entered. An assignment of error asserting that said total sum so awarded is in excess of the amount properly payable under policy provisions would ordinarily embrace an assertion of a want of evidence supporting said amount so calculated. If we are correct in this statement of law then appellant’s point of error properly raises the question for determination.

In appellant’s brief it was written: “Judgment was entered in his (Mr. Sypul-ski’s) favor for $845.00; benefits, $720.00; attorneys’ fee, $125.00.” The statement is unchallenged. The appellant does not complain of the award of $125.00 as attorney’s fee, although there was no evidence upon the matter of reasonable attorney’s fee, and, in view of the fact that trial was before a jury, the question would have been one for the jury to resolve. Indeed, no issue thereon was submitted to the jury. Award of attorney’s fee was apparently made by the judge of the trial court. Counsel for appellant takes the figure of $720.00 and demonstrates from the evidence that under such proof as was offered the maximum indemnity payable under the policy was $340.00. To add $125.00 as an attorney’s fee results in the amount of $465.00..

It is obvious from the Sypulskis’ pleadings that they sought to recover $120.00’' indemnity by reason of charges for, room and board incurred because of Mrs. Sypul-ski’s eight day confinement. They also sought to recover indemnity relative, to the hospital charges for operating room, X-ray, laboratory, etc. There was no proof. The necessity of such proof, under proper complaint because of its absence, is established under the authority of Mercury Life and Health Company v. Morales, 1959 (Tex.Civ. App., San Antonio), 325 S.W.2d 459.. In the instant case proper complaint was made because of the absence of proof. Apart from $125.00 in attorney’s fees, of which no complaint is made, the maximum liability upon appellant established in the evidence was $340.00. Combining the two figures results in the amount of $465.00. Hence, we are able to treat this figure as the maximum for which judgment could have properly been entered.

We next examine appellant’s point of error reading as follows: “The insufficiency of the evidence for the verdict that none of the operations for which benefits were claimed resulted from sickness originating before January 1, 1960 (the date of the certificate) or within thirty days thereafter.” A companion point complains because appellant’s motion for judgment notwithstanding the verdict was overruled. To overrule the point quoted would be to overrule the companion point. By the quoted, point of error we are called upon to consider the verdict returned by the jury. Therefrom it is noticed that the only special issues submitted to the jury had relation to affirmative defenses of the appellant, and that the questions in answer to which the issues upon said defenses were to be resolved properly placed the burden upon it. In other words the appellant was in the position of trying to persuade the jury to return “yes” answers, upon a “preponderance of the evidence” in the case, to inquiries which included: did the operations for which benefits are claimed result from a sickness which originated prior to January 1, 1960, or within 30 days thereafter ?

The complaint made is because of the jury’s “no” answer (a refusal to find “yes” by a preponderance of the evidence) to said third question. This was substantially an inquiry as to whether the necessity for the operations was occasioned by reason of a disorder or illness of Mrs. Sypulski existent during the month of January, 1960, or prior thereto.

The point assigns “insufficiency of the evidence” rather than “against the great weight and preponderance of the evidence”, but we believe that it is now settled that no legal distinction is to be made. In other words whether the assignment of error, and point predicated thereupon, is the want of sufficient evidence to support the finding returned by the jury—or is a complaint that such finding is against the great weight and preponderance of the evidence—it has the effect of imposing a duty upon the Court of Civil Appeals to review the whole of the evidence in the entire record in a determination of whether the jury finding of which the complaint is made is “clearly unjust”. In discharging such duty the reviewing court begins with the implied concession that the answer returned by the jury was an answer which reasonable minds could reach, and proceeds further in the determination of whether the answer so returned was clearly the product of something other than reason. See the article by Associate Justice W. St. John Garwood at 30 Texas Law Review 803 et seq., entitled “The Question of Insufficient Evidence on Appeal”.

It stands self-evident that a complaining party who has been unable to persuade the jury to return an affirmative or “yes” answer to a special issue upon which he carried the burden of proof, and who presents the complaint that the jury’s negative or “no” finding is against the great weight of the evidence (or finds insufficient support in the evidence) is burdened with greater difficulty than would be the case were he making like complaint because of an affirmative or “yes” answer returned on an issue as to which the burden was carried by his opponent. Indeed, the author of this opinion once expressed a belief that application of the law would foreclose any ability to sustain such a contention. See North Texas Producers Association v. Stringer, 1961 (Tex.Civ.App.), 346 S.W.2d 500, writ ref., n. r. e. He is presently convinced that the belief so expressed in said case was erroneous, and that circumstances could exist such that a negative or “no” finding would be “clearly unjust” (i. e., against the great weight of the evidence or not supported by sufficient evidence), particularly in instances where such would be a finding against the complaining party rather than a mere “refusal” to find for him. However, the author is of the opinion that the negative or “no” finding of which complaint is made in the instant case, and which amounts to a mere refusal to find for appellant, was not “clearly unjust”.

Mrs. Sypulski had an illness about one week before Christmas in 1959, involving “low abdominal cramps”, from which she had apparently recovered on date of January 5, 1960, when she went to see Dr. Andy Bowden, Jr., a gynecologist, for an examination directed toward determining whether she might wisely begin planning to have an additional child. Incident to the examination Dr. Bowden took some smears from Mrs. Sypulski’s cervix and forwarded them to a laboratory for an analysis. The analysis report returned indicated the presence of infected or abnormal cells. The explanation of the meaning of the presence of infected or abnormal cells was that such might signify some residual deposit from an infection or other physical trouble which had cleared up or been remedied, but contrariwise that such could signify that there was an existent infection or physical trouble that was producing such cells. The analyst suggested additional smears to be made .after an expiration of some time for comparative purposes. Obedient thereto Dr. Bowden took additional smears on or about ■date of February 8, 1960, and forwarded them to the analyst. Therefrom it was at least determined that the infection or physical trouble had not cleared up, for the infected or abnormal cells were again present, .as found from analysis.

The report on the second set of smears was dated February 10, 1960. A recommendation was made at the end of the report reading as follows: “Because of the atypical squamous epithelial cells suggest a cold knife conization for histiological evaluation.” Dr. Bowden accordingly reported to Mrs. Sypulski and her husband and recommended that she submit herself to hospitalization and for diagnostic surgery pursuant to such confinement, i. e., “a cold knife conization” of the cervix. The testimony indicated that Dr. Bowden felt that there was no need for haste and communicated that fact to the Sypulskis. Arrangements were made for the hospitalization, and Mrs. Sypulski entered the hospital and had the “cold knife conization” on May 3, 1960. Such “conization” evidently involves the excision of a thin cone of tissue from the cervix (mouth of the womb) for the purpose of tissue examination in the lab•oratory.

The “conization” was performed and the tissue taken from the cervix was found to be cancerous. Pathological diagnosis included the finding, among others, of “Car- • cinoma-in-situ of cervix”. Major surgery was therefore indicated, and without delay .•such was performed on May 4, 1960. A total hysterectomy was performed, plus other remedial surgery.

Appellant’s theory is that the “carcinoma-in-situ” of the cervix, existence of which was discovered pursuant to the “conization” performed on May 3, 1960, necessarily existed on or before date of January 5, 1960, and certainly on said date. But for such existence, according to appellant’s theory, there would have been no abnormal or infected cells in the smears taken by Dr. Bowden on that date and referred to the laboratory. The fact that there were abnormal or infected cells in the smears taken in February of 1960, convinces appellant that the abnormal or infected cells found as the result of that examination were likewise caused and occasioned by the cancerous condition actually found on May 3, 1960. Ergo, says appellant, Mrs. Sypulski had a “sickness” which existed before and certainly on date of January 5, 1960, that such “sickness” was the cause and occasion for the operations in May of 1960, wherefore the Sypulskis were not entitled to claim benefits under the policy contract in view of a provision which excluded any liability therefor.

The trouble with appellant’s theory is that there was no evidence which specifically established that the cancerous condition, found on May 3, 1960, was the cause and occasion for the presence of the diseased or abnormal cells found in the smears taken January 5, 1960. The same applies to the cells found in the smears of February, 1960. Coupled therewith was the statement of Dr. Bowden that he could not say that the “carcinoma-in-situ” existed in January of 1960, and that he could not say how long Mrs. Sypulski’s illness from cancer had existed. The whole of the evidence on the matter, in so far as evidence exists as to which appellant may claim benefit, is that of Dr. Bowden, supplemented by medical reports and records. The state of the evidence was such that the jury finding desired by appellant would have been warranted. Such finding would have been by way of a factual conclusion drawn by the jury. Though warranted, such conclusion was neither such as was compelled to be drawn and a finding accordingly made, nor was the jury’s refusal to so conclude and find “clearly unjust”, i. e., that its negative or “no” answer to the special issue was clearly the product of something other than reason. Accordingly, appellant’s point of error is overruled.

Maximum amount for which judgment could be affirmed is the amount of $465.00. We believe that the judgment of the trial court can be affirmed only upon condition of remittitur in the sum of $380.00. Should a remittitur in said amount be filed within fifteen days, judgment will be affirmed. In the event a remittitur is not so made, the case.shall stand as one in which judgment is reversed and the cause remanded for another trial.

LANGDON, J., not participating.

SUPPLEMENTAL OPINION

MASSEY, Chief Justice.

Appellees having filed in writing the re-mittitur as suggested in our original opinion, it is ordered that the judgment, as reduced by the remittitur, be affirmed.


author: PHILLIPS, Justice.

text:
    Manuel BALTAZAR, Jr., Appellant, v. George NEILL, Jr., Appellee.
    No. 11043.
    Court of Civil Appeals of Texas. Austin.
    Feb. 6, 1963.
    Rehearing Denied Feb. 27, 1963.

      William G. Washington, Austin, for appellant.
    Byrd, Davis & Eisenberg, Austin, for ap-pellee.
   PHILLIPS, Justice.

This is an appeal from the 98th District Court of Travis County, Texas, wherein George Neill, Jr., plaintiff in the trial court .and hereinafter referred to as plaintiff, sued Manuel Baltazar, Jr., a minor, hereinafter referred to as defendant, for personal injuries received in an automobile collision on July 11, 1959 at the intersection of West Mary and South First Streets in Austin, Texas. The case was reviewed by this Court once before and was reversed and remanded for a new trial, Neill v. Baltazar, Tex.Civ.App., 345 S.W.2d 454, writ ref., n. r. e.

The evidence indicates that both the plaintiff and defendant were driving north on South First Street and approximately a block before reaching the intersection where the collision occurred, the plaintiff passed the defendant’s vehicle and came to a complete stop at the stop sign. It was at this point that defendant’s truck ran into the rear of the plaintiff’s car. The defendant contends that while both he and the plaintiff stopped at the stop sign, the plaintiff started his car again, stopped it suddenly in the intersection and that 'it was at this point that the collision occurred. This variance will be discussed later.

The jury found that defendant failed to keep a proper distance between his truck and plaintiff’s automobile, was driving his truck at an imprudent rate of speed, failed to properly apply his brakes, failed to keep a proper lookout and that all of these acts were a proximate cause of the collision. The jury also found that plaintiff did not fail to give a hand signal of his intention to stop, and did not fail to keep a proper lookout.

The jury found, in respect to damages, that the reasonable value of the necessary repairs to plaintiff’s car was $250.00; that the reasonable value of his- past medical expenses due to injury received in the accident was $833.00; that the reasonable value of his future medical expenses due to injuries received was $1,000.00; that the reasonable value of his past loss of earning capacity was $300.00 and his future loss was $1,500.00; that the reasonable value of his pain and suffering both past and future was $1,200.00.

The first four .points of error will be considered together as they were grouped in defendant’s brief. These points are concerned with some eight automobile accidents that plaintiff had been involved in, five in the past and two after the accident that is the basis of this suit.

At the outset of the trial below, plaintiff made a motion to the court, objected to by the defendant, the part pertinent to this case being as follows:

“Since it is immaterial to this suit whether or not Plaintiff has been in prior automobile collisions or whether or not Defendant has not been in prior automobile collisions the defendant is precluded from using any pleading, testimony, remarks, questions or argument which might inform the jury of such facts.”

The Court granted the motion.

Defendant does not contend that the prior accidents were offered to show negligence on the part of the plaintiff but they were offered to show prior abnormal physical condition or injury. Two doctors testified at length and the testimony of a third doctor given at the prior trial of this case was read into evidence.' These doctors were plaintiff’-s witnesses, had examined and treated plaintiff and all three testified that in their opinion plaintiff had sustained bodily .injury due .to the impact of the collision in question. The injury described by the doctors was referred to in lay terms as a whiplash injury to the neck or, in medical terms an extension-flexion syndrome caused by trauma. The evidence showed that the plaintiff had been in pain at various times after the collision and had been hospitalized and treated on the advice of the doctors. There was also evidence that one of his arms had withered somewhat due to the injury received, and that he would be incapacitated to some degree in the future.

The only evidence in the record as to a possible prior injury or abnormal bodily condition of the plaintiff was brought out by defendant on cross-examination of the plaintiff’s medical witnesses and their interpretation of certain x-rays. One of the doctors testified on cross-examination that he believed plaintiff to have had arthritis at the time of the accident. Another on cross-examination stated that, according to the radiologist’s report from the hospital, the x-rays showed “mild lipping at the C-6 inner space. Straightening of the cervical spine. Otherwise normal appearing cervical spine. Minimal joint space narrowing with hypertrophic lipping is noted at the first thoracic inner space.” The doctor reading this report stated under cross-examination that he himself was unable to see the defect mentioned in the radiologist’s report, however that if the defect was present, it could have resulted from an old injury. Another medical witness for the plaintiff testified that the x-rays indicated plaintiff had arthritis and a narrowing of the vertebrae at one point when the accident happened. That the narrowing could have been caused by an accident in the past.

Defendant offered no testimony whatsoever to show a possible prior abnormal bodily condition or prior injury on the part of the plaintiff, other than the above mentioned cross-examination, leaving all of the doctors’ testimony that plaintiff had received injury at the collision in question uncontroverted.

Plaintiff denied that he had been previously injured in an automobile accident

Since defendant did not offer any suggested issues relative to prior injury or abnormal bodily condition it is somewhat uncertain as to whether he would have offered such matter as a defense to the alleged injury received by the plaintiff or in mitigation of the damages. We hold that the defendant would -have been precluded from either route. Should the matter have been offered defensively the doctrine announced in Armour & Co. v. Tomlin, 60 S.W.2d 204, 205, Tex.Com.App., 1933, would apply in that even though the jury had found a prior injury or prior abnormal bodily condition, inasmuch as they also found plaintiff had been injured in the collision by the negligence of the defendant and that such negligence was the proximate cause of the injury, the result reached in the trial court would not have been altered. Such findings would not have been inconsistent.

Should the defendant have offered the matter in mitigation of damages to show that the injury received in the collision merely aggravated a pre-existing injury or became additional damage to some pre-existing infirmity or bodily abnormality, he would have come under the doctrine announced in Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862, 1949, wherein the court announced the test to be (a) evidence of a definite infirmity on plaintiff’s part aside from injury due to the accident; (b) evidence of causal connection—which might be close proximity in time—between such infirmity and some pain or disability suffered after the accident, and (c) confusing close “ ‘intermingling’ between the infirmity not due to the accident and that due to the accident, so that the jury might be misled into awarding money for the total pain and disability accruing from both, rather than for that accruing only from the accident.” We hold that there was insufficient evidence in the record to meet any of the tests enumerated in the Orr case. Consequently, inasmuch as defendant was unable to present sufficient evidence of a prior injury or physical abnormality that would have had a direct bearing on the alleged injury brought about by the accident in question, evidence of other accidents would have been meaningless. The trial court correctly excluded this testimony.

We further hold that since the defendant did not offer a suggested issue on prior physical condition, he waived this portion of his defense. Rule 279, Texas Rules of Civil Procedure.

Defendant assigns error to the fact that the jury’s award to the plaintiff was excessive. We overrule this point. See 17 Tex. Jur.2d, sec. 333, page 407.

Defendant assigns error to argument by plaintiff’s counsel in closing to the effect:

“you are not concerned with who pays whatever judgment the court may enter. That is no concern * *

and also:

“ * * * when he stood here and told you, ‘be careful, you are going to hurt somebody’ he was not telling you the truth.”

Defendant contends that the effect of these statements was to intimate to the jury the fact that defendant was insured, constituted a slur on counsel for the defendant and questioned his integrity. We overrule this point.

The defendant in this case was a minor. Throughout the trial a close member of his family was present.

During his argument, defendant’s counsel pleaded with the jury to return a verdict that was completely fair and reasonable and something “that is not going to hurt anybody.” A situation similar to this was passed on by this court in Renegar v. Cramer, 354 S.W.2d 663, Austin Civ.App., 1962, writ ref. n. r. e. concerning an argument, part of which, is as follows: “Of course, the Court is telling you not to be concerned with the actual effect of your answers, nor with who is actually going to pay your verdict or whether or not it will ever be paid.”

In this case the court said:

“As to the argument first made, it must be remembered that the appellant was a girl not quite 15 years old. The natural question which would arise in a layman juror’s mind would be the liability of the parents for a judgment against the girl. It is not a uniform settled question among the states. In some states the parents, aside from agency, are responsible for damages resulting from negligent acts of their minor children in driving automobiles for family purposes. Texas is not among these states. (Citing cases.)
“The principal purpose of the argument first made, in our opinion, was to guard against the normal disinclination of a rational mind to punish one (the parents) who is without fault.
“Under the circumstances here, we do not regard such argument, reasonably considered, as intimating or implying that appellant was protected by insurance.” (Citing cases.)

With regard to the part of the argument that possibly cast aspersions on defendant’s counsel’s integrity we hold in light of the entire record presented that such error was harmless. See Rule 434, T.R.C.P.

Defendant assigns error to the fact that the trial court failed to submit the following two special issues:

“Do you find from a preponderance of the evidence that the plaintiff, George Neill, Jr. immediately prior to the collision in question failed to give a signal of his intention to stop his automobile ?”

and:

“Do you find from a preponderance of the evidence that at the time and on the occasion in question George Neill, Jr. stopped his automobile suddenly?”

On the former trial the jury found, among other things, that the plaintiff had stopped his automobile suddenly and that such was negligence and a proximate cause of the collision; that Neill failed to give an arm signal of his intention to stop, and that such failure was negligence but not a proximate cause of the collision. The trial court entered judgment on the verdict for the-defendant. On reversing the trial court and remanding this cause for a new trial this court said:

“The appellant Neill was required to stop and was well within his legal rights to do so and to assume that appellee would not fail to observe the stop sign and would bring his truck to a stop and avoid colliding with the automobile. The appellant, as a matter of law, did not violate any legal duty to the appel-lee, who was behind him, by stopping at the traffic stop sign. (Citing cases.)
“We believe that the jury’s findings of negligence on the part of appellant is against the great weight and preponderance of the evidence. We have considered all of the evidence in the record in making our determination in this respect.” 345 S.W.2d 454.

This court has again reviewed the record made on the second trial of the case and can see no reason to change our opinion on this point. The evidence presented on the second trial was substantially the same as on the first.

With respect to the issue defendant requested concerning the alleged failure of the plaintiff to give a signal of his intention to stop, the court did submit the following issue to which the jury answered “no”:

“Do you find from a preponderance of the evidence that immediately prior to the collision in question George Neill, Jr. failed to give a hand signal of his intention to stop his automobile?”

We hold that the court’s ruling quoted above on the first appeal applied with equal force to this issue, however, substantially the same issue was presented to the jury and they found against the defendant. See Rule 279, T.R.C.P.

As stated at the outset of this opinion, defendant in his answer alleged that while plaintiff had stopped his car at the stop sign and defendant had stopped behind him, plaintiff started his forward progress again, stopped suddenly in the intersection and that it was at this point that the defendant’s truck struck the plaintiff’s car. The only evidence to this effect in the record is the defendant’s testimony. Defendant neither requested nor submitted an issue on this point; consequently, we will deem this defense to have been waived. Rule 279, T.R.C.P.

We overrule these assignments of error.

Defendant’s last two points of error, briefed together deal with evidence admitted by the trial court, over appropriate objection, that plaintiff’s wife made from between $45.00 and $50.00 per week working outside the home and that due to plaintiff’s incapacity resulting from the accident plaintiff’s wife had to quit these jobs and work in the plaintiff’s place of business. That this point was argued to the jury as an element of the damages incurred. We find no error here and overrule these points.

In the Cramer case, cited above, we held that the evidence supported the finding that an injured wife would be unable .to perform her usual household duties for the remainder of her life and a sum of money was allowed that would compensate her for costs of domestic help that she would incur in the future. The court said:

“We also observe that domestic work has value whether paid for in money, affection, or whether not paid for at all.”

and further:

“The jury has great latitude in finding the present value of future damages.” (Citing cases.)

We hold that the earnings of the wife under the facts presented were a proper element in arriving at the damages sought.

Affirmed.