author: HILL, Judge.

text:
    Arch J. MARMOR, Appellant, v. Helen V. MARMOR et al., Appellees. Arch J. MARMOR, Appellant, v. Neville COTTON, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.

      Leslie W. Morris, II, Stoll, Keenon & Park, Lexington, for appellant.
    C. E. Schindler, H. Solomon Horen, Louisville, Chenault, Coy & Sword, Richmond, for appellee Helen V. Marmor.
    George T. Ross, John W. Palmore, Richmond, for appellees Neville Cotton and Harold W. Thomas.
   HILL, Judge.

This is an appeal from a verdict and judgment in two consolidated actions resulting from a head-on collision between the automobile owned and driven by appellant and a truck owned by appellee Neville Cotton and driven by appellee Harold W. Thomas. The wreck occurred on a sharp curve on U. S. 277 in Madison County on the afternoon of October 13, 1959. The first action was filed by Cotton against Arch J. Marmor to recover damages to his truck. The second action to be filed was that of Helen V. Marmor, wife of Arch J. Marmor, against her husband and the owner and the operator of the truck in which she sought damages for pain and suffering, permanent disability, and reimbursement of medical and hospital expenses.

A five-day trial resulted in a verdict by the jury in favor of Helen V. Marmor for $38,431 against her husband only and a verdict in favor of Cotton against Arch J. Marmor for $870 for damages to his truck.

Without listing grounds assigned for reversing the judgment, we shall discuss them in the order in which they appear in appellant’s brief. But first we relate the facts.

The highway on which the collision oc-cured is a two-lane blacktop road 18 to 18.8 feet wide. A moderately gentle rain was falling. The collision occurred on a sharp left-hand curve for the truck while it was traveling at a speed of about 15 miles per hour.

Harold Thomas was operating the dump truck owned by Neville Cotton en route from Richmond to Winchester. The truck was pulling a lowboy loaded with a “sheep’s foot” roller. The truck was seven feet eight inches wide, the lowboy was eight feet one inch wide, and the “sheep’s foot” roller was nine feet wide and extended some eleven inches over and beyond the right side of the lowboy.

Appellant Arch J. Marmor was driving his Ford automobile in the direction of Richmond. His wife was the only passenger in the car.

Coming into the curve, Thomas had the truck in the middle of the road, according to his testimony; but on observing the oncoming Ford automobile 200 feet away, he moved to his side of the road and was on his side of the road when the Ford struck the left front end of the truck. Thomas further testified that when the Ford was 50 feet away and still on the wrong side of the center of the road, he, Thomas, started to ditch the rig and ran part of the right wheels off the blacktop.

Appellant testified he approached the curve at 10 miles per hour on his own side of the road when Thomas came around the curve on the wrong side of the center line. Thus, a sharp issue was presented to the jury that was resolved adversely to appellant.

It is first contended by appellant that he was entitled to an instruction stating that it was negligence per se to operate a vehicle the width of which exceeded nine feet in violation of KRS 189.221.

It is admitted by appellee Thomas that the lowboy was 97 inches wide, one inch in excess of the limitation contained in KRS 189.221. Appellant contends the “sheep’s foot” roller was nine feet wide. Appellees Thomas and Cotton admit this but contend the extra foot over the eight feet allowed by statute extended over the right side (Thomas’ right) of the lowboy. The deposition of Thomas, taken on discovery, indicated the one foot overwidth of the lowboy extended equidistantly on each side of the lowboy; but Thomas testified positively on the trial that he intended to state the foot overwidth extended only on the right side of the lowboy.

It makes little difference whether the overwidth of one foot was equally divided on each side of the lowboy as the Ford automobile struck the left front end of the truck and did not touch the “sheep’s foot” roller or the lowboy.

Ordinarily, a violation of a statutory duty is evidence of negligence entitling the adverse party to submission of that issue to the jury. Phoenix Amusement Co. v. White, 306 Ky. 361, 208 S.W.2d 64, and Greyhound Corporation v. Hounshell, Ky., 351 S.W.2d 64. However, there must be evidence, or a fair inference from the evidence, that the violation of the statute was a proximate cause of the accident. Magness’ Adm’x v. Hutchinson, 274 Ky. 226, 117 S.W.2d 1041.

In the present case, there is no evidence that the width of the rig was a proximate cause of the wreck. Therefore, it is concluded the trial court did not err in refusing to give the offered instruction.

Appellant next argues that the testimony of Ralph Snyder (claimed to be an expert) and numerous photographs overcame the testimony of Thomas and Mrs. Marmor, entitling him to a judgment n. o. v. With this position we cannot agree. The conflicting evidence, hereinabove referred to, was ample to sustain the verdict.

Appellant assails the ruling of the trial court in allowing the witness Valtner Isaacs to testify as he was present in the courtroom in violation of the court’s rule pertaining to the exclusion of witnesses from the trial before giving their testimony. CR 43.09. Isaacs was referred to by appellant as “almost” the only eyewitness other than the immediate parties in the vehicles involved in the wreck. He heard only the evidence of the two photographers and an engineer. In so doing, he heard nothing that enabled him to change or modify his own testimony. The trial court has some discretion in determining whether there has been a violation of the rule under CR 43.09, and the ruling of the trial court allowing Isaacs to testify was not in our opinion an abuse of discretion. See Illinois Cent. R. Co. v. Outland’s Adm’x, 160 Ky. 714, 170 S.W. 48, and Browley v. Murkison, Ky., 282 S.W.2d 352.

Appellant questions the failure of the trial court to give his offered instructions one through six, inclusive.

These offered instructions set out the various and sundry statutory duties; such as, reasonable rate of speed, lookout duty, and to keep the vehicle under reasonable control. The giving of such offered instructions might not have been improper or prejudicial to either side, but they were unnecessary. The instructions given simply allowed the jury to find against the operator the jury found to be on his wrong side of the highway and to find for neither party under the usual “dog fall” instruction. We do not consider the failure of the trial court to give the instructions offered by appellant was in any way prejudicial to him.

Appellant next complains of improper remarks “throughout the trial prejudicial” to him. A sample of the remarks is quoted in appellant’s brief. Without quoting the remarks objected to, it is sufficient to say we have carefully examined those listed as sample and other similar remarks in the record and do not find them to be prejudicial.

As final ground for reversing the judgment, appellant contends the verdict of $38,431 is excessive.

Mrs. Marmor’s total special damages for medical and hospital care amounted to $8,431. It is apparent the jury intended $30,000 of the verdict as compensation for pain and suffering and disability.

At the time of her injuries, Mrs. Marmor was 54 years of age, in good health, with a life expectancy of 23.40 years.

After the accident she was taken by ambulance to a hospital in Richmond. She arrived in a semiconscious condition bleeding severely. A preliminary examination disclosed she was suffering from a severe concussion of the brain; a deep ragged eight-inch laceration across the forehead, which cut the temporal artery and required 23 sutures; a comminuted fracture of the tibia of the right leg, which is the main weight bearing bone of the lower leg; and a traverse fracture of the fibula of the same leg. Subsequent examination further disclosed an injured upper arm, left breast, and left chest. After the bleeding was controlled and a temporary leg cast applied, she was removed by ambulance to a Louisville hospital. The fragments of the tibia were displaced in such an unsatisfactory condition open surgery was necessary six days later. The fragments were fastened with bone screws, and a long plaster cast was applied from toes to upper thigh.

She suffered constant pain and could not see during the first week because of the blow to her head and her swollen eyes; she could not move or talk and was fed by tubes; she could not leave her bed or do anything for herself. A kidney complication developed that prevented normal kidney movement for four weeks and required a catheter, which produced infection and severe pain.

After six and one-half weeks in the hospital, she was transferred by ambulance to her sister’s home in Cincinnati, Ohio, where she was confined to a hospital bed for another month. She was then taken by ambulance back to Louisville for the removal of the upper part of the cast. Then she was returned to her home for another six weeks of bed confinement. During all periods of confinement, she required and paid for the services of practical nurses. The leg cast was removed three months after the accident and was replaced with a leather lace-up steel brace, which she wore for a year. Therapy treatments were administered at Kentucky Baptist Hospital, Louisville, Kentucky.

At the time of the trial, some four and one-half years after the accident, she was still complaining of constant pain and was still being treated by a doctor. She was wearing a back brace continuously and was using a cane. She testified that she had pain in her back and head; that her head was still numb, and she couldn’t pick up objects such as money, needles, and the like; that her legs were stiff and her knees gave way causing her to fall often; that her leg was swollen and required support stockings; and that she couldn’t do her housework.

One of her several doctors testified that at the time of the trial she had pain and tenderness in her left arm above the elbow; she had twenty percent limitation of forward spine movement; marked impairment in the raising and lowering function of the right foot; fifty percent loss of motion in turning the right foot inward and outward; fifty percent loss of usage of the right toes; deformity to the lower third of the right leg; calcium loss in the leg bones and pain and limited motion in the lower back region; and that she was permanently disabled.

We have no difficulty in concluding that Mrs. Marmor suffered severe pain over a long period of time and has sustained permanent disability. The amount of compensation to which she is entitled for pain and suffering and permanent disability was for the jury to decide. The verdict of the jury will not be disturbed unless it appears excessive at first blush. We do not consider the verdict excessive.

The judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Espy BAILEY, Respondent.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Charles S. Cassis, Frankfort, for appellant.
    Espy Bailey, pro se.
   PER CURIAM.

This is an original contempt proceeding in this Court against respondent, an accountant, for allegedly engaging in the practice of law. The proceedings were initiated under Rule 3.530 of the Rules of this Court and after a show-cause rule was issued, the case was referred to a circuit judge sitting as a special commissioner and the matter was heard. The special commissioner found that respondent was guilty of the unauthorized practice of law but recommended the issuance of a “cease and desist” order rather than the infliction of punishment.

For many years respondent has been filing for clients with the Kentucky Board of Tax Appeals petitions for review of adverse rulings entered by the Department of Revenue. These petitions have raised questions of statutory interpretation and constitutional law. They pertained principally to legal issues rather than accounting problems. We have no doubt, as the special commissioner found, that the nature of the work performed by respondent for his clients, in the matters upon which the complaint was based, constituted the unauthorized practice of law under Rule 3.020 of this Court. That Rule provides:

‘The practice of law’ is any service rendered involving legal knowledge or legal advice, whether of representation, counsel, or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor.”

See Winkenhofer v. Chaney, Ky., 369 S.W.2d 113; Frazee v. Citizens Fidelity Bank and Trust Co., Ky., 393 S.W.2d 778; Lowell Bar Association v. Loeb, 315 Mass. 176, 52 N.E.2d 27; People ex rel. Chicago Bar Association v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 111 A.L.R. 1; Chicago Bar Association v. United Taxpayers of America, 312 Ill.App. 243, 38 N.E.2d 349; Agran v. Shipiro, 127 Cal.App.2d Supp. 807, 273 P.2d 619.

Respondent is apparently so impressed with his legal ability that he not only failed to employ his own counsel in this proceeding but declined to have counsel appointed for him. His brief in this Court constitutes an attack on the legal profession and purports to raise legal questions which properly should be presented by a person licensed to practice law.

The special commissioner was of the opinion that respondent was innocent of the charges against him because he did not know he was engaging in the unauthorized practice of the law. Our review of the record convinces us that his continuing conduct did not so much stem from lack of knowledge as from his forthright determination to attend to all matters in which he felt himself qualified, regardless of whether he was engaging in legal controversies which actually constituted the practice of law. We do not think a simple notice would sufficiently impress respondent with the unauthorized nature of his conduct.

Respondent, Espy Bailey, is hereby adjudged in contempt of court for the unauthorized practice of law and a fine of $100 is hereby imposed, but the payment of said fine is suspended until further order of this Court. Respondent shall pay the costs of this proceeding.


text:
    Catherine LOGAN etc., Appellants, v. Dulaney LOGAN et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.

      Richard C. Oldham, Dorothy G. Cox, Oldham, Burroughs & Miller, Louisville, for appellants.
    Stuart A. Handmaker, Milliken, Hand-maker & Rosenstein, J. Royden Peabody, Jr., Stites, Peabody & Helm, Alfred J. Simon, Jr., Louisville, for appellees.
   HILL, Judge.

The judgment appealed from vitiated certain restrictions pertaining to 200-foot setback requirements from Arden Road in the city of Louisville, Kentucky, contained in two deeds dated 1912 and 1915. The judgment reasoned that there had been such change in the neighborhood, from a re-division of the land on one side of Arden Lane and a subdivision of the land on the other side, as to neutralize the benefits of the restrictions and render it unreasonable and impractical to carry out the original purpose and intention of the parties imposing the restrictions.

This action was filed by appellees.

The tract of land, containing approximately thirty acres and now owned by the fourteen appellees and two appellants, was conveyed December 23, 1912, by Peter Lee Atherton to Charles P. Ballard by a deed containing the following reservation.

“No buildings shall be erected within two hundred feet of either side of the aforesaid Arden Road, and no buildings except residences and those of the character of arbors, or other like structures designed chiefly for ornament, shall be erected within five hundred feet of either side of the road.” (Emphasis ours.)

It should be kept in mind that at the time this deed was executed, Peter Lee Atherton owned land immediately across Arden Road. Hence, the restriction was intended to apply to and for the benefit of the land sold and the land of Atherton on the “other side of said road.”

Charles T. Ballard conveyed the thirty-acre tract to William B. Allen in 1915. By consent of both parties to this deed, Peter Lee Atherton joined as a party grantor therein for the sole purpose of modifying the setback restrictions in the 1912 conveyance. The 1915 modification reduced the 500-foot restriction of the 1912 deed to approximately 200 feet. The following is quoted from the 1915 deed:

“The third party (Atherton) joined in this deed for the purpose of altering restriction Number 3 contained in said deed and described above * * * and in lieu thereof the following restrictions are placed upon the property hereby conveyed and upon the property of the third party (Atherton) abutting on the ‘Arden Road,’ which restrictions shall inure to the benefit of the feaid second and third parties and their successors in title * * (Emphasis ours.)

There were other restrictions in these two old deeds, but they have been abandoned and are unimportant here.

In 1927, William B. Allen conveyed the identical tract to George Wilcox, and Wilcox divided the original boundary into three tracts.

The three tracts thus created passed through various owners until 1935 when all three tracts were purchased by Dulaney Logan. The restrictions mentioned above were carried in all the deeds down to Du-laney Logan.

Though it is perhaps immaterial to the issues in this case, in December of 1962 all the parties herein, except appellant Zack Logan and his wife, joined in an agreement to further modify the original restrictions to provide for a setback distance (from the center of Arden Road) of only one hundred fifty feet. This was done at the request of the persons owning property across Arden Road from the tract here involved.

In his findings of fact and conclusions of law, the chancellor found that: “Insofar as a change within the area in question is concerned the mere breaking up of this plot of ground into five parcels is evidence per se of a change.” It was further found that: “The restrictions * * * were vitiated by natural changes and human failure” at the time Dulaney Logan acquired title to the entire boundary.

At the time Dulaney Logan acquired the whole tract, he had a right to terminate all restrictions contained in the prior deeds subject to the right of protest of the successors in title of Peter Lee Atherton owning the land “across” Arden Road from the subject property; but they are not parties or complaining herein. See 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, section 271, page 829.

Beginning in 1939, when Dulaney Logan first sold Lot Number One of the original tract, he caused to be inserted in each deed a reference to and adoption of the restrictions in the deeds of 1912 and 1915, but he contends this was a mechanical procedure incident to copying the description from previous deeds. He did not adopt the setback restrictions in all the deeds he made to portions of the original tract. In fact, in one of those deeds to appellants’ predecessor in title, he included this language: “Provided, however, that there is excepted from the foregoing covenants and warranties of title any reservations, stipulations, easements, and agreements of record affecting said property.” This is some evidence that Dulaney Logan intended to discharge the restrictions as to the original tract. But the greater weight of the evidence favors a continuation of the restrictions.

The conclusion of the chancellor that the acquisition of the entire original tract by Dulaney Logan constituted a merger of the lands benefited and burdened resulting in an automatic discharge of the restrictions is a doubtful conclusion. Rieger v. Wessel, Ky., 319 S.W.2d 855 (1958).

In his finding of fact and conclusion as to the applicable law, the chancellor found there had been a change in the character of the neighborhood sufficient to abrogate the restrictions. The rule of law relative to this proposition was stated in Bagby v. Stewart’s Ex’r, Ky., 265 S.W.2d 75 (1954) as follows:

“A change in the character of the neighborhood which was intended to be created by restrictions has generally been held to prevent their enforcement in equity, where it is no longer possible to accomplish the purpose intended by such covenant.”

See also Goodwin Bros. v. Combs Lumber Co., 275 Ky. 114, 120 S.W.2d 1024 (1938).

The facts and circumstances must be examined to determine whether the change of the character of the neighborhood is sufficient to vitiate the restrictions; or, to state the question in other terms, whether the “scheme of development” contemplated by the restrictions has been abandoned sufficiently to operate ipso facto as a vitiation of the restrictions.

It is clear from the evidence of the architects and realtors testifying that a great change has taken place in the neighborhood insofar as large tracts are required for residence construction. What was originally one thirty-acre tract is now subdivided into at least five smaller tracts. The land “across Arden Road” has been subdivided into small tracts and lots in disregard of the restrictions in question. So far as we know, there has been no objection by appellants or anyone else to the change in the “general scheme of development” of the land across Arden Road.

Furthermore, there were three restrictions in the original deeds. Two were restrictions requiring certain fencing and the preservation of a spring, and the third a “reciprocal negative restriction” requiring structures to sit back from Arden Road. The first two restrictions have been ignored, and the spring is dry. The affirmative restrictions, of course, are not as important as the negative one, but their disregard by all parties down through the years is some evidence that the negative restrictions may be treated likewise.

It is concluded that the evidence of a change in the neighborhood, as well as the change within the original tract by its subdivision, supports the finding of the chancellor. His findings will not be disturbed unless clearly erroneous. CR 52.01.

We think there has been a change of such character that it clearly neutralizes the benefits of the restrictions to such an extent as to defeat their original purpose.

The judgment is affirmed.


author: WALKER, Justice.

text:
    COMMUNITY SAVINGS AND LOAN ASSOCIATION, Petitioner, v. R. L. FISHER et ux., Respondents.
    No. A-11429.
    Supreme Court of Texas.
    Oct. 19, 1966.
    Rehearing Denied Dec. 31, 1966.

      Raymond Kneese, Fredericksburg, Bryce A. Taylor, Burnet, Moursund & Ferguson, Johnson City, for petitioner.
    Harold Kennedy, Austin, for respondents.
   WALKER, Justice.

This is an action for a declaratory judgment to determine the balance unpaid on a promissory note. There is no dispute as to the dates and amounts of the payments that have been made, and the case turns upon the rate of interest and the manner in which the same accrues and is payable under the terms of the loan instruments.

On June 23, 1960, R. L. Fisher and wife, respondents, borrowed $7,200.00 from Fred-ericksburg Savings and Loan Association, now Community Savings and Loan Association, petitioner. As evidence of the indebtedness, they executed to petitioner their note in the face amount of $10,800.00 and secured the same by a deed of trust on real estate in Burnet County. The material provisions of the note are as follows:

“$10,800.00 Fredericksburg, Texas, June 23, 1960
“* * * pay to the order of Fred-ericksburg Savings and Loan Association * * * the sum of TEN THOUSAND EIGHT HUNDRED AND NO/100 ($10,800.00) DOLLARS, which includes interest for the stated period, in 120 monthly installments as follows:
“$90.00 on the 1st day of August, 1960, and the same amount on the same day of each succeeding month thereafter, except that the final payment shall be the unpaid balance then due on the note * * *. In event of prepayment of the entire balance before maturity, the holder agrees to credit to said note all unearned interest, however, there will be a prepayment expense charge not to exceed $75.00.
“ * * * Interest included in the face amount of this note not earned at the date of acceleration shall be cancelled and credited upon this note. The holder hereof shall never be entitled to receive or collect interest at a rate in excess of ten per cent per annum on the principal indebtedness * * *
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“The original net amount of this note is $7,200.00.”

The deed of trust provides that the monthly payments on the note shall be applied: first, to the liquidation of any incidental expenses representing a part of the loan; next, to insurance premiums, taxes and assessments against the property; and “then regularly to the interest on the unpaid balance and the remainder to principal until said note is paid in full.” No rate of interest was specified in either the note or the deed of trust. As part of the transaction in which these instruments were executed and the proceeds of the loan disbursed, petitioner furnished respondents a loan closing statement which reads, in part, as follows:

“We submit herewith for your information the terms of the loan, and the expenses thereof, whether charged to you by the association, or paid for you by the association.
“Loan No._ Amount $7,200.00 Rate of Interest Disc - 5%
“Each monthly payment of $90.00 plus 1/12 annual taxes and 1/12 annual hazard insurance is due the 1st day of each month, beginning on August 1, 1960.”

The loan was made for petitioner by one of its officers, Reuben Eckhardt. He stated that the $3,600.00 interest added to the face of the note was computed by charging 5% of the original $7,200.00 principal for each of the ten years the loan would have been outstanding if it ran to maturity. According to his testimony, the term “Disc - 5%” appearing on the loan closing statement means that interest calculated in this manner has been added to the face amount of the note. Respondent R. L. Fisher was told that he would be made a five per cent discount loan, but he did not know the difference between that type of loan and one in which the stated percentage represents the effective interest rate.

Respondents notified petitioner that they wished to pay the balance of the note on October 1, 1964. At that time the loan had run 51 months, and respondents had paid a total of $8,584.93 on the note. They concluded that the earned interest would be 5% per annum on $7,200.00 for 51 months, or a total of $1,530.00. On this basis the unearned interest amounted to $2,070.00, and the balance unpaid on the note was $145.07. This amount plus the $75.00 prepayment charge was tendered to petitioner as constituting full payment of the note.

By the use of its tables prepared for that purpose, petitioner determined that the unpaid principal balance of the loan was $874.-09. On the basis of this figure, with adjustments for the September interest, the prepayment fee, and the balance held in escrow to pay taxes and insurance, the amount required to retire the loan was $800.29. When petitioner insisted upon payment of that amount, respondents instituted the present suit. The trial court adopted respondents’ theory as to the proper method of determining the unearned interest and entered judgment accordingly, and the Court of Civil Appeals at Austin affirmed. 400 S.W.2d 927.

The intermediate court held that the unearned interest should he computed on the same basis as the amount of interest included in the face of the note was calculated at the inception of the loan. We have jurisdiction under Subdivisions 2 and 3 of Article 1728. The construction of Article 5070 is necessary to a determination of the case, and the above mentioned holding of the Court of Civil Appeals is in conflict with the decision of the Court of Civil Appeals at Amarillo in American Nat. Ins. Co. v. Schenck, Tex.Civ.App., 85 S.W.2d 833 (no writ).

Respondents argue that the rights of the parties are governed by the “rate of interest” set out in the loan settlement statement. They suggest that if this is not so, then no rate of interest has been specified and petitioner is entitled to charge six per cent per annum under the provisions of Article 5070. We do not agree. Respondents may well have been misled by the loan settlement statement, but there is no claim of fraud and no effort to obtain equitable relief. While the statement purports to set out the terms of the loan, it is not contractual in nature and not a part of the integrated loan contract represented by the note and deed of trust. Its recitals may be considered with the other surrounding circumstances in construing the agreement, but the rights and obligations of the parties must be determined from their contract. In this instance there is no ambiguity or doubt as to the legal effect of the note and deed of trust, and the same may not be added to or varied by expressions found in the contemporaneous but extrinsic writing. See McCormick and Ray, Texas Law of Evidence, 2nd ed. 1956, § 1601.

The note in Schenck contained no provision for rebating interest upon acceleration of maturity and no stipulation that the holder would never be entitled to interest in excess of ten per cent per annum, but was similar in all other material respects to the note involved in the present case. The plaintiff there contended on appeal that, independent of the acceleration of maturity provisions, the interest contracted for over the full term of the loan was more than ten per cent per annum. The Court of Civil Appeals first pointed out that this position had not been taken in the court below, and that on appeal the parties are restricted to the theory on which the case was tried. It then proceeded to discuss the contention, evidently for the guidance of the trial court upon remand and in connection with its holding that the exclusion of certain testimony was erroneous. The following portion of the opinion is relevant here:

“ * * * In cases of this character, where interest is included in the face of the note and it is to be discharged by partial payments made at stated intervals, the rule for computing the interest and applying the payments is announced by the Supreme Court to be as follows: ‘When partial payments are made, interest is to be computed to the time when a payment alone, or in conjunction with preceding payments, shall equal or exceed the interest due. Then deduct the payment and calculate the interest on the balance until the next payment or payments as before, and so on.’ Odle v. Frost, 59 Tex. 684; Hampton v. Dean, 4 Tex. 455; Hearn v. Cutberth, 10 Tex. 216; Clark v. Brown, 48 Tex. 212.
“The rate of interest which the makers should pay in discharging the note is not stated either in the face of the note or in the mortgage securing same, but the amount of principal, together with the amount of interest and amount of payments necessary to discharge the indebtedness, being shown, a • calculation discloses that interest was charged at the rate of eight and a fraction per cent, per annum. The testimony bearing upon this issue was excluded, and we think this action of the court is error.”

When the parties do not agree otherwise, partial payments on an interest-bearing obligation are ordinarily applied first to accrued interest and the balance to principal. Each succeeding payment is credited in a similar manner with the interest computed on the balance of the principal remaining unpaid. This is the so-called United States rule, which is recognized in Texas. See Tooke v. Bonds, 29 Tex. 419; J. I. Case Co. v. Laubhan, Tex. Civ.App., 64 S.W.2d 1079 (no writ); 30 Am.Jur. Interest § 49; 47 C.J.S. Interest § 66; and authorities cited above. The rule is applicable to an add-on note payable in monthly installments such as we have in the present case, and in this instance the parties so stipulated in the deed of trust.

Here the interest charge is part of the face amount of the note, and the rate of interest is not stated in the loan contract. Under these circumstances the true interest rate must be determined by calculation. It is that percentage which, when applied to each monthly balance of the principal will, upon crediting the payments in accordance with the rule stated above, result in complete amortization of the $7,200.00 principal advance and the $3,600.00 interest charge in 120 monthly payments of $90.00 each as agreed by the

parties. See Ustick v. Jones, 130 Tex. 620, 112 S.W.2d 703; Braniff Inv. Co. v. Robertson, 124 Tex. 524, 81 S.W.2d 45, 100 A.L.R. 1421; Bohannan v. First Nat. Bank in Dallas, Tex.Civ.App., 85 S.W.2d 989 (wr. ref.); Federal Mortgage Co. v. Davis, Tex.Civ.App., 100 S.W.2d 717 (affirmed, Davis v. Federal Mortgage Co., 131 Tex. 46, 111 S.W.2d 1066). Where all of the essential terms have thus been stated and determination of the rate of interest is merely a matter of calculation under applicable rules of law, this constitutes an agreement for a “specified rate of interest” and Article 5070 has no application. The note in the present case stipulates that the final installment shall be the balance unpaid, but that provision is to be disregarded in computing the interest rate.

The witness Eckhardt testified that petitioner determined the unearned interest by the sum of the digits method and with the use of standard tables. He also explained that:

“This is a method whereby it closely resembles simple interest. In other words, when your loan balance is raised, higher percentage of interest is returned; as your principal decreases, interest decreases, and it is figured according to the number of years the loan has to run. Each number of years has a separate chart we go by.”

Neither the trial court nor the Court of Civil Appeals was given any further explanation of the sum of the digits method, and the tables referred to by the witness were not introduced in evidence. The sum of the digits or direct ratio method is based upon a false assumption and yet produces a result that is quite close to the true interest rate determined in accordance with the rules set out above. According to one authority, the two figures “would be interchangeable for all practical purposes except in financial transactions in which very-large amounts are involved.” Neifeld’s Guide to Instalment Computations, p. 183, 190.

Petitioner has now calculated the true interest rate on the note in this case at 8.69 per cent per annum. Our computations based upon interest tables yielded substantially the same result. See Lake’s Monthly Installment and Interest Tables, 5th ed. 1949, p. 219. The rate determined by the sum of the digits formula is 8.52 per cent per annum, which is somewhat more advantageous to respondents than the true rate. See Neifeld, supra, p. 185. Attached to the application for writ of error is a schedule prepared by petitioner showing that when interest is charged at the rate of 8.69 per cent per annum, 120 monthly payments of $90.00 each will amortize a loan in the original principal amount of $7,200.00. When unearned interest is credited in accordance with this schedule, the amount necessary to liquidate respondents’ loan as of October 1, 1964, was slightly more than the amount demanded by petitioner. It thus appears as a matter of law that the trial court erred in failing to render judgment on the basis of petitioner’s figures, but those figures are now subject to adjustment for interest accruing after October 1, 1964, and any other debits or credits properly made to the account subsequent to that date.

Although respondents argue to the contrary, they are not entitled to have earned interest computed on the balance of the principal remaining unpaid from time to time after their advance payments are credited thereon. The monthly installments on the note are not payable “on or before” the stipulated maturity dates, and the only prepayment privilege is with respect to the entire balance of the note.

The judgments of the courts below are reversed, and the cause is remanded to the district court.

ON MOTION FOR REHEARING

In their motion for rehearing, respondents point out that while they had no legal right to pay the monthly installments on the note in advance, the association has accepted partial payments made prior to maturity. They insist that each payment so made should be credited in accordance with the so-called United States rule, and that interest would thereafter accrue only on the principal balance remaining unpaid. No decisions bearing directly on this question are cited by either party, and we have found relatively few.

The bond in Spires v. Hamot, 8 Watts & S. 17 (Pa.1844), was payable “on or before” ten years after date with lawful interest, but the fact that the debtor had the right to make payments in advance of maturity apparently was not regarded as significant. In holding that advance payments should be applied first to accrued interest and the remainder to principal, the court said:

“A creditor may refuse to receive the principal before it is due, or a part of it when due, except on his own terms; and were he to receive it as a payment bearing interest, it would, in effect, be a loan. But if he receive it unconditionally, the residue applied to the principal, after payment of the interest, stops interest on the principal pro tanto.”

In Jencks v. Alexander, 11 Paige’s Ch. 619 (N.Y.1845), the principal of the note was payable in five equal annual installments, and the interest was also payable annually. The following rules were announced for crediting payments made in advance of maturity :

“ ⅜ * * where principal is not due, but interest is due, the payment must be applied to the extinguishment of the interest then due and payable, and the residue to the extinguishment of that part of the principal which will first become due; so as to stop the interest, pro tanto, from the time of such payment. But where neither principal nor interest has become due at the time of the payment, such payment, in the absence of any agreement as to the application, is to be applied to the extinguishment of principal and interest, rateably; according to the decision of the supreme court in the case of Williams v. Houghtaling [& Bevier], (3 Cowen’s Rep. 86).”

The situation of the parties is somewhat different where interest has been paid in advance or included in the face amount of the note. In Skelly v. Bristol Savings Bank, 63 Conn. 83, 26 A. 474, 19 L.R.A. 599, the note was payable on demand and stipulated that interest would be paid semi-annually in advance. It was held that full payment of the principal prior to the date to which interest had been paid did not entitle the debtor to recover the unearned interest. The court pointed out that there was no express promise to return unearned interest, and concluded that such a promise could not fairly be inferred under the circumstances.

In Pool v. First Nat. Bank of Princeton, 287 Ky. 684, 155 S.W.2d 4, the first year’s interest was included in the face of the note. The note was payable one year after date with interest from maturity, and payments were made thereon before the note was due. • The maker claimed that he was entitled to a rebate of interest on the amount of each payment from the date of such payment to the due date of the note. This claim was denied, and the court said:

“It will be assumed that the loan would not have been made had it not been for an agreement on the part of the debtor to pay the exact amount of interest recited in the contract, and, the parties having entered into a specific contract to that effect, the court will not make a new contract for them. Especially is it true where the debtor includes the amount of the interest in the face of the note, thus merging the interest with the principal and designating it for all purposes to be a part of the principal.”

Interest was included in the face amount of the note in the present case. According to the terms of the instrument additional interest was to accrue only after maturity. Respondents unconditionally promised to pay 120 monthly installments of $90.00 each, and the only stipulation for rebate of interest is in the event of prepayment of the entire balance of the note. The parties thus expressly dealt with the effect of advance payments upon the interest included in the note, and made no provision for any rebate in the event of partial payments prior to maturity. It is our opinion that in these circumstances such partial payments do not entitle respondents to a rebate of interest.

The motion for rehearing is overruled. Respondents will have fifteen days from.this date within which they may file another motion for rehearing if they so desire.

      . All statutes are referred to by the article number under which they appear in Vernon’s Annotated Texas Civil Statutes.

      . Article 5070. When no specified rate of interest is agreed upon by the parties, interest at the rate of six per cent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.


author: WOODLEY, Judge. MORRISON, Judge. MORRISON, Presiding Judge.

text:
    Edgar Nolin NEELY, Appellant, v. The STATE of Texas, Appellee.
    No. 38627.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1966.
    On Rehearing May 18, 1966.
    Rehearing Denied Nov. 16, 1966.

      Pearson Grimes, Butler, Binion, Rice, Cook & Knapp, Tom Alexander, Jonathan Day (on rehearing), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is negligent homicide in the first degree; the punishment, a fine of $300.

Trial was before the court on a plea of not guilty.

The complaint and information alleged that appellant, engaged in the lawful act of driving a bus on a public road, caused the death of Jack Seals by causing his motor vehicle to collide with an automobile, thereby causing said automobile to collide with a pickup truck driven by Jack Seals whose death was caused by appellant’s negligence in that he “failed to guide his motor vehicle away from the said automobile; (2) failed to keep a proper lookout for the said automobile, which automobile he could have seen had he been looking in the direction he was going; (3) failed to keep his motor vehicle under proper control by reason of its operation at a greater rate of speed than was reasonable and prudent under the conditions then existing.”

The statement of facts reveals evidence sufficient to show that appellant was driving a bus on Tidwell Road in Houston; that ahead of him traveling in the same direction was an automobile driven by Mrs. Hoffpauir.

Mrs. Hoffpauir stopped at an intersection intending to make a left turm Appellant tried to stop his bus behind her but failed.

The bus hit the rear of the automobile knocking it into the path of a pickup truck driven by Jack Seals, which was traveling in the opposite direction.

Qifford Rainer, ambulance driver, testified that he made a call to the scene; found the person identified as Jack Seals in the pickup. He testified in part:

“A. It took about — probably—maybe ten minutes or a little more to get him out of the truck there. He was tangled up around the brake pedal and his legs up around the brake pedal and steering.
“Q. Did you see if he had some injuries in the collision?
“A. He was complaining of his chest.
“Q. And you took him to which hospital?
“A. North Houston.
“Q. All right, sir. There was no accident in which your vehicle was involved proceeding from that location — between there and the hospital, was there?
“A. No.
“Q. All right, sir. When you arrived there at the hospital, what was the condition of the occupant of that automobile at that time?
“A. He was still complaining quite a bit of — -about his chest there.
“Q. Were you present at the hospital when he was pronounced dead?
“A. Yes.”

All of the bills of exception relied upon by appellant concern the testimony of Doctor Joseph Jachimczyk, Chief Medical Examiner for Harris County. He testified that he had the care, custody and control of the records of autopsies or pathological diagnoses by persons in his employ, including Dr. Robert Bucklin; that he had with him the records of a pathological diagnosis which indicated that Associate Medical Examiner Robert Bucklin performed the autopsy upon the deceased, Jack Dempsey Seals. Over objection that it was hearsay and a conclusion upon hearsay, Dr. Jachim-czyk testified that though he did not see the body, the examination was made under his supervision and direction and he reviewed the record with Dr. Bucklin, his assistant.

He was permitted to testify that the cause of death was the result of a crushed chest and abdomen, and testified: “The autopsy report states that the individual was pronounced dead on arrival at the North Houston Hospital at 7:25 A.M. on March 19, 1964. * * *

“Q. All right sir. And I believe you testified that the cause of death as indicated by the report was a crushed chest and abdomen?
“A. That is right.”

Dr. Jachimczyk’s qualifications as a physician and pathologist were stipulated as was the death of Jack Seals.

We do not agree that the court erred in admitting the testimony. Leonard v. State, 161 Tex.Cr.R. 470, 278 S.W.2d 313 supports the court’s ruling.

As we view the record, the witness was not testifying to the expert opinion of his assistant, rather than his own conclusion based upon the record of the autopsy.

Even so, there was sufficient evidence otherwise to support a finding that the death of Jack Seals resulted from the accident and the state was not bound to show the exact nature of the injuries which caused his death. -

Trial being before the court it will be presumed that any evidence improperly admitted was disregarded.

Hubbard v. State, 167 Tex.Cr.R. 379, 320 S.W.2d 835, cited by appellant, involved a conviction for negligent homicide while engaged in the unlawful act of driving a truck at an unlawful rate of speed. No other negligent act or omission was alleged and there was nothing in the record to suggest that the car in which the deceased was a passenger would not have struck the car driven by Hubbard had he been driving at a lawful speed.

In the case before us unlawful speed was not in itself the negligent act relied upon and the information alleged that appellant was engaged in the lawful act of driving a bus on the highway.

Metcalf v. State, 171 Tex.Cr.R. 269, 347 S.W.2d 618, cited by appellant, was a case of negligent homicide in which unlawful speed was the unlawful act as well as the negligent act relied upon, and the evidence was found insufficient to show that unlawful speed caused the accident.

Other cases cited by appellant are aggravated assault cases and have no application in the case before us.

Viewed in the light most favorable to the court’s judgment, we find the evidence sufficient to sustain the conviction.

The judgment is affirmed.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

The State has called our attention to the fact that the opinion of the majority on appellant’s motion for rehearing is in conflict with the opinion of this Court in Viser v. State, Tex.Cr.App., 396 S.W.2d 867. After due consideration we have concluded that the State is correct.

Our opinion on appellant’s motion for rehearing, together with Judge Woodley’s dissent thereto, is withdrawn; the State’s motion for rehearing is granted; the judgment of reversal is set aside, and the judgment is affirmed.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

Appellant’s motion for rehearing is overruled. Kindell v. State of Texas, Tex.Cr.App., 407 S.W.2d 784.


author: CHAPMAN, Justice.

text:
    LINCOLN INCOME LIFE INSURANCE COMPANY, Appellant, v. Ella ANDERSON et vir, Appellees.
    No. 7658.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1966.
    Rehearing Denied Dec. 19, 1966.

      Crenshaw, Dupree & Milam, Lubbock, Joe H. Nagy and Cecil Kuhne, Lubbock, of counsel, for appellant.
    Wagonseller & Cobb, Lubbock, Robert L. Stogner, Lubbock, of counsel, for appellees.
   CHAPMAN, Justice.

This is an appeal by Lincoln Income Life Insurance Company from a judgment based upon a jury verdict for Ella Anderson, et vir, mother-in-law of deceased insured, Judy Dedrick, upon an insurance policy insuring the life of the latter person. Suit was for the face value of the policy of $1,000 and for statutory penalty and reasonable attorney’s fees. Ella Anderson was the beneficiary in the policy.

The policy provided: “This policy shall be voidable by the company if on its date of issue the insured is not in sound health; * * *»

In the only issue submitted, the jury found that the deceased, Judy Dedrick, was in sound health on November 11, 1963, the date of the issuance of the policy. Reversal is urged on grounds of no evidence; weight and preponderance of the evidence; admission of testimony of lay witnesses that deceased was in sound health at the time of the issuance of the policy; and admission of testimony of Dr. Stettner that contradicted the testimony of the treating osteopathic physician concerning the question of the sound health of deceased.

As we understand the record deceased had been married to Emmett Dedrick, son of Mrs. Anderson, for four or five years before her death and two children had been born as a result of such union. She was sixteen years of age at the time of the birth of the first child in 1961 and the Methodist Hospital records in Lubbock show at the time of such confinement, under “Maternal Complications” the words, “Anemia, sickle cell.” In another record from the hospital appear the words, “Anemia to sickle cell disease” and on the same page, “Sickle cell anemia.” On another page of the hospital records appear the words, “Small number of sickle cells seen.” Still another record shows a diagnosis of “Pneumonitis and sickle cell anemia.”

The records show a second child was born to the union approximately a year after the first, since their ages at the time of trial were given as three and four. For a period of time the couple was separated and deceased lived in Amarillo. They never divorced, later resolved their differences, and were living together at the time she was admitted to Porter Clinic Hospital, an osteopathic institution, where she died on September 22, 1964, after twelve days of treatment. Her treating physician was Dr. F. O. Harrold, an osteopathic physician. The certificate of death signed by Dr. Harrold shows: “Immediate Cause (a) Renal hemorrhage due to (b) sickle cell anemia.”

It also appears from the record that during the time deceased was separated from her husband and living with a sister in Amarillo she had a kidney removed.

We relate the above facts because of their materiality in connection with the testimony of Dr. Stettner to be hereinafter related.

Dr. Harrold, a general practitioner of osteopathy, testified for appellant. His qualifications show a D. O. degree resulting from a three-year course in the College of Osteopathic Medicine and Surgery in Des Moines, Iowa, with no legitimate internship, apparently not required at the time he started his practice in his profession. He testified that from the Methodist Hospital records and from his examination and treatment of deceased it was his opinion that she was not in sound health on November 11, 1963. He also testified that sickle cell anemia is a hereditary blood disease that appears almost exclusively in the Negro race within the United States and is found in about two-tenths of the Negro population.

Dr. Stettner testified for appellee. His background of training is very impressive. He received his Bachelor of Science degree from College of the City of New York in 1942, his Master of Science degree in biochemistry from New York University in 1948 and his D. O. degree from Still College of Osteopathy and Surgery in 1955. He taught biochemistry and physiology in New York Medical College in New York from 1946 to 1948. He was the clinical biochemist in charge of all laboratories in the Good Samaritan Hospital in Dayton, Ohio, and while in the School of Osteopathy operated the clinical laboratories of the Des Moines Still Hospital. He did his internship at Dallas Osteopathic Hospital from 1955 to 1956. At the time of this trial he was chief of the medical staff at Lubbock Osteopathic Hospital. He belongs to numerous osteopathic societies, owns a medical library of approximately 1,000 books, and periodically attends seminars and institutes to keep himself abreast of the latest developments in his profession. His testimony is too extended to quote, but in substance he directly contradicted the testimony of Dr. Harrold on the material question under consideration.

He testified that sickle cell anemia, sickling trait and sickle anemia refer to red blood cells in the blood stream and that sickling is a phenomenon that can be artificially produced; that one may have sickle anemia and sickle traiting and not have sickle cell anemia; might have sickle cell anemia in November 1961 and in November 1963 have sickle traiting only; then in September 1964 have sickle cell anemia again.

Dr. Stettner further stated that it would be extremely rare for a doctor to see even one patient in a lifetime dying of sickle cell anemia; that it is not a deadly disease such as cancer and that in effect it is fatal only in connection with some other ailment. Significantly, the doctor testified there is no connection between renal hemorrhage on one hand and sickle cell anemia on the other and that the latter cannot cause the former, a direct refutation of the certificate of death.

Then after checking the Methodist Hospital records of blood tests, etc., Dr. Stettner testified definitely that in his opinion they did not show deceased had sickle cell anemia in 1961; that it is essentially a pediatric disease and it is not ordinary that a woman nineteen years of age who has previously given birth to two children would die of sickle cell anemia. He testified that if she had sickle cell anemia in 1961 that was not treated, the chances are that she would not be walking around in 1963; that a kidney removed was no indication that she had the subject disease and that such surgical procedure would have been bad practice for one with the ailment. He then testified positively that in his opinion deceased did not have sickle cell anemia in 1963.

Two lay witnesses, one who was in school with Judy Dedrick, testified in effect that she appeared healthy to them and Mrs. Anderson testified while she was married to her son she worked as a maid and did other type physical labor that constituted “hard” work.

The testimony shows a salesman came to the house to sell the subject insurance policy; that appellee already carried a policy with the company and that he sold policies to other members of the family in addition to Judy Dedrick. Her husband testified that when the salesman, G. Garza, came to their home and sold the policy Judy was in good health and that except for the times when she could not work because of pregnancy or childbirth she worked fairly regularly at maid work and never complained of being unable to do the work. The testimony of her husband was given in the record without objection.

It is our opinion that the above testimony presented a controverted issue of fact to be determined by the jury as to the sound health of Judy Dedrick at the time the policy was issued and that the verdict of the jury was not against the great weight and preponderance of the evidence.

We believe the two cases cited in Footnote 1 are also decisive of the right of lay witnesses to testify to facts from which sound health could be found by the jury. The Coxson case involved an insured with pulmonary tuberculosis and the Vann case a carcinoma of the uterus. In each case where lay witnesses were similarly situated so as to observe the insured’s action, work and behavior as the lay witnesses were to deceased in the instant case, the Supreme Court of Texas held their testimony was admissible. We would be disinclined to hold from the lay testimony alone in this case that there is sufficient probative evidence to support the submission of the issue and the verdict and the judgment in the case. However, in addition to the lay testimony of the sound health of deceased at the time the policy was issued, we have all the testimony of Dr. Stettner. It was contrary to that of Dr. Harrold, which created a fact issue, and we believe the jury had the right to give weight to the superior background of training of Dr. Stettner and to the supporting evidence of lay witnesses. Dr. Stettner also interpreted the hospital records as not showing the deceased had the subject disease in 1961 and none of the M. D.’s who made the records were used as witnesses to contradict him.

Appellant asserts by brief that there is not any testimony by Dr. Stettner that raises a fact issue of the insured’s good health on November 11, 1963. We do not agree. Based on the records from the Methodist Hospital, her history of physical activity, her motherhood history, and the certificate of death from renal hemorrhage, from which he stated sickle cell anemia had no relationship whatever, he testified positively that in his opinion she did not have sickle cell anemia at the time of the issuance of the policy. When this testimony, together with that of the lay witnesses is considered, we believe it constitutes sufficient evidence to support the jury verdict and is not against the great weight and preponderance thereof in view of the fact that the only evidence contradicting her sound health at the time was that she was a victim of the subject disease. Neither the jury nor this court being trained in medicine, we must depend upon the admissible expert testimony where such testimony is considered. Despite appellant’s contention to the contrary, we consider Dr. Stettner’s testimony was admissible. The jurors had the right to believe him and disbelieve Dr. Harrold, they being the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. When Dr. Stettner’s testimony is added to that of lay witnesses, it is persuasive as to the insured’s sound health at the date of the issuance of the policy in question.

We are not unmindful of the many cases appellant has cited for its contention of reversible error. We have carefully studied all of them with supreme judicial sanction and find them easily distinguishable on the facts from the instant case.

The judgment of the trial court is affirmed.

      . Coxson v. Atlanta Life Insurance Co., 142 Tex. 544, 179 S.W.2d 943 (1944); Vann v. National Life & Accident Ins. Co., 24 S.W.2d 347 (Tex.Com.App.1930, opinion adopted).


author: BATEMAN, Justice.

text:
    ROBY INDUSTRIES, INC., d/b/a Intercontinental Plastics Mfg. Co., Appellant, v. MAXWELL ELECTRONICS CORPORATION, Appellee.
    No. 16798.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 4, 1966.
    Rehearing Denied Dec. 9, 1966.

      Emil Corenbleth and Harold B. Berman, Dallas, for appellant-appellee.
    Atwell, Grayson & Atwell and Anthony Atwell, Clark J. Matthews, II, Dallas, appellant-appellee.
   BATEMAN, Justice.

This suit was brought by Roby Industries, Inc., doing business as Intercontinental Plastics Manufacturing Company, against Maxwell Electronics Corporation for debt. As both parties appeal from the judgment rendered, we shall for convenience refer to them in this opinion as “Roby” and “Maxwell”.

Maxwell had contracted to furnish to the Federal Aviation Agency a quantity of electronic devices known as “transceivers” and also as “walkie-talkies”, each of which was a compact radio transmitter and receiver. Maxwell was equipped to manufacture the electronic equipment included in the device, but not the plastic case enclosing it. It made a written subcontract with Roby by which the latter agreed to manufacture a mold for the making of the plastic cases, and also to furnish the necessary quantity of cases therefrom. Item 1 of the subcontract obligated Roby to furnish 1500 of the plastic cases, according to a certain delivery schedule, at an agreed price of $.696 each, or a total of $1,044, which was subsequently enlarged by agreement to 1700 cases at a total price of $1,183.20. Item 2 obligated Roby to furnish the mold or “tooling” for the cases by May 15, 1963, for an agreed price of $9,625, later increased by agreement to $10,124.50. The subcontract further provided that time was of the essence as to all provisions thereof, and that in the event of deliveries after the scheduled delivery dates the prices of all items shall be reduced by one per cent for each calendar day of delay.

The subcontract also provided that Roby had the sole responsibility of designing the cases to the complete satisfaction of Maxwell, and that Roby would submit to Maxwell for approval all drawings, sketches and proposed specifications thereof. It further provided: “Seven days shall be allowed for such submission and approval in order to insure delivery of order on time. Should disapproval of submission delay final acceptance of prints and specifications within seven days, the delivery date of May 15 shall be extended by an equal amount of calendar days beyond the seven days originally specified, without penalty.” Also that if Maxwell’s inspection of a sample of material furnished to it disclosed defects in excess of a certain allowable percentage the entire lot may be rejected and returned to Roby “or 100% screened by Purchaser with cost of screening billed to the Seller.”

Roby sued on three alternative causes of action: (1) on sworn account in the sum of $33,920.34 plus a reasonable attorney’s fee of $7,500 under Vernon’s Ann. Civ.St. Art. 2226; (2) on quantum meruit in the sum of $33,920.34; and (3) on the written contract mentioned above Roby did not sue for attorney’s fee under Art. 2226 in connection with either its second or third alternative cause of action.

Maxwell, alleging that the mold and plastic cases were defective and delivered later than the time specified, invoked the provision of the contract for liquidated damages for the late delivery; also for its costs and expenses in connection with its inspection and screening of defective material furnished by Roby.

It is not necessary for us to summarize all of the jury findings. The following are the material findings: (1) Roby substantially complied with the contract; but (2) was the cause of the delay in the manufacture and delivery of the plastic cases; (3) the written contract was not abandoned by the parties; (5) Roby did not deliver the plastic cases to Maxwell within a reasonable time, but (6) they were manufactured substantially according to the plans and specifications agreed upon, and (7) were reasonably suitable for the purposes for which they were manufactured; (8) $14,265 would reasonably and fairly compensate Roby for the material and services rendered to Maxwell for the mold and the cases; (9) $3,750 would reasonably compensate Roby for the services rendered to it in connection with the suit by its attorneys; (10-A) Maxwell approved or disapproved any submitted drawing of any perspective or piece part within seven days after the date of submission thereof; (12-A) Maxwell did not make or require any tooling changes after approval of the final drawings which caused Roby any delay in finishing the tooling; (18) Roby delivered the plastic cases fifty-two days in excess of the eight-week delivery schedule agreed upon; (21) defects in piece parts received by Maxwell from Roby exceeded the allowable percentage as prescribed in the contract; (21-A) Maxwell screened the piece parts delivered to it by Roby, and (21-B) expended $225 in doing so.

Contending that it appeared from the evidence without controversy that the completion of the mold under Item 2 of the subcontract was ninety days late, and the jury having found that there was a delay of fifty-two days in the delivery of the plastic cases, Maxwell moved that the court render judgment for Roby for $1,355.39, arrived at as follows:

Plastic cases, per amended contract.$ 1,183.20
Less 52 days delay at 1%. 615.26 Net due for cases .$ 567.94
Mold, per amended contract . 10,124.50
Less 90 days delay at 1%........ 9,112.05 Net due for mold. 1,012.45
$ 1,580.39
Less Maxwell’s screening expense. 225.00
$ 1,355.39

The trial court sustained this motion but added the $3,750 found by the jury to have been a reasonable attorney’s fee, making the total judgment $5,105.39.

Roby claims on appeal that the judgment is for an inadequate amount, and Maxwell claims on appeal that the judgment should not have included any attorney’s fee.

Roby’s first point of error on appeal is in reality two points. . In the first part thereof Roby contends that it was entitled to judgment for the $14,265 found by the jury in answer to Special Issue No. 8 as being the fair and reasonable value of the material and services rendered and furnished by it to Maxwell, plus the attorney’s fee of $3,750 found by the jury in answer to Special Issue No. 9, or a total of $18,015.

Of course, Roby had the right to sue on the three alternative causes of action. It has been said to be good practice to do so. Musick v. Pogue, Tex.Civ.App., 330 S.W.2d 696, 698. wr. ref. n. r. e. However, in that same case, where the evidence showed that there was an express contract between the parties, it was held that neither party could shut his eyes to the terms thereof and claim under an implied contract a larger amount than he had agreed in his express contract to accept. Under such circumstances an implied contract cannot coexist with the express contract. See the authorities cited in Musick v. Pogue, supra, 330 S.W.2d at page 699; also Neblett v. McGraw & Brewer, 41 Tex.Civ.App. 239, 91 S.W. 309, no wr. hist., and 13 Tex.Jur.2d, Contracts, § 7, pp. 119-120. The jury found, in answer to Special Issue No. 3, that the written contract had not been abandoned. Therefore, we think the court properly disregarded the finding of $14,265 in response to Special Issue No. 8, which was obviously based on the alternative plea for quantum meruit. The first part of the first point of error is accordingly overruled.

In the second part of its first point of error Roby complains that the court erroneously reduced its recovery by offsets not supported by the pleadings. Maxwell pled that it was entitled to offset its liquidated damages under the contract against the agreed prices of the mold and the cases. Concerning the mold, Maxwell pled: “The mold was not completed to the point where parts, although imperfect, were able to be run until 82 days beyond the scheduled delivery date. Thus, the agreed maximum price of $9,625.00 specified in said Purchase Order was reduced by 82%, that is, to $1,732.50.” It also alleged that the agreed price for the plastic cases was reduced by the liquidated damages from $1,183.20 to $949.52.

It appears from the undisputed evidence that on August 5, 1963 (the eighty-second day after May 15, 1963) representatives of the parties met and agreed that, although the mold was still “soft” and the production of the cases from a “soft mold” would be fraught with some danger both to the mold and to the cases, Maxwell would accept the cases provided they compared favorably with a sample furnished by Roby. This agreement was confirmed by a letter dated August 13, 1963 from Maxwell to Roby, which concluded with this sentence: “Acceptance of these 1700 cases does not constitute final acceptance of the mold as discussed and it is understood that additional work on the mold is necessary before it conforms with the requirements of our purchase order.” Pursuant to this agreement the cases were run, delivered and accepted after part of them had been rejected, reworked and redelivered. It was also undisputed that the mold was thereafter “hardened,” repaired, chromeplated and finally completed in March, 1964. It was unnecessary, and would have been improper to submit these uncontroverted facts to the jury. Rule 272, Vernon’s Texas Rules of Civil Procedure. Maxwell contends that they establish its right to liquidated damages for a delay of ninety days (May 15, 1963 to August 13, 1963, the date of the letter). However, it pled a delay of only eighty-two days to August 5, 1963, and liquidated damages of only 82%.

Likewise, as to the transceiver cases, Maxwell pled delays in delivery which at one per cent per day would reduce the price of the cases from $1,183.20 to $949.52, a reduction of $233.68. However, the judgment was based on the jury finding that the delivery of the cases had been delayed fifty-two days, which at one per cent per day reduced the price from $1,183.20 to $567.94, a reduction of $615.26.

Rule 301, T.R.C.P., provides inter alia that the judgment shall conform to the pleadings, and it has been held that a judgment in excess of that sought in the plaintiff’s pleadings should be reduced to the amount sued for. Sawyer v. City of San Antonio, 149 Tex. 408, 234 S.W.2d 398; Stuart v. Birdwell, Tex.Civ.App., 264 S.W.2d 452, no wr. hist.; Fidelity & Cas. Co. of N. Y. v. Moore, Tex.Civ.App., 333 S.W.2d 956, no wr. hist.; Denton County Electric Co-op., Inc. v. Burkholder, Tex.Civ.App., 354 S.W.2d 639, wr. ref. n. r. e. The same restriction must be held to apply to a defendant who is allowed an offset against the plaintiff’s claim in excess of the amount claimed in his pleadings. 52 Tex.Jur.2d, SETOFF, COUNTERCLAIM, Etc., § 24, p. 217, and § 53, p. 258. This was a claim on which Maxwell could have maintained an independent suit against Roby, and Maxwell cannot be permitted to set off against Roby’s claim an amount greater than that claimed in its answer. Rules 47, 85, 94 and 97(a), T.R.C.P.

Therefore, a correct computation of the net amount due Roby, as limited by the pleadings, would be as follows:

Plastic cases, per amended contract $ 1,183.20
Less liquidated damages due Maxwell 233.68
Net due for cases .$ 949.52
Mold, per amended contract 10,124.50
Less liquidated damages due Maxwell 8,302.09
Net due for mold 1,822.41
$ 2,771.93
Less Maxwell’s screening expense 225.00
Total amount due Roby . $ 2,546.93

To the extent that the trial court allowed Maxwell offsets not supported by its pleadings, as set out above, we sustain the second part of Roby’s first point of error.

Under its first point of error Roby also contends that the court erred in placing the burden of proof as to Special Issue No. 2 upon it. Special Issue No. 2 inquired of the jury as to whether they found “from a preponderance of the evidence that the Plaintiff, Intercontinental Plastics Manufacturing Company, was not the cause of the delay sustained in the manufacture and delivery of the transceiver cases to the Defendant, Maxwell Electronics Corp. from February 26, 1963 until August 13, 1963.” The court instructed the jury to let the form of their answer be “It was not the cause of the delay” or “It was the cause of the delay.” The jury answered, “It was the cause of the delay.”

It is true that the form of Special Issue No. 2 placed the burden of proof on Roby, but we do not agree with Roby that this was reversible error. Roby had by its written contract agreed to furnish the mold and cases to Maxwell within a certain period of time, or according to a certain specified delivery schedule. It was undisputed that there was a substantial delay in doing so. Maxwell alleged this as a breach of the contract by Roby and invoked the contractual provision for liquidated damages. Having ' established that Roby had not delivered either the mold or the cases at the agreed times, there was no burden on Maxwell to go further and show that such delay was “caused” by Roby. Special Issue No. 2 was material in connection with Roby’s effort to show that the delay was caused by Maxwell. This was an affirmative defense and the burden was on Roby to establish it. Therefore, the burden of proof as to Special Issue No. 2 was properly placed. Moreover, in view of the fact that the jury, in answer to Special Issues Nos. 10-A and 12-A absolved Maxwell of causing the delay, if there was any error in submitting Special Issue No. 2 in this form it was harmless. Rule 434, T.R. C.P.

Roby’s points Nos. 2 through 10 all complained that the trial court erred in submitting certain portions of the charge to the jury over Roby’s objections. Although these nine points of error fail to comply with Rule 418(b), T.R.C.P., in that they do not direct our attention to the specific matter complained of, we have nevertheless carefully studied them and the arguments made thereunder and find no merit in any of them. We do not believe it would add to the jurisprudence of the state for us to discuss them further. If we be mistaken in this, no error committed by the court in submitting the issues complained of amounted to such a denial of Roby’s rights as would be reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P. These nine points are overruled.

By its eleventh and last point of error Roby complains of the action of the trial court in rendering judgment for Maxwell for possession of the aforesaid mold, and ordering Roby to deliver it to Maxwell, subsequent to the entry of the final judgment. Maxwell did not in its answer defend on the ground that the mold had not been delivered to it; neither did it pray for judgment against Roby for title or possession or otherwise raise an issue as to the right of possession thereof. Final judgment was rendered and signed by the trial court on December IS, 1965. Eight days later, on December 23, 1965, both parties filed their amended motions for new trial and Maxwell filed its motion to modify the judgment to require Roby to deliver the mold to Maxwell and also filed its super-sedeas appeal bond. On January 6, 1966 the trial court signed an order, not in so many words either sustaining or denying the motion to modify the judgment, but ordering Roby to “produce the mold * * * to the defendant,” and fixing the amount of Roby’s supersedeas appeal bond at $10,000. Roby’s $10,000 supersedeas appeal bond was filed on the same date, January 6, 1966.

We agree with Roby that the trial court was without authority to make the order complained of. Since the matter arose within thirty days after the court signed the judgment, the court had the power to set aside the judgment and grant either side a new trial, either on motion or on the court’s own initiative, but we find nothing in the law authorizing a trial court, after the completion of a jury trial, the discharge of the jury and the rendition of final judgment, to reopen the case and summarily order one party to deliver valuable personal property, which it claimed the right to hold to secure its claim for payment therefor, to the other party. The order of January 6, 1966, is therefore held to be a nullity.

We turn now to Maxwell’s appeal from that part of the judgment which awarded to Roby an attorney’s fee of $3,-750. Under its first and second points of error Maxwell points out that Roby requested an attorney’s fee only with respect to its action on sworn account, and contends that it was error for the court to award Roby such a fee since its suit was necessarily one for damages for breach of a special contract. We agree. Roby made it very clear in its amended petition, upon which it went to trial, that it was requesting an attorney’s fee only in connection with its first alternative cause of action, which was on sworn account. Not having requested an attorney’s fee in connection with the only cause of action it really had, Roby is not entitled to recover such a fee.

Moreover, this was not a proper suit for the allowance of an attorneys’ fee. Vernon’s Ann.Civ.St, Art. 2226, provides inter alia that one having a valid claim for personal services rendered, labor done, material furnished, or upon a sworn account may also recover a reasonable attorney’s fee. As we have already held, one having a claim for damages for breach of a special contract may not maintain a suit for such damages as for breach of an implied contract and make of his case a cause of action on sworn account merely by so designating it and verifying his pleading. This was not a suit for personal services rendered, labor done or for materials furnished. Roby had agreed to do a “turnkey job,” to manufacture and deliver certain finished products for certain agreed prices which did not necessarily have any connection whatever with the reasonable value of the labor done by Roby’s employees or of the materials used in the said manufacturing process. Van Zandt v. Fort Worth Press, Tex.Sup.Ct.1962, 359 S.W.2d 893; Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435; Ford Motor Co. v. Davis Brothers, Inc., Tex.Civ.App., 369 S.W.2d 664, no wr. hist.; Kirkwood & Morgan, Inc., v. Roach, Tex.Civ.App., 360 S.W.2d 173, wr. ref. n. r. e.; Parks v. Benson Co., Builders, Tex.Civ.App., 393 S.W.2d 700, wr. ref. n. r. e.

Maxwell’s first and second points are therefore sustained.

The foregoing makes it unnecessary for us to pass upon Maxwell’s third and fourth points.

In accordance with the views hereinabove expressed, the judgment appealed from is modified by eliminating therefrom the attorney’s fee of $3,750, and by increasing Roby’s recovery of $1,355.39 to $2,546.93, with interest at the legal rate from December 15, 1965. As so modified the judgment is affirmed. All costs are taxed equally between the parties.

Modified and affirmed.


author: SELLERS, Justice.

text:
    PHILLIPS PIPE LINE COMPANY, Appellant, v. Emilio RAZO et al., Appellees.
    No. 237.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 10, 1966.
    Supplemental Opinion Dec. 1, 1966.
    Rehearing Denied Dec. 8, 1966.

      Hall E. Timanus, George Hagle, Andrews, Kurth, Campbell & Jones, Houston, Wm. J. Zeman and Lloyd G. Minter, Bar-tlesville, Okl., E. H. Brown, Houston, for appellant.
    Thomas J. Mitchell, Combs & Mitchell, Houston, Leland B. Kee, Davis & Kee, Angleton, for appellee, Razo.
    Royce R. Till and Sam W. Cruse, Fulbright, Crooker, Freeman, Bates & Jaw-orski, Houston, for appellee, Bechtel Corp.
   SELLERS, Justice.

This suit was brought by Emilio Razo, plaintiff, against Phillips Pipe Line Company, Bechtel Corporation and J. A. Mercer, defendants, to recover for personal injuries to himself in the sum of $304,288.00. The injuries to the appellee were alleged to be the result of an explosion of Phillips’ Ethylene pipe line when struck by a KD-7 Caterpillar bulldozer which was attached to a metal sled upon which appellee was. riding. To appellee’s cause of action, the defendants Phillips Pipe Line Company and J. A. Mercer filed their answer denying generally the material allegations contained in the appellee’s petition. The appellant, Phillips Pipe Line Company, also alleged that the appellee was guilty of contributory negligence in a number of respects, and that the injury to appellee was the result of an unavoidable accident.

The appellant, Phillips Pipe Line Company, further alleged that appellee’s injury and accident were caused by the negligence of appellee’s employer, Monical & Powell, Inc., and/or T-T Construction Company, Inc., Joint Venturers. The Phillips Pipe Line Company in its answer seeks as cross-plaintiff and third-party plaintiff to hold Bechtel Corporation and Monsanto Chemical Company jointly liable for the injury to appellee in the event the court should hold that appellee was entitled to recover of Phillips Pipe Line Company.

Trial was to a jury and a judgment was rendered for plaintiff for the full amount sued for against defendant Phillips Pipe Line Company, denying judgment against the other defendants, and denying Phillips’ cross-action against Bechtel Corporation.

Phillips Pipe Line Company has duly prosecuted this appeal.

The following sketch will aid in understanding the factual situation presented in this case:

In 1956, Phillips Pipe Line Company secured an easement for the construction of a pipe line across the land of Riggs and Krause, the land at the time being undivided. This pipe line was not constructed until 1960 at which time Krause and Riggs had partitioned the land and a partition fence had been constructed on the dividing line of their property. This fence begins at State Highway No. 332 which is to the north of the land involved and runs in a southerly direction, then turns almost due west for a distance, and then makes another turn to the southwest. After this fence was constructed, Riggs had a private road leading from the highway south on the east side of the fence line. Krause had a private road leading south from the highway on the west side of the fence. The two roads parallel each other until they reach a point where the fence line turns west and there the Krause road turns west with the fence line but the Riggs road continues in a southerly direction. The Phillips pipe line and right-of-way enters Riggs’ land on the east side, continues in a westerly direction until it crosses the Riggs road a short distance south of the fence line and the Krause road, then turns in a northwesterly direction until it crosses the fence line and immediately crosses the Krause road, continues west along near the north side of the Krause road until it reaches near the Brazos River on the west where the Phillips pipe line turns south under the Krause road and enters the river crossing. The pipes at the river crossing on the Phillips line are uncovered and plainly visible.

In January of 1962, Monical & Powell, Inc. was building a pipe line under a contract with Bechtel Corporation for Monsanto Chemical Company, and an easement for this pipe line was secured from Krause and ran from the east where it entered the Krause land almost due west and parallel with the Phillips pipe line, but was some five hundred feet to the north of the Phillips line. This pipe line was to cross the Brazos River on the west side of the Krause land. A part of this right-of-way of Monsanto across the Krause land was inundated with water from a pond or slough, and so in order to gain easier access to the river on the west, Monical & Powell secured permission from Krause to use his private road above described. Monical & Powell had been using this road for about a month when, on January 29, 1962, their KD-7 bulldozer, in making a return from the river area to the highway using the Krause road, became stuck, and in an effort of the driver to extricate the machine, ruptured the Phillips pipe line. An explosion followed immediately and the ap-pellee was severely injured with first, second, and third degree burns over some 38% of his body. This explosion occurred at the point where Phillips’ line crossed under the Krause road.

The jury made the following findings:

“1. A clearly defined roadway existed on the Krause property at the place where the explosion occurred, at and prior to the time of said explosion.
“2. Phillips Pipe Line Company, its servants, agents, or employees knew of the existence of said roadway on the Krause property at the place where the explosion occurred * * * at and prior to the time the explosion occurred.
“3. Prior to the time of the explosion the defendant Phillips Pipe Line Company failed to give such warning of the presence of the six inch ethylene pipe line on the Krause property as would have been given by an ordinary prudent pipe line company under the same or similar circumstances.
“4. Failure of the defendant Phillips Pipe Line Company to give such warning * * * was a proximate cause of the explosion in question.
“5. Defendant Phillips Pipe Line Company constructed a portion of the six inch ethylene pipe line underneath the Krause road.
“6. In constructing a portion of the six inch ethylene pipe line underneath the Krause road * * * the defendant Phillips Pipe Line Company failed to bury such line to such depth as it would have been buried by an ordinary prudent pipe line company under the same or similar circumstances.
“7. Failure of the defendant Phillips Pipe Line Company to bury said pipe line to such depth as it would have been buried by an ordinary prudent pipe line company under the same or similar circumstances * * * was a proximate cause of the explosion in question.
“8. Defendant Phillips Pipe Line Company failed to make such inspection of the six inch ethylene pipe line on the Krause property as would have been made by an ordinary prudent pipe line company under the same or similar circumstances.
“9. Failure of defendant Phillips Pipe Line Company to make such inspection of the six inch ethylene pipe line, on the Krause property, as would have been made by an ordinary prudent pipe line company under the same or similar circumstances * * * was a proximate cause of the explosion in question.
“10. At the time and on the occasion in question the plaintiff, Emilio Razo, was an invitee on the premises in question.”

In its brief, the appellant in Points 1 and 2 asserts that the court erred in failing to hold that appellant at no time violated or breached any duty owed to the appellee and in failing to hold that the accident and resulting damage complained of by appellee were not legally forseeable consequences of the actions and omissions charged to Phillips Pipe Line Company. With this contention, we do not agree.

It has been held by the Supreme Court of this State that those who distribute a dangerous article or agent owe a degree of protection to the public proportionate to and commensurate with the dangers involved. McAfee et al. v. Travis Gas Corporation et al., 137 Tex. 314, 153 S.W.2d 442.

It is true as pointed out by Phillips that the Krause land is covered by heavy timber, is wet and marshy, and is not touched by a public road, but there is a plainly marked private road as found by the jury with ample evidence to support such finding. This road was sufficient notice to appellant that some other company might use this road with Krause’s permission to construct another pipe line on the land, as was done, or that the owner might use heavy equipment to clear this land of the large timber from the surface of the land and would use this road. McWilliams v. Kentucky Heating Co. et alo, 166 Ky. 26, 179 S.W. 24, L.R.A.1916A, 1224. Being charged with notice that this road might be used for other heavy equipment, it was the duty of the defendant pipe line company to give such warning as an ordinary prudent pipe line operator would have given under such circumstances of its pipe line under the road. It is shown that it is the custom of pipe line companies to paint the fence posts where the line passes under a fence and that a marker is always installed when a pipe line goes under a road to warn of the presence of the pipe line. While there is evidence both ways about the fence posts being painted, the jury found that they were not painted and this finding must be sustained since the posts themselves were destroyed by the fire following the explosion. There was no marking warning of the pipe line where it went under the Krause road. The jury found that Phillips’ failure to give such warning was a proximate cause of the explosion in question. We are of the opinion that the evidence was sufficient to sustain the jury’s finding that Phillips, in constructing its pipe line under the Krause road, failed to bury its line to such depth as it would be buried by an ordinary prudent pipe line operator under the same or similar circumstances. There is evidence that the pipe line at the point of explosion was only fourteen inches deep and that the failure to bury to a deeper distance was a proximate cause of the explosion in question. Appellant contends that it owed appellee no duty since he was a trespasser and that there was not sufficient evidence to sustain the jury’s finding that appellee was an invitee on the premises in question.

The sub-contractors, B. D. Carlton, Monical & Powell, Inc., and T-T Construction Company, were Joint Venturers charged with the duty of constructing the pipe line. The contract was with the Bechtel Corporation to build the pipe line for Monsanto Chemical Company. The appellee was an employee of the above named contractor, Monical & Powell, Inc. The land over which the Monsanto pipe line was to run over the Krause land was partly covered by a slough or pond making it extra hazardous to cross and in order to save time and money, these contractors secured the following written permission to cross the land of the fee owner, Krause:

“To Whom it May Concern:
“L, Lee S. Krause in agreement with B. D. Carlton, Sub-Contractor, do hereby authorize B. D. Carlton to perform the following work on property of Lee S. Krause:
“work to be performed:
“Do grant permission for B. D. Carlton, Monical & Powell And T. T. Construction to cross my land with tools and equipment to make a pipeline crossing for a pipeline, across the river.
“It is understood that the land will be leveled and left in as good a condition as it was found.
“B. D. Carlton agrees to cut approximately 20 trees on the roadway and push them out of the way for this right of crossing.
“The Sub-Contractor, B. D. Carlton, does guarantee to perform said work in a workman like manner, and shall be soley responsible for this operation.
“Lee S. Krause
“Signed:
Owner
“/s/ Lee S. Krause Tenant
Lessee
“December 6, 1961”

The facts as found by the jury show that Krause had built a levee across this pond or slough over which he had a roadway and that he had extended this road on across his land to a point near the Brazos River where the Monsanto pipe line was to cross the river. Regardless of the wording of the above instrument secured from Krause, it is without dispute that the contractors, in securing the above written consent of Krause, were to use the levy and the Krause road. Under this agreement, the contractors had for some time used this road and levee to carry heavy equipment and material across the land of Krause to and near the river on the west side of the land. The contractors had completed the crossing of the Monsanto pipe line river crossing about a week before the explosion. On the date of the explosion, the contractors had sent the bulldozer, pulling a steel sled behind it, over the levy and down the Krause road to a point near the river with a heavy load of skids for distribution on the Monsanto easement, which skids were to be used in completing the construction of the Monsanto pipe line and its connection to the river crossing already completed. The bulldozer with its crew, after delivering the skids, made the return trip from the Monsanto easement the same way that it went over to the easement; that is, it returned to the river and then went up the Krause road until it reached a point near the levee where it became stuck, and the driver in an effort to extricate the machine, struck the Phillips ethylene pipe line and ruptured the same and the explosion resulted in which appellee was injured.

It seems to be a well settled rule of law in this State that an easement holder, not being in exclusive possession of the land, owes the duty of ordinary care to others who may come on the property, and this duty extends even to others who would be trespassers as to the owner of the fee interest. Hernandez v. Heldenfels, 374 S.W.2d 196 (Sup.Ct.); Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302; Prairie Pipe Line Co. v. Dalton, 243 S.W. 619 (Tex.Civ.App. writ dis’m.); Denton County Electric Co-Op. v. Burkholder, 354 S.W.2d 639 (Tex.Civ.App. writ ref. n. r. e.).

It is to be observed that the above quoted instrument, by its terms, did not give the contractors the use of the road, but the testimony from the fee owner, Krause, establishes that the instrument was given for that purpose and there is no evidence to the contrary. So far as the record reveals, Krause never at any time undertook to end the permission to use the road. This court is of the opinion that the instrument by its terms did not expire with the building of a river crossing on the river to which the pipe line for which it was built had never been connected thereto, and it is undisputed that the pipe line had not been completed and the contractors were within their rights in crossing the land of Krause to carry the skids and to return as they did on the Krause road. Taking this view of the instrument, giving the permission to use the road of Krause at the time of the explosion, it follows that there was ample evidence in the record to support the finding that the appellee was an invitee on the premises at the time and place of the explosion.

Other contentions made by appellant with reference to the issue of appellee not being an invitee are overruled.

Another contention by appellant is that the record of Phillips’ easement was sufficient notice to Monical & Powell of the presence of the Phillips pipe line. The Phillips easement was not identified by a metes and bounds description. There is no way the location of the pipe line could be determined by looking at the recorded instrument. Texas-New Mexico Pipeline Co. v. Allstate Const. Co., 70 N.M. 15, 369 P.2d 401 (1962); Mountain States Telephone and Telegraph Co. v. Kelton, 79 Ariz. 126, 285 P.2d 168 (1955).

There are a number of assignments questioning the sufficiency of the evidence to support the jury’s finding on most of the issues submitted to the jury and without undertaking to discuss each separately, this court is of the opinion that the evidence reflected in the six volumes of the Statement of Facts fully supports the jury’s verdict, and the assignments are overruled.

We are of the opinion that there was no error by the trial court in denying Phillips’ cross-action against Bechtel Corporation.

This brings us to the question of the ex-cessiveness of the judgment. The trial court denied the request for remittitur and Phillips asserts that this was error. We quote the following from appellee’s brief:

“Let us first take a look at plaintiff, Emilio Razo. He was born in Nuevo Laredo, Tamaulipas, Mexico. He moved to Kingsville, Texas in 1938 and has resided in Texas ever since * * *. He worked as a butcher for a while and then as a route candy salesman. He was in the military service of the United States during World War II and did combat duty in Saipan and Guam * * *. At the time of his injury he was 35 years of age, married and the father of three children. * * *. The accident took place on January 29, 1962. The trial was had three years later in March and April of 1965.”

We realize this man suffered a horrible injury — first, second, and third degree burns over 38% of his body. His life was saved by a fellow-employee throwing him into a mud hole at the scene of the accident and extinguishing the fire from his clothing; that after this, for months, he suffered skin grafts and pain; and that he is totally and permanently injured is without dispute in the evidence. The trial of the case was some three years after the accident. He testified at the trial. So far as this record shows, he still has use of his legs and arms, although somewhat impaired. He has his eyesight, although it is likewise impaired. In all, he is far better off than some of those in reported cases who received much less in damages. Just what prompted the jury to grant the plaintiff the full amount sued for, being the sum of $304,288.00, we do not know, and this notwithstanding the plaintiff’s attorney in summing up the case to the jury asked for a much less sum. It would serve no useful purpose to cite cases reported in the books as they sustain judgments for more and less than the judgment here recovered.

It is this court’s view that a reasonable judgment under the facts of this case would be $200,000.00, and we therefore will affirm the judgment for this amount, should the plaintiff grant a remittitur of $104,288 within fifteen days from this date; otherwise, the judgment of the trial court will be reversed and the cause remanded.

SUPPLEMENTAL OPINION

In our opinion delivered and filed on November 10, 1966, this Court suggested that if appellee would file a remittitur in the sum of ONE HUNDRED FOUR THOUSAND TWO HUNDRED EIGHTY-EIGHT DOLLARS ($104,288.00) within fifteen days, the judgment of the trial court in favor of appellee would be reformed and, as reformed, affirmed. Ap-pellee filed in writing the suggested re-mittitur on November 16, 1966.

Accordingly, the judgment of the trial court is reformed in conformity with such remittitur and, as so reformed, is affirmed.