author: DENTON, Chief Justice.

text:
    CITY OF PERRYTON, Texas, Relator, v. Honorable Max W. BOYER et al., Respondents.
    No. 7813.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 2, 1968.

      Lemon, Close & Atkinson, R. D. Lemon, Perryton, for relator.
    Linn & Helms and Richard N. Countiss, Spearman, for respondents.
   DENTON, Chief Justice.

This is a mandamus proceeding brought by the City of Perryton, Relator, seeking to compel Honorable Max W. Boyer, District Judge, to set aside his order granting a new trial and to re-enter judgment in Cause Number 3029 in their favor. Other respondents named in this cause are Gene E. Steed and wife, Marvel J. Steed; Delbert Trew and wife, Tressie O’Leen Trew, plaintiffs in the suit below.

The suit below was one for alleged damages to the plaintiffs’ land resulting from the construction of a drainage channel by the City of Perryton. In response to Special Issues, the jury found: (1) the drainage canal diverted surface waters from its natural course upon plaintiffs’ land in excessive quantities; (2) that such diversion of the surface waters did not damage the land; (3) that the construction of the channel was not a proximate cause of damage to plaintiffs’ land; (4) that the difference in the reasonable market value of the land before and after the construction of the drainage channel was $12,800.00. Upon this verdict, the trial court entered judgment for the defendant and ordered that plaintiffs take nothing. The plaintiffs timely filed a motion for new trial, setting out as grounds therefor jury misconduct and conflicting answers, among others. The trial court, after hearing the motion, granted the new trial on the sole ground of jury misconduct.

It is relator’s position that it was entitled to a judgment onrihe record; that it obtained such a judgment and that the grant-, ing of a motion fbiria new trial did not involve the discretion; of the trial court. That is, the trial court’s failure to set aside the order granting the motion for new trial and reinstating the judgment was a ministerial omission and did not constitute a discretionary duty of the court.

It is a well settled general rule that an appellate court will not review by mandamus an action of the trial court granting a new trial while that court still has jurisdiction of the case. The discretion of the trial court in granting a new trial cannot be reviewed by mandamus. Angelina Casualty Co. v. Fisher (Tex.Civ.App.) 319 S.W.2d 387; Trevino v. Doughty (Tex.Civ.App.) 311 S.W.2d 276. The authority of Courts of Civil Appeals to issue writs of mandamus is limited to that given in Articles 1823 and 1824, Vernon’s Ann. Tex.Ann.Civ.St. These articles authorize the issuance of such writs where necessary to enforce their jurisdiction or to direct a District or County Court to proceed to trial and judgment in a case.

In our opinion, the question of this court’s authority to issue a writ of mandamus is controlled by Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330. In that case the Supreme Court held there are only two instances where the appellate courts have directed a trial court to set aside its order granting a motion for new trial. These are :

“(1) When the trial court’s order was wholly void as where it was not entered in the term in which the trial was had; and
(2) Where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting.”

Neither of these two situations exist in this case. It is undisputed the new trial was granted in termtime; and the new trial was granted on the sole specific ground of jury misconduct.

It is also well settled that in determining whether jury misconduct probably resulted in injury to the party complaining thereof, the court must exercise sound discretion. Sullivan v. Lydick Roofing Co. (Tex.Civ.App.) 378 S.W.2d 419 (Ref.N.R.E.); Allan v. Materials Transportation Co. (Tex.Civ.App.) 372 S.W.2d 744. It is thus clear the granting of a new trial on the ground of jury misconduct was discretionary with the trial court. The court’s failure to set aside that order and reenter judgment for relator was not a ministerial duty. This court can issue writs of mandamus only in a case where the entering of a judgment by the trial court is a ministerial duty. Walker v. Lindsey (Tex.Civ.App.) 298 S.W.2d 195; Kennann v. Nelson (Tex.Civ.App.) 278 S.W.2d 335.

The petition for a writ of mandamus is refused.


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Kathryn Price MURFEE, Guardian, Appellant, v. O. H. OQUIN, Independent Executor et al., Appellees.
    No. 7749.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1967.
    Rehearing Denied Nov. 13, 1967.
    Murfee, Hoover & Kraft, Houston, Richards & Ferguson, Dalhart, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey and Robert H. Smith, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is a summary judgment matter. Appellant, Kathryn Price Murfee, Guardian of the person and estate of Bertie Noland Price, acting solely in her representative capacity brought suit for, among other things, a verified accounting of the Price & Price Insurance Agency. L. M. Price and son, W. N. Price, were partners in the business of Price & Price Insurance Agency. L. M. Price died October 4, 1955, and W. N. Price died October 4, 1964. Bertie Noland Price is the surviving widow of L. M. Price and the mother of W. N. Price.

Appellees, O. H. Oquin, Independent Executor under the will and of the estate of W. N. Price, Deceased, and J. A. Whit-tenburg III, the person to whom W. N. Price purportedly sold said insurance agency on or about April 25, 1962, filed separate motions for summary judgment each contending that appellant’s cause of action was barred by Article 5527, Texas Revised Civil Statutes, Vernon’s Ann.Civ.St. The District Court sustained each of said appel-lees’ motions for summary judgment and rendered judgment summarily in favor of each and severed said portion of the cause from the main suit. From that judgment appellant perfected this appeal.

As we view this matter the first and only issue necessary to be here determined is the sufficiency of the affidavits of W. J. Fellers and Helen Langhorne supporting the ap-pellees’ motions for summary judgment. The affidavit of W. J. Fellers omitting the formal parts is as follows:

“I am over the age of twenty-one (21) years, am of sound mind, have never been convicted of any crime or offense and have personal knowledge of every statement herein made and am otherwise fully competent to testify to the matters stated herein.
“For several years prior to October 4, 1955, L. M. Price, Deceased, and his son, W. N. Price, Deceased, were partners in the transaction of business of Price and Price Insurance Agency of Stratford, Sherman County, Texas. On said date, October 4, 1955, L. M. Price died. Thereafter the said W. N. Price, Deceased, operated the business known as Price and Price Insurance Agency as a sole proprietorship; said partnership existing between the said L. M. Price and W. N. Price terminated on said date. By October 4, 1956, all debts of the partnership known as Price and Price Insurance Agency had been paid in full, all collectible accounts receivable had been collected, and the winding up of business of said partnership had been completed.”

The affidavit of .Helen Langhorne is as follows: ■ v

“I am over the age of twenty-one (21) years, am of sound mind, have never been convicted of any crime or offense and have personal knowledge of every statement herein made and am otherwise fully competent to testify to the matters stated herein:
“For several years prior to October 4, 1955, L. M. Price, Deceased, and his son, W. N. Price, Deceased, were partners in the transaction of business of Price and Price Insurance Agency of Stratford, Sherman County, Texas. On said date, October 4,1955, L. M. Price died. Thereafter the said W. N. Price, Deceased, operated the business known as Price and Price Insurance Agency as a sole proprietorship; said partnership existing between the said L. M. Price and W. N. Price terminated on said date.”

It is appellees’ contention that since the affidavits state that affiants state they had personal knowledge of every statement therein made and were otherwise fully competent to testify to the matters stated in the affidavits, that that was sufficient. It is appellant’s contention as presented by her first point of error that the affidavits are not sufficient in that the statements were not so worded that if given on the witness stand they would be admissible as evidence without showing as to how they could possibly have such knowledge except by hearsay and that such affidavits should be stricken as set out in appellant’s motion to strike the affidavits. In other words, how did affiants learn or know of such facts? In the case of Weaver v. Brandin, 394 S.W. 2d 709 (Tex.Civ.App.-Houston, 1965, writ dism’d) it is stated:

“To be sufficient the affidavit must in some way affirmatively show the affiant is personally familiar with the facts so she could testify as a witness. In this the affidavit fails. Too, the matters sworn to must be facts that would be admissible in evidence. Wilma Weaver’s affidavit is insufficient in this regard. Rule 166-A, Sec. (e), Texas Rules of Civil Procedure; Richards v. Smith, 239 S.W.2d 724 (Tex.Civ.App.) ref. n. r. e.; Hunt v. Southern Materials Co., 240 S.W.2d 400 (Tex.Civ.App.), refused; Edwards v. Williams, 291 S.W.2d 783 (Tex.Civ.App.); Mugrage v. Texas Emp. Ins. Ass’n, 304 S.W.2d 189 (Tex.Civ.App.), error dism.; Quarles v. State Bar of Texas, 316 S.W.2d 797 (Tex.Civ.App.), no writ hist.; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274.”

In the case of Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958) it is stated: “The summary judgment rule, Rule 166-A, Texas Rules of Civil Procedure, provides that affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be worded that if given on the witness stand they would be admissible as evidence.” (Emphasis ours).

The affidavits here involved state they have personal knowledge of every statement therein made and that they were otherwise fully competent to testify to the matters stated therein but there is nothing to show how they learned or knew of the facts. There is nothing to show they handled any of the matters or were in any position to know any facts they were making affidavits to establish.

Rule 166-A (e) provides as to the affidavits as follows:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

This provision clearly shows that the mere statement that affiant has personal knowledge of every statement made is not sufficient because it is further provided: “ * * * and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The statements made by affiants that they were competent to testify to the matters stated are nothing more than conclusions of affiants. There must be something in the affidavits to show affirmatively what makes the affiant competent to testify. A reading of the affidavits makes it obvious that the statements are not so worded that if given on the witness stand they would be admissible in evidence. The affidavits would not be admissible without showing as to how af-fiants could possibly have such knowledge except by hearsay. Tobin v. Garcia, supra; Gaines v. Hamman, 163 Tex. 618, 358 S.W. 2d 557 (1962); Heien v. Crabtree, 364 S.W. 2d 271 (Tex.Civ.App.-Amarillo, 1962, affirmed 369 S.W.2d 28). It is stated in Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961) as follows:

“ ‘Secondly, appellant’s affidavit in support of its motion for summary judgment is fatally defective in that it does not allege that it was made on the personal knowledge of the affiant, nor does it show affirmatively that the affiant is competent to testify as to the matters stated in the affidavit, both of which showings are required by Rule 166-A, § (e). Quarles v. State Bar of Texas, Tex.Civ.App., 316 S.W.2d 797; Anderson v. Hake, Tex.Civ.App., 300 S.W.2d 663; Edwards v. Williams, Tex.Civ.App., 291 S.W.2d 783; Richards v. Smith, Tex. Civ.App., 239 S.W.2d 724. And thirdly appellant’s motion is based on a conclusion of law. Munoz v. Heights Savings & Loan Assn., Tex.Civ.App., 319 S.W.2d 945; Farmers State Bank v. First State Bank of Liberty, Tex.Civ.App., 317 S.W.2d 768; Quarles v. State Bar of Texas, Tex.Civ.App., 316 S.W.2d 797.’ ”

One of the affidavits states that the winding up of the business of said partnership had been completed and the other affidavit states that the partnership terminated. There is no showing in any manner that an accounting was ever had. It is stated in Howell v. Bowden, 368 S.W.2d 842 at 847 (Tex.Civ.App.-Dallas, 1963, writ ref’d n. r. e.) as follows:

“Appellant claims ¡the partnership was dissolved March 15,‘ I960. But he overlooks the winding ¿.-up period, which certainly lasted at leasfeuntil May 11, 1960 when the receiver was appointed. Dissolution does not terminate a partnership. The relationship continues during the winding up period. This is especially true when one of the parties is still in charge of the business. He occupies a fiduciary relationship to the other partner until the winding up of the partnership affairs is complete.
“Rowley on Partnership, § 582 (1960 Ed.) says there are three steps in the termination of a partnership: (1) dissolution, (2) winding up and (3) termination and accounting. See also Jones v. Mitchell, Tex.Civ.App., 47 S.W.2d 371; 40 Am.Jur. 388, 393; 80 A.L.R. 15; 55 A.L.R.2d 1424.”

We sustain appellant’s first point of error. Judgment of the trial court is reversed and the case is remanded to the trial court.


text:
    D. F. THOMPSON, Appellant, v. Donnie THORESON, Appellee.
    No. 7740.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1967.
    Rehearing Denied Dec. 11, 1967.

      Lemon, Close & Atkinson, R. D. Lemon, Perryton, for appellant.
    Linn & Helms and Richard N. Countiss, Spearman, for appellee.
   DENTON, Chief Justice.

This is a suit for damages to a wheat crop destroyed by fire. Donnie Thoresbn, the landowner, brought suit against D. F. Thompson, who was employed by Thoreson to harvest the wheat crop. In response to special issues, the jury found appellant’s employee negligent and assessed the damages in the amount of $7380.00. From a judgment which awarded appellee this amount of damages, appellant appeals.

Appellant’s first point of error complains of the error of the trial court in overruling his plea in abatement because appellee’s insurance carrier, who had paid for some of the loss, was not a party to the suit either by name or by representation. In his disposition, appellee stated he had fire insurance on the wheat which was destroyed, but on instruction from counsel declined to reveal the name of the insurance company and the amount paid to him. Upon a hearing on the motion, outside the hearing of the jury, appellee testified for the first time that his insurance carrier was The Farm Bureau and that the carrier had in fact paid appellee $20.00 per acre for 90 acres of wheat or a total of $1800.00 for the loss, he had sustained. The insurance policy was not available and appel-lee’s counsel refused to stipulate the policy contained a standard subrogation clause. Nothing in this record shows the insurance company was represented in this cause or that appellee was bringing the suit on behalf of the company to any extent. It is not shown the insurance company had notice of the suit nor does the judgment provide for any recovery by the said company.

Upon making payment of a portion of the loss to appellee, the insurance carrier became the owner pro tanto of the cause of action asserted by appellee against appellant. Wichita City Lines, Inc. v. Puckett, Tex.Civ.App., 288 S.W.2d 122, affirmed 156 Tex. 456, 295 S.W.2d 894. Morales v. Roddy (Tex.Civ.App.) 250 S.W. 2d 225. Magnolia Pipe Line Co. v. Security Union Insurance Company (Tex.Civ.App.) 37 S.W.2d 1062. Appellant had the right to have all parties who had an interest in the cause of action before the court. The failure to do so subjected appellant and his insurer to pay twice for the wheat loss and cost of another trial. We conclude the court erred in overruling appellant’s plea in abatement.

Appellant’s remaining points of error go to the law question of “no evidence” and the fact question of the insufficiency of the evidence to support the jury findings ap-pellee’s employee was negligent in starting the fire, and that such negligence was a proximate cause of appellee’s loss. In considering these contentions we will adhere to the applicable rules set out in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The jury found appellant’s employee was negligent in driving, appellant’s truck over the wheat stubble on the occasion and that such negligence was a proximate cause of the fire. This was the only pleaded act of negligence on. the part of appellant’s employee. Res ipsa loquitur was not pleaded. Appellant, a “custom cutter” was employed by appellee to harvest his 1965 Wheat crop. He was u'sirig two combines and two trucks to haul the wheat to an elevator. During the évening prior to the fire, appellant and app'ellee discussed the danger of driving the trucks across the wheat stubble. Appellee either “warned” or suggested to appellant that this not be done. Appellant agreed and did instruct his drivers not to drive the trucks over the area where the wheat had been cut. This would require the wheat to be loaded onto the trucks at the respective ends of the wheat field. The following day, a fire started underneath one of appellant’s trucks while it was in the stubble. The truck and 90 acres of uncut wheat were destroyed. Appellant was not present when the fire started and appellee was some 200 yards from the fire when he saw smoke and saw and heard the truck “blow up”. Appellant and appellee were the only witnesses who testified during the trial. Appellant testified it was his “understanding” the fire started under the truck. There is no evidence how the fire started. The condition of the truck was not referred to and there is a total absence of evidence that the truck was inherently dangerous in starting fires. The fact both appellant and appellee agreed it was dangerous for a truck to drive across stubble is not evidence to show the fire started through the negligence of appellant’s employee. The record fails to show how the fire started or how it could have started. There is no evidence upon which we can even speculate how it may have started.

The mere happening of an accident is no evidence of negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195. Austin Bridge Co. v. Polanca (Tex.Civ.App.) 300 S.W.2d 173. Halliburton Oil Well Cementing Co. v. Groves (Tex.Civ.App.) 308 S.W.2d 919 (Ref. N.R.E.). Bart DeLatt & Associates, Inc. v. Knight, Tex.Civ.App., 369 S.W.2d 65. Neither negligence nor proximate cause will be presumed but must be proved. Graham v. Fed-X, Inc, (Tex.Civ.App.) 384 S. W.2d 785 (Ref. N.R.E.). Leatherwood Drilling Co. v. TXL Oil Corporation (Tex.Civ.App.) 379 S.W.2d 693 (Ref. N.R.E.).

There being no evidence that the fire was caused by any negligence traceable to appellant or his employees, either directly or indirectly, the appellee failed to sustain his burden of proof. Cobo v. Rodriguez (Tex.Civ.App.) 209 S.W. 196 (Writ Ref.)

The judgment of the triai court is reversed and rendered.


text:
    Anita Martice King PEARSON, Appellant, v. Grace BUNTING, Appellee.
    No. 7752.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1967.
    Rehearing Denied Dec. 11, 1967.

      Gene E. Steed, Perryton, for appellant.
    Lemon, Close & Atkinson, R. D. Lemon, Perryton, of counsel, for appellee.
   NORTHCUTT, Justice.

This is an action brought by the plaintiff, Grace Bunting, against defendant, Anita Martice King Pearson, to recover for services rendered by Grace Bunting in caring for Bertha Helen King, mother of Anita Pearson. Bertha Helen King, by her will, willed all of her estate to Anita Martice King Pearson. Under the will Anita Martice King Pearson was made independent executrix of her mother’s estate. The will was duly probated and Anita Martice King Pearson qualified as independent executrix of her mother’s estate. For convenience, the parties will hereafter be referred to as they were in the trial court.

The two claims upon which this law suit was founded were filed at a time when the defendant was qualified and acting as independent executrix of the estate of Bertha Helen King, Probate Cause No. 1023, in the County Court of Ochiltree County, Texas. The defendant did not endorse on, or annex to, either claim her allowance or rejection at any time. The first claim was presented in July 1964 and the last claim was presented in January 1965. This law suit was filed on July 19, 1965.

The defendant filed a motion for summary judgment contending that since she failed to endorse on, or annex to, such claim her allowance or rejection within thirty days after the claims were presented to her, that such claims were rejected; and since the plaintiff failed to file suit within ninety days thereafter, the claim was barred by limitation. The motion for summary judgment was overruled and the case was tried to a jury upon special issues. The jury found $1,000 was the reasonable value of the services rendered by Grace Bunting for Bertha King and for $200 attorney’s fees. The defendant filed her motion for judgment non obstante veredicto. The court overruled the motion and granted judgment for the plaintiff for $1,200, plus interest thereon at six per cent from and after October 18, 1966. Defendant filed her motion for new trial contending, as she did in her motion for summary judgment and her motion for judgment non obstante veredicto, that she failed to endorse on, or annex to, either of such claims her allowance or rejection within thirty days after the claims were presented to her; that the claims became rejected and as a matter of law under the provisions of Section 310, Texas Probate Code, V.A.T.S., and since plaintiff did not institute suit upon either of’the rejected claims within ninety days after their rejection became final, as a matter of law by virtue of Section 313, Texas Probate Code, the claims were barred by the limitations. The motion for new trial was overruled and defendant perfected this appeal.

By defendant’s first point of error it is contended the court erred in failing to apply the ninety-day state of limitation rule provided by Section 313 of Texas Probate Code to claims actually presented to the independent executrix for services rendered to the decedent during her lifetime. It was plaintiff’s contention the ninety-day statute of limitation prescribed by Section 313 of the Texas Probate Code was not applicable in an independent administration.

In defining the use of terms used in the Probate Code Section 3(aa) provides: “ ‘Personal representative’ or ‘Representative’ includes executor, independent executor, administrator, temporary administrator, guardian, and temporary guardian, together with their successors.” Section 310 of the Probate Code provides in part that: “The failure of a representative of an estate to endorse on, or annex to, a claim presented to him, his allowance or rejection thereof within thirty days after the claim was presented, shall constitute a rejection of the claim.” Section 313 of the Probate Code provides in part that: “When a claim or a part thereof has been rejected by the representative, the claimant shall institute suit thereon within ninety days after such rejection, or the claim shall be barred.”

The language of the Probate Code setting forth that rule is positive and imperative. The terms of the Code are mandatory and admit of no exceptions. Tex.Jur.2d, Sec. 639, p. 498. Since Mrs. Pearson, Independent Executrix, failed to endorse on, or annex to, the claim presented to her by the .plaintiff her allowance or rejection of the claim within thirty days after the claim was presented, such failure constituted a rejection of the claim. The plaintiff had ninety, days after the rejection of her claim. ?in which to file suit. Section 313, Texas Probate Code. She did not file suit until more than one-hundred and fifty days after the rejection and upon independent executrix’ plea the claim was then barred by limitation. Stamps v. Varelas, 313 S.W.2d 141 (Tex.Civ.App.-San Antonio, 1958, no writ). In Dobbs v. Russell, 347 S.W.2d 796 (Tex.Civ.App.-Fort Worth, 1961, affirmed Russell v. Dobbs, 163 Tex. 282, 354 S.W.2d 373, 1962) it is stated:

“We have reached the conclusion that proper construction of the pertinent provisions of the Probate Code, particularly Sections 309 ‘Memorandum of Allowance or Rejection of Claim’, 310 ‘Failure to Endorse or Annex Memorandum’, and 313 ‘Suit on Rejected Claim’, compels a holding that the claim of appellees in the instant case was foreclosed after the expiration of the ninety-day period immediately following the date on which it was rejected by operation of law under the provisions of Section 310, — and that it was not merely the remedy which was foreclosed, but the debt itself stood discharged. In other words, if there was doubt as to whether the law in its former state barred the debt as well as the remedy, the Legislature removed the doubt and provided that in the absence of institution of suit (somewhat in the nature of taking an appeal) the debt should be barred as well as the remedy upon the expiration of ninety days from the date an effective claim therefor was rejected. In such respect the discussion of Judge Stayton in Goldfrank, Frank & Co. v. Young, supra [64 Tex. 432], proved beneficial.
“Furthermore, since the debt itself became absolutely barred upon the expiration of ninety days after claim therefor was filed equity would not be available to be invoked in appellees’ behalf to toll the provisions as to time and thus permit them a remedy. It would only be in those cases where the cause of action itself would persist that equity could extend its hand upon proper justification and make available a remedy otherwise foreclosed at law, and this is not such a case.”

Judgment below is reversed and judgment rendered that appellee take nothing by her suit.


text:
    Leslie E. JONES, Appellant, v. Paul C. WALTER et al., Appellees.
    No. 7744.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1967.
    Rehearing Denied Dec. 18, 1967.
    Allen & Allen, Perryton, Gibson, Ochs-ner, Harlan, Kinney & Morris and J. Had-ley Edgar, Jr., Amarillo, for appellant.
    Gene E. Steed, Perryton, Linn & Helms and Richard N. Countiss, Spearman, for appellees.
   DENTON, Chief Justice.

This is a suit to construe the will of H. J. Boisdorf, deceased. The case was tried before the court on stipulated facts. Leslie E. Jones, surviving husband of Helen Jones, brought suit against the Independent Executors and Betty Jane Ries and Robert E. Jones, children of Helen W. Jones, to construe the will as it pertains to the estate affecting Helen Jones. From an adverse judgment, Leslie E. Jones has appealed.

The material provisions of the will are:

“THIRD: I give, devise and bequeath to my beloved wife, Genevieve G. Bois-dorf, all of the property which I may die seized of, community and separate, real, personal or mixed, and wherever situated, with full right and title thereto and to possess each, all and every power to convey, transfer and dispose of said property in any manner desired by her. For purpose of clarification, my estate shall be deemed to consist of one-half (½) of all property held or owned in my name or in the name of my wife, Genevieve G. Boisdorf, or jointly with Genevieve G. Boisdorf.
“FOURTH: If the said Genevieve G. Boisdorf be deceased when this will is offered for probate and upon her death, if any property be remaining, it is my will and desire, and I do hereby give, devise and bequeath all of my property, real, personal and mixed, as follows:
(a). To Paul C. Walters, Leona W. Schubert, Helen W. Jones, Katherine W. Lawson, Marie W. Bruner and Gertrude Hoffman Walter (the first 5 named being children of my deceased sister, Anna B. Walter, the said Gertrude Hoffman Walter being the surviving wife of a deceased son of Anna B. Walter) share and share alike, an undivided %2nds of my estate, including all real estate and personal property. It is intended that the six devisees and legatees named herein shall, as a group, receive an undivided %2nds of my estate.
If any legatee.or devisee named in subdivision (a) t(3r[;(h), inclusive, be deceased, then the bequest or devise shall not lapse, but such interest shall be vested in the heirs of such decedent in accordance with the laws of descent and distribution.
“FIFTH: In order to prevent difficulties after my death and after the death of my wife, Genevieve G. Boisdorf, and although I have heretofore provided in this will that if the said Genevieve G. Boisdorf be living, then all of my property shall be vested in her and there shall be no restraint whatever on her free use and disposition of same, it is intended, and I direct that after the death of the said Genevieve G. Boisdorf, then if any property be remaining in the hands of the said Genevieve G. Boisdorf at the time of her death, one-half of such property shall pass to and be thereafter vested in the legatees and devisees hereinbefore listed in sub-section (a) to (h), inclusive, of paragraph 4 hereof. The other one-half of such property so remaining on hand at the time of her death shall go in accordance with the provisions of the separate will of the said Genevieve G. Boisdorf. This provision, however, shall never be construed to interfere in any manner with the free and unhampered right of the said Genevieve G. Boisdorf to handle all of the property of my estate during her lifetime in any manner by her desired.”

H. J. Boisdorf died on January 9, 1959 and his will was duly probated. Helen Jones, niece of Mr. Boisdorf, died on November 16, 1959. Her will, leaving substantially all of her estate to her husband, appellant herein, was duly probated. Genevieve Boisdorf, wife of H. J. Boisdorf, died on June 12, 1965. Appellant seeks to obtain the interest which his deceased wife, Helen Jones, acquired under the will of H. J. Boisdorf.

It is appellant’s contention the will bequeathed to Helen Jones a vested remainder in an undivided %2nds of H. J. Bois-dorf ⅛ estate, subject to the life estate of Genevieve Boisdorf. It is appellees’ position the will bequeathed a contingent remainder interest to Helen Jones which would not vest until the death of Genevieve Boisdorf; that since Helen Jones predeceased Mrs. Boisdorf, the share of the estate would not vest in her but pass to her heirs under the last subparagraph of the fourth paragraph of the will. The trial court rendered judgment in conformity with appellees’ position.

The third paragraph of the will, taken alone, devised a fee simple estate to Genevieve Boisdorf. Article 1291, Vernon’s Ann.Civ.St. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412. First National Bank of Corsicana v. DeFoe (Tex.Civ.App.), 384 S.W.2d 926; Young Memorial Home for Aged Women v. Nelms (Tex.Civ.App.), 223 S.W.2d 302 (Ref. N.R.E.). The fourth and fifth paragraphs placed a valid limitation upon the estate devised to Genevieve Boisdorf only as to the property belonging to her at her death. However, as devisee of the fee, Genevieve had complete power of control and disposition of the property during her lifetime. The estate so created has been designated a conditional or defeasible fee. Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876; Singer v. Singer, 150 Tex. 115, 237 S.W.2d 600. The condition imposed was that if Genevieve should die possessed of any of the property devised by the will, such remaining property would then pass to those named in paragraph four of the will.

These conditional beneficiaries, under paragraphs four and five, were given no present specific interest in any of the testator’s property. They had no future interest except to such portion which remained undisposed of by the testator’s wife at her death. Harell v. Hickman (supra); Killough v. Shafer (Tex.Civ.App.), 358 S. W.2d 748 (Ref. N.R.E.); Randall v. Estes (Tex.Civ.App.), 218 S.W.2d 338 (Ref. N.R.E.). The interest of these heirs was contingent and such rights vested at the death of Genevieve and then only as to the property she then possessed. Helen Jones, one of the contingent devisees, predeceased Genevieve Boisdorf. Thus, at the time of Helen’s death, she had no vested interest in the estate. At the time of Genevieve’s death, the remaining estate became vested in the heirs under the fourth and fifth paragraphs of the will. By the clear and unambiguous language of the last sub-paragraph of the fourth paragraph and paragraph five the contingent interest of Helen Jones, then deceased, vested in her heirs, Betty Jane Ries and Robert E. Jones upon the death of Genevieve Boisdorf. No interest in the Boisdorf estaate passed under the will of Helen Jones to the appellant herein.

The judgment of the trial court is affirmed.


text:
    Frances E. STEGALL, Trustee et al., Appellants, v. Sally Stegall FULWILER et al., Appellees.
    No. 7745.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1967.
    Rehearing Denied Nov. 20, 1967.

      Kirby & Ratliff and Ted L. Sansom, Lit-tlefield, for appellants.
    Wynne, Jaffe & Tinsley and Yandell Rogers, Jr., Dallas, for appellees.
   NORTHCUTT, Justice.

Frances E. Stegall in her capacity as trus tee for her son and joined by her husband, F. L. Stegall, sued Sally Stegall Fulwiler and husband, J. E. Fulwiler, Jr., and J. R. Stegall for reformation of that portion of a certain deed from J. R. Stegall to Frances E. Stegall, Trustee, which recited a note for $24,500, payable in ten years, it being the contention of plaintiffs that the note should have been payable in twenty years.

Sally Stegall Fulwiler and husband, J. E. Fulwiler, Jr., answered plaintiffs’ petition denying each and every allegation contained in plaintiffs’ petition, and filed their cross-action. pleading the assignment dated April 19, 1961, wherein J. R. Stegall assigned the note, given by the plaintiffs as part of the purchase price of the land in question to Sally Fulwiler. The Fulwilers further pleaded that from and after said transfer that Sally Stegall Fulwiler was the owner of all the right, title and interest of the said J. R. Stegall in and to said note, the underlying indebtedness, and all liens and titles in and to said land that J. R. Stegall had or claimed and attached a copy of the assignment to her cross-action. The cross-plaintiffs sought judgment for the interest unpaid on said note.

The case was tried to the court without a jury. After a final hearing the court entered judgment that plaintiffs, Frances E. Stegall and husband, F. L. Stegall, take nothing on their prayer for reformation of the deed and granted judgment in favor of Sally and her husband for $2,940 with interest thereon at the rate of 6 per cent per an-num. The $2,940 being interest on the $24,-500 for the annual interest payments due April 10, 1964, and April 10, 1965. The court also found that Frances E. Stegall and husband and Sally Stegall Fulwiler and her husband had agreed upon a partition of the jointly-owned tract of land here involved and approved the partition agreement. From that judgment plaintiffs perfected this appeal.

J. R. Stegall owned all of the west half of Section 61, Block B, Mulvin Blum & Blum Survey, Bailey County, Texas, together with one-half of the oil, gas and mineral leasehold estate acquired by J. R. Stegall from Cecil Vernon Cole by deed dated March 24, 1961. There was a lien against this land in the sum of $18,000 in favor of Hancock Mutual Life Insurance Company. On April 10, 1961, J. R. Stegall executed a deed to an undivided one-half of the west half of said Section 61 to Frances E. Stegall, Trustee, and had the deed filed for record on April 24, 1961. Frances E. Stegall was trustee for her son, Frank Stegall II. Frank Stegall was the nephew of J. R. Stegall. The consideration expressed in the deed to Frances E. Stegall, Trustee, was $10 and other good and valuable consideration cash in hand paid, the receipt of which was acknowledged and a vendor’s lien note in the principal sum of $24,500 executed by the grantee to the grantor, being due and payable on or before ten years from date, note bearing interest from date at six per cent per annum, interest payable annually as it accrues, beginning April 10, 1962, and the further consideration that grantee agreed to pay one-half of the $18,000 lien against the property. J. R. Stegall retained an express lien in the deed in his own behalf to secure the payment of the unpaid purchase money and thereby retained the superior title to the property.

- On the same date, April AO, 1961, J. R. Stegall executed a deed to an undivided one-half of the west half of said Section 61 to Sally Stegall, a feme sole, and had the deed filed for record on April 24, 1961. Sally Stegall was the daughter of J. R. Stegall and being the same person herein sued as Sally Stegall Fulwiler. The deed to Sally Stegall recited the consideration of $10 and other valuable consideration and the love and affection which he had for his daughter and the agreement by the grantee to pay to Hancock Mutual Life Insurance Company an undivided one-half of the $18,-000 due to Hancock Mutual Insurance Company.

On April 19, 1961, J. R. Stegall transferred the $24,500 note above mentioned to Sally Stegall and had the transfer filed for record on March 24, 1961. The transfer provided that J. R. Stegall sold, transferred and conveyed unto Sally Stegall said note and said lien and all liens and titles held by him in and to said land.

J. R. Stegall sent the $24,500 note due and payable in ten years to Frances E. Stegall to sign and return but she never signed and did not return the note. On November 29, 1961, J. R. Stegall wrote a letter to Frances E. Stegall stating he was enclosing a note for the sum of $24,500 payable twenty years after date and requested her to sign and return it. He had previously requested her to sign the note payable ten years after date that she had refused to sign. On April 24, 1963, J. R. Stegall wrote Frances E. Stegall requesting the note but it was never delivered and at the time of this trial she still had the note that was made payable in twenty years.

The plaintiffs requested the court for findings of fact and conclusions of law. In accordance with such request, the court found, as a fact, that the record filing of the deed and by transmitting of the vendor’s lien note to Frances E. Stegall for execution and return by her, J. R. Stegall offered to sell and convey the real estate under the terms and conditions set out in the deed; that she had iactual knowledge of the terms and conditions of the sale offered by J. R. Stegall though she had not actually seen the deed; that by taking possession of the property she accepted J. R. Stegall’s offer to sell and convey as set out in the deed; that she ratified the purchase transaction by making payments upon the lien indebtedness as specified in the deed and by paying taxes upon the property; that J. R. Stegall transferred all his rights to the note and rights in the property to Sally Fulwiler and that she had at no time authorized him to sell and convey the real estate for any consideration or under any terms or conditions different from those specified by the recitals of the deed received in evidence. The court, in the conclusions of law, held that the acceptance of the sale by J. R. Stegall, Frances E. Stegall, as Trustee, became obligated to pay the consideration set forth in the deed, as specified by said deed, and her acceptance of delivery of said deed was conclusively presumed from her assumption of the incidents of ownership of the land in question; that after J. R. Stegall sold and transferred the $24,500 note (payable as set out in the deed) said lien and all liens and titles held by him to Sally Stegall Fulwiler in and to said land that he had no power or right to negotiate with Frances E. Stegall for sale and conveyance of the real estate under any terms and conditions or for any consideration other than that specified by the recitals of the deed in question; further holding no question of fraud or mutual mistake was raised by the pleadings or the evidence in the case.

Hereafter Frances E. Stegall and husband will be referred to as appellants and Sally Stegall Fulwiler and husband as ap-pellees. J. R. Stegall does not appear in this appeal. Appellants present this appeal upon three assignments of error contending the court erred in giving effect to the note since no such note ever existed and the deed shows upon its face that the note is not considered contractual in nature; that the court erred in holding the appellants had accepted the deed by assuming the incidents of ownership without finding when such assump-f tion occurred, and in concluding after the assignment to appellees that J. R. Stegall had no right or power to negotiate different terms or consideration. Surely after selling all his right, title and interest in the property he would have no further rights to contract as to such property. Judge Alexander, in the case of Robinson v. Smith, 130 S.W. 2d 381 (Tex.Civ.App.-Waco, 1937, writ ref’d) stated:

“It is a well recognized rule that where a vendor sells land and retains an express lien in the deed in his own behalf to secure the payment of unpaid purchase money, he thereby retains the superior title to the property. 43 Tex.Jur. 228. This superior title may be conveyed to a third person along with the debt and lien where the assignment expressly so provides.”

Appellants pleaded that Frances E. Ste-gall and Sally Stegall Fulwiler were the joint owners in fee simple and together were the sole owners of the half section of land here involved each owning an undivided one-half interest in and to said real estate out of a common source of title; namely, J. R. Stegall, by virtue of two deeds recorded in Volume 85, Pages 182 and 185, Deed Records of Bailey County, Texas. These are the two deeds J. R. Stegall executed and had filed for record transferring the property to the parties here involved. After making the deeds and transferring all his interest and title in the real estate in the assignment of the note to Sally Fulwiler he had no further interest or right to said real estate and could make no change to the terms of the note in question. Appellants do not plead or offer any evidence that the provisions in the deed requiring the $24,-500 note would be paid within ten years with interest payable annually was inserted in the deed by reason of fraud, accident or mutual mistake. There is nothing in this record to show J. R. Stegall was ever obligated to deed the land to appellants.

Under this record if there was ever a misunderstanding or mistake in connection with the sale of this property in question, it was during the making of the oral contract back when J. R. Stegall was buying the land from Mr. Cole. A misunderstanding or mistake occurring during the making of the oral contract is not grounds for reformation. It merely avoids the agreement. Continental Casualty Company v. Bock, 340 S.W.2d 527 (Tex.Civ.App.-Houston, 1960, writ ref’d n. r. e.); Callihan v. White, 139 S.W.2d 129 (Tex.Civ.App.- Eastland, 1940, no writ); Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (1935).

The rule of equity which affords a party relief as against a written instrument must depend upon fraud or mutual mistake. It is not sufficient grounds for reformation that one of the parties has made a mistake but it must be a mutual one. Ostrom v. Jackson, 127 S.W.2d 987 (Tex.Civ.App.—Fort Worth, 1939, no writ) and the many cases there cited. See also Holchak v. Clark, 284 S.W.2d 399 (Tex.Civ.App.-San Antonio, 1955, writ ref’d).

It is stated in Clopton v. Cecil, 234 S.W.2d 251 (Tex.Civ.App.—San Antonio, 1950, writ ref’d n. r. e.) as follows: “The determination of lawsuits of this kind necessarily depends upon the facts of the particular case, such as, the nature of the mistake, the action of the parties in dealing with the property after the mistake has occurred and similar matters.” Soon after the deed was recorded appellants received the note here involved which provided it was payable in ten years. Without having the deed changed the appellants have ever since claimed title to the property and paid Hancock Mutual Life Insurance Company payments as the deed provided that was assumed, paid taxes and also paid interest for two years. In order that an instrument may be- reformed, it must appear that the part sought to be changed or expunged was inserted through accident, fraud or mutual mistake. There is neither fraud nor mutual mistake pleaded or proven herein.

Judgment of the trial court is affirmed.


text:
    Kenny Warren VIALL and Donald Earl Armstrong, Appellants, v. The STATE of Texas.
    No. 7760.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1967.
    Culton, Morgan, Britain & White and Neal R. Allen, Ochsner, Nobles & Baugh-man, and Harold W. Ochsner, Amarillo, for appellants.
    George Dowlen, Canyon, for appellee.
   NORTHCUTT, Justice.

This appeal concern's the sufficiency of the petitions filed agaihst Kenny Warren Viall and Donald Earl Armstrong under Art. 2338-1, Vernon’s Ann.Civ.St., commonly known as the Juvenile Delinquency Act. The cases were consolidated for hearing herein as the exact issues were involved in each case. The first count of the petitions is not involved in this appeal as the hoys were found not guilty under that count and only the exceptions to count two are here considered.

The petitions alleged in count two that each boy was a delinquent child under the law “In that the said boys (each petition setting out the names of the boys) habitually deported himself so as to injure and endanger the morals of himself”. The defendants excepted to that count for the reason that said count did not sufficiently appraise the defendants of the specific acts of misconduct which the petitions charged were habitual and which endangered the morals of the defendants, and further excepting because the pleadings did not appraise the defendants of the matters which would be offered in evidence and did not give the defendants fair notice of the evidence that would be offered by petitioners in support of that particular count of the petition. Those exceptions were overruled by the court. By appellants’ first point of error here presented, it relates to the error of the court in overruling those exceptions.

Appellants present three points of error but since we are of the opinion the court erred in overruling the exceptions to count two, we will consider only appellants’ first point of error. No brief for the State has been filed. This is a civil action; to illustrate, in a suit involving negligence, it would not be sufficient to merely plead a defendant was negligent. The pleadings should allege facts constituting negligence. Art. 2338-1, sec. 7, V.A.C.S. provides for . “A petition alleging briefly the facts which bring said child within the provision of this act”. The petitions alleging the boys were delinquent children under the law in that they habitually deported themselves so as to injure and endanger their niorals are mere conclusions and do not plead: .facts as required, under Art. 2338-1. Carter v. State, Tex.Civ.App., 342 S.W.2d 593 and cases there cited.

We are of the opinion, and so hold, that the allegations set out in count two of the petitions were clearly insufficient and that the petitions before us failed to properly allege facts constituting an offense against the appellants because of the errors here determined. The judgment of the trial court is reversed and the causes are remanded.


author: McDONALD, Chief Justice.

text:
    Loraine McMURREY, Appellant, v. SHELL OIL COMPANY, Appellee.
    No. 4656.
    Court of Civil Appeals of Texas. Waco.
    Oct. 5, 1967.

      W. C. Davis, Bryan, for appellant.
    W. G. Winters, Jr., R. H. Whilden, Houston, Bill Palmos, Hearne, for appellee.
   OPINION

McDONALD, Chief Justice.

Final judgment was rendered in this cause on May 22, 1967 after trial before the court without a jury. Appellant gave notice of appeal on the same day, and on June 20, 1967 filed her appeal bond. No Transcript or Statement of Facts has been filed in this court, nor has appellant filed motion for enlargement of time within which to do so. More than 75 days have elapsed since judgment, and more than 30 days since the last date upon which appellant could for good cause seek enlargement of time.

Appellee has filed its motion for affirmance on certificate under Rule 387, Texas Rules of Civil Procedure. Motion granted at cost of appellee.

Affirmed on certificate.


author: LANGDON, Justice.

text:
    Travis BECK, Appellant, v. Robert L. SOUTH, Appellee.
    No. 16870.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 29, 1967.
    Rehearing Denied Jan. 26, 1968.
    Walter S. Fortney and Richard Owens, Fort Worth, for appellant.
    Jones & Morris, and. Herman I. Morris, Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

This is a suit for specific performance on a written contract for the sale of real property. The case was tried to the court without a jury and a take nothing judgment was entered against the plaintiff who has perfected this appeal.

By a single point of error the plaintiff contends that the court erred in'holding that he was not ready, willing and able to perform pursuant to the terms of the contract in question.

The terms of the contract pertinent to this appeal are the purchase price of $3,500 cash, of which $50 was paid by way of earnest money, and an agreement to consummate the sale within ten days from the date the title company approved title. The record reflects that under questioning by the court the plaintiff, who was named as purchaser in the contract, did not have the cash to close the transaction within the period designated.

This Court, in reviewing the action of the trial court, is required to test it under the rule that if, discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953).

“In a non jury case, the trial court is the judge of the credibility of witnesses and the weight to be given their testimony, and findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. * * *

“Where there is; probative evidence to support the findings and judgment, they are controlling on the reviewing court and will not be disturbed, «fen though the evidence is conflicting and the appellate court might have reached a different conclusion. * * ” 4 Tex.Jur.2d 398, § 839. See also Denton v. Bennett, 364 S.W.2d 857, 858 (Tex.Civ. App., 1963, refused n.r.e.).

The point of error is overruled and the judgment of the trial court is affirmed.


author: BARRON, Justice.

text:
    G. FITZGERALD et ux., Appellants, v. RUSS MITCHELL CONSTRUCTORS, INCORPORATED, et al., Appellees.
    No. 50.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 3, 1968.
    Rehearing Denied Jan. 31, 1968.

      Harry Burns, Houston, for appellants.
    James Greenwood, III, Vinson, Elkins, Weems & Searls, Houston, for appellees.
   BARRON, Justice.

This is a damage suit brought by G. Fitzgerald and wife, Martha Fitzgerald, by reason of injuries sustained by Mrs. Fitzgerald in an automobile collision between her automobile and a truck owned by Russ Mitchell Constructors, Incorporated, and operated by Wesley Brown in the early afternoon of September 26, 1962. Defendants are Russ Mitchell Constructors, Incorporated and Wesley Brown, appellees, here. Prior to the trial, defendants admitted that Brown had been negligent, that his negligence was a proximate cause of the accident, and that he was in the course of his employment with Russ Mitchell Constructors, Incorporated when the accident occurred. The suit was defended on the issues of contributory negligence and damages.

The trial court, at the ¡conclusion of the testimony, submitted special issues concerning Mrs. Fitzgerald’s conduct. The jury found: (1) that she operated her automobile at a greater rate of speed than that at which it would have been operated by a person of ordinary prudence in the exercise of ordinary care' under the same or similar circumstances (2) that she failed to apply the brakes onJher automobile at a time when a person of‘ordinary prudence in the exercise of ordinary care acting under the same or similar circumstances would have applied the brakes. The jury further found that each act was a proximate cause of the collision made the basis of this suit. The jury also found the damages to plaintiffs to be $3,000.00. The Fitzgeralds have duly perfected their appeal to this court based on “no evidence” and “insufficient evidence” points of error.

The accident occurred at the intersection of Bellaire Boulevard and Westpoint Street in Harris County. Bellaire Boulevard is a six-lane roadway, divided into east and west-bound segments by a wide esplanade. Westpoint intersects Bellaire from the north only, making a “T” intersection. The accident occurred when Brown crossed in front of Mrs. Fitzgerald as he was making a left turn off Bellaire Boulevard onto Westpoint. Mrs. Fitzgerald was heading west and Brown was heading north at the time of the collision. It was raining and the streets were wet. When Mrs. Fitzgerald had previously stopped her car several blocks away, she had required more than three but less than six car lengths to stop it. She saw the truck when she was a little farther than six car lengths from the intersection. The truck was in the esplanade area heading north toward Westpoint Street but it had not yet entered the west-bound traffic lanes on Bellaire. She testified that she was driving between 20 and 25 miles an hour at that time, and she estimated the speed of the truck at between 5 to 10 miles an hour. She did not slow her vehicle as she approached the intersection after she saw the truck and she testified that she kept watching the truck until the accident. She testified that she applied her brakes as soon as Brown started into the intersection. She thought the truck was stopping, but it never did stop. She was three or four car length back at that time. The truck never did slow its speed. The brakes held, but the wet street caused the car to slide. She waited until the truck was already entering the intersection!to apply the brakes, but it was too late to stop at 20 to 25 miles per hour on a wet street! She struck the truck broadside with sufficient force to knock it around and to extensively damage the front end of the car she was driving.

On a “no evidence” point, this court may consider only the evidence and the inferences which support the findings and reject those which are contrary to the findings of the jury. In determining the “insufficient evidence” points, we must consider and weigh all of the evidence and set aside the verdict and remand only if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.

The record is clear that Mrs. Fitzgerald saw the truck at least six car lengths away, and that she knew it was going to enter the intersection about four car lengths back. While the question is close, we believe the jury had the right to determine from the evidence that Mrs. Fitzgerald, in the exercise of ordinary care and prudence with due regard for her own safety, had ample time to apply her brakes at a safe distance from the truck and in time to stop her car so as to avoid the accident. The jury had the further right to believe from the evidence that the speed of 20 to 25 miles per hour on a wet street under the circumstances was not in accord with the act of an ordinarily prudent person under the same or similar circumstances. The fact that she was driving below the speed limit of a presumed 30 miles per hour is not material. This does not relieve her of the common law" duty to operate her vehicle at a speed at which an ordinarily prudent person would operate a vehicle under the same or similar circumstances. Vardilos v. Reid, 320 S.W. 2d 419, 423 (Tex.Civ.App.), no writ history. In any event, the issues were fact issues to be determined finally by the jury. Prasek v. Dudley, 395 S.W.2d 876, 880 (Tex.Civ.App.), writ ref., n. r. e. This is not a situation where speed and the application of brakes could not be the cause, in fact, of the accident. Compare Taylor v. Brooks, 392 S.W.2d 878 (Tex.Civ.App.) writ ref., n. r. e., and Texas & Pac. Ry. Co. v. McCleery, 418 S.W.2d 494 (Tex.0Sup.). It is elementary that where material facts are controverted, or are such that different inferences may be reasonably drawn therefrom, a question of fact is raised for the jury’s determination. Roberts v. Jordan, 408 S.W.2d 525 (Tex.Civ. App.), no writ history; Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Henderson v. Smith, 354 S.W.2d 429 (Tex.Civ.App.), no writ history.

We cannot substitute our judgment for that of the jury. The evidence is sufficient to support- the trial court’s judgment.

Affirmed.


author: RUDDY, Judge.

text:
    Flora F. BODINE, Plaintiff, Appellant, v. WOOD TECH CORPORATION, Defendant, Respondent.
    No. 32750.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.
    Sherwood R. Volkman, St. Louis, for plaintif f-appellant.
    Berthold, Bialson, Robinson & Corrigan, Sylvan H. Robinson, St. Louis, for defendant-respondent.
   RUDDY, Judge.

Plaintiff brought this action to recover a $300 down payment she made on twenty-six trusses she ordered from defendant, but which plaintiff refused to accept when delivered. Defendant filed a counter-claim for the balance due. In a court tried case judgment was entered against plaintiff on her petition and in favor of defendant on its counterclaim. Plaintiff appealed.

Plaintiff’s testimony as to the conversation and circumstances that took place at the time she ordered the trusses is diametrically opposed to that given by defendant’s witnesses.

The evidence adduced in behalf of plaintiff shows that on or about August 28, 1964, plaintiff and her builder visited defendant’s place of business where plaintiff spoke to Mr. Reed, an employee of defendant, and ordered from him twenty-six roof trusses for a house she was building. Plaintiff was unacquainted with technical building terms and said the builder was “not a professional builder.” Plaintiff had no blueprints, building plans, or drawings, and no specifications. Plaintiff told Reed that she “wanted the 67-inch truss from the plate to the peak,” explaining that she “ * * * knew none of the technical terms, how they could figure it. That is why I came to him (Reed).” The overall length “across the building” was thirty-seven feet, one inch. The builder did not participate in the discussion. After a twenty-five minute discussion a written order was prepared by Reed in the presence of plaintiff and her builder. Plaintiff admitted that the order calling for twenty-six roof trusses with a pitch of five in twelve, 37 foot length, with 18½ inch overhang was prepared in her presence and was seen by her. Plaintiff could not be sure whether Reed explained what “five in twelve” meant, however, stating, “I would not have understood it.” Plaintiff was given a copy of the order and acknowledged that there was stamped on the order the following:

“ACKNOWLEDGMENT OF ORDER

Please check carefully and advise promptly of any correction. Once fabrication has started, this order is non-cancellable. Left over items may not be returned.”

This order was identified in the record as defendant’s Exhibit A. Plaintiff admitted the total price shown in the order was $598.02 and she paid on account at the time the order was prepared the sum of $300.00, leaving a balance due of $298.02. Plaintiff said that Mr. Hurwitz, president of defendant corporation, did not participate in the conversation on her visit to the office of the defendant company. Plaintiff denied that Reed made any sketches or drawings to help her determine what the truss would look like after it was fabricated. When the trusses were delivered by defendant plaintiff refused to accept them because they were 97 inches from plate to peak instead of 67 inches, which plaintiff claims she ordered.

Defendant produced two witnesses: Mitchell M. Reed, Jr., who was employed by defendant company as a sales representative, and Mr. Hurwitz, President of defendant corporation, who was a registered professional engineer. Both of these witnesses participated in the conversation had with plaintiff on August 28, 1964. Their testimony shows that they spent approximately one-half hour with plaintiff and Mr. Kerber, her builder. Plaintiff told them that she had looked at trusses in defendant’s yard and believed that these were the kind she wanted. She said she wanted to purchase some new trusses for a building she was erecting. Plaintiff did not have any plans or specifications. Virtually all of the conversation was had with plaintiff. They discussed the size of trusses that plaintiff wanted and when they asked plaintiff about the pitch she said “ T don’t know what pitch I want.’” Plaintiff told them that the width of the building was thirty-seven feet and one-half inch. They told her they were particularly concerned with the width of the building and asked her to double check that dimension and they said that someone later called them and verified the width as thirty-seven feet. Reed drew three different types of trusses, showing the different pitch on a piece of paper, using a protracter which he said was adjustable and could be adjusted to any pitch. He explained to plaintiff what a five in twelve pitch meant. They discussed the overhang and gave the plaintiff the maximum overhang which could be done for a five in twelve pitch, telling her that eighteen and one-half inches was the most that could be obtained. They s^id they made the five in twelve pitch because they understood that was what plaintiff wanted and said they would have given plaintiff the sixty-seven inch, from plate to peak, if that was what she ordered. They thought plaintiff understood what she was to get. After the drawings were made plaintiff selected the five in twelve pitch. In explaining what is meant by a five in twelve pitch the witnesses said, that it was basically an angular measurement. That a five in twelve pitch means, that for every twelve inches of horizontal dimension the truss or the rafter would rise five inches. The witnesses said the eventual height was determined by what the horizontal run is and the horizontal run is a significant factor in determining what the height between the plate and the peak will eventually be. These two witnesses, in their testimony, reiterated that plaintiff did not give them the height and that they talked to her about the length, the size of the cord and the pitch, because this was interrelated to several other factors, namely, to the overhang, to the strength of the truss and to the appearance and these were things that were discussed with plaintiff. They said: “ * ' * * There was some difficulty in arriving at a decision as to which pitch she wanted. * * * ” Finally, after they drew three different sketches of the pitch of the trusses she selected one of them, which was the five in twelve pitch.

Reed prepared the order, identified as defendant’s Exhibit A, in the presence of plaintiff and her builder. Some of the figures appearing in Exhibit A were placed in there by Hurwitz. They said plaintiff was given a copy of the order as a receipt for her down payment and that she looked it over before she left the office. Plaintiff did not sign the order. The twenty-six trusses were fabricated in complete accordance with the order. Reed accompanied the delivery of the trusses and wanted to put some of them up on the roof for plaintiff to look at but she would not allow them to be placed there. The trusses were then taken back to the plant. Hurwitz said the trusses were resold for $11.00 a piece and plaintiff’s account was credited with $286.-00, leaving a balance due of $12.02. This was the amount of the judgment rendered in favor of defendant on its counter-claim.

The only point relied on by plaintiff is that the court erred in rendering judgment for defendant because the “contract” prepared by defendant “ * * * was ambiguous, and should have been construed against the maker.” This rule of construction is inapplicable in this case because plaintiff did not sign the order. The sole question in this case, as we see it, is which set of witnesses is to be believed. Briefly put, plaintiff’s witnesses said she ordered a sixty-seven inch truss from plate to peak and defendant’s witnesses said plaintiff ordered a truss with a pitch of five in twelve from a series of three drawings. This was a different size than plaintiff said she ordered but was the size defendant’s witnesses said she ordered. Thus, we have conflicting verbal testimony. Defendant has some support for its version of the conversation that took place, in the written order it prepared, a copy of which was given to plaintiff.

We think that what we said in the case of Loague v. Loague, Mo.App., 407 S.W.2d 92, 1. c. 101 controls this case. We said: “ * * * We are admonished by Section S10.310 RSMo 1959, 31 V.A.M.S. (Civil Rule 73.01(d)) that the judgment shall not be set aside unless clearly erroneous and due regard is to be given to the opportunity of the trial court to judge of the credibility of the witnesses. While we are not bound by the findings of tne trial court it has been stated numerous times that we should not disturb such findings unless we can point to some good reason for doing so. Forbis v. Forbis, supra [Mo.App., 274 S.W.2d 800]. Where there is a sharp conflict in the testimony and the evidence does not greatly preponderate one way or the other, we resolve the conflict by according due deference to the findings of the trial judge because of his opportunity to observe the conduct and demeanor of the parties and their witnesses and to weigh, evaluate and assess their testimony. Oakes v. Oakes, supra. (Mo. App., 303 S.W.2d 940)”

We cannot say in the instant case that the judgment rendered below was clearly erroneous. A determination by the trial court depended upon the credibility it attached to the witnesses for the respective parties. It is obvious from the trial court’s judgment that it believed the defendant’s witnesses. Under Section 510.-310, supra, and Civil Rule 73.01(d), V.A. M.R., we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. We defer to the findings and judgment of the trial court.

The judgment should be affirmed. It is so ordered.

ANDERSON, P. J., and MICHAEL F. GODFREY, Special Judge, concur.


text:
    James M. THURMAN, Plaintiff, Respondent, v. K. L. KOENIG REALTY COMPANY, Defendant, Appellant.
    No. 32717.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.

      Thurman, Nixon, Smith & Howald, Louis Jerry Weber, Hillsboro, for defendant-appellant.
    Dearing, Richeson, Weier & Roberts, John A. Schneider, Hillsboro, for plaintiff-respondent.
   RUDDY, Judge.

Plaintiff brought this action in three counts to recover sums he claims are due him for various services rendered. He received a jury verdict on all three counts and defendant appeals from the judgment entered by the trial court.

COUNT I. Plaintiff in this count seeks compensation he claims is due him under a written contract whereby he was employed as Sales Manager by defendant. We state some of the antecedents before discussing the contract and plaintiff’s claim.

Defendant company was engaged in a general real estate business and began business as a corporation on January 1, 1964. Kurt L. Koenig was the principal stockholder and president of the company. He took no commissions, but according to financial statements did draw a salary. Koenig in describing the services he rendered to the company said that he helped the salesmen procure the listings, taught classes for new salesmen and conducted sales meetings. Although the corporation was in existence from the first of January, 1964, the company did not have the Grand Opening of its offices until February, 1964. The first four or five weeks of the year were, devoted to procuring listings of properties for sale. The record is not clear as to when plaintiff began his employment with the defendant company as a real estate salesman; however, it is obvious from the record that such employment started sometime prior to June 1, 1964. His compensation as a real estate salesman was strictly on a commission basis. A salesman of the company got twenty-five percent of the commission for obtaining the listing of the property and a selling salesman got thirty percent of the total commission and if the selling salesman also obtained a listing for the property he got a total of fifty-five percent of the total commission received by the company. Plaintiff was paid all of the commissions due him (except the one claimed in Count 2) on listings obtained and sales made as a real estate salesman. He offers no complaints in this respect. He received his commissions as a real estate salesman while operating under the contract hereinafter referred to. As a matter of fact he received commissions for listings and sales consummated after the termination of his employment, September 30, 1964.

Under a contract effective June 1, 1964 plaintiff began employment as Sales Manager for the defendant company. This contract was in writing and under its terms plaintiff was “to act as the Sales Manager of the Company, from the first day of June 1964, and thereafter until this agreement shall be terminated by either of the parties hereto giving to the other party one months’ notice in writing of such intended termination.” The agreement thereafter provided that plaintiff would devote the whole of his time during the business hours of the company to the business of the company. The fourth paragraph of the contract, pertinent to our discussion, reads as follows:

“The Sales Manager shall be entitled by way of remuneration for his services a commission of Fifteen Percent (15%) ■of the net profits of the company in each year; such net profits shall be certified by the auditors of the Company and their certificate shall be conclusive. The aforesaid audit of the Company’s Books shall be made as soon as reasonably possible, after the first of each year.”

On August 30, 1964 plaintiff notified the defendant company that he would terminate his employment as Sales Manager on September 30, 1964. Plaintiff testified that he performed all of his duties as Sales Manager during the four month period and that during this time he had twelve to fourteen salesmen working under his direction. He was in charge of their activities. Kurt Koenig, the President of defendant company, admitted at the trial that nothing had been paid to plaintiff for bis duties as Sales Manager.

The attorney who drafted the contract was produced as a witness by defendant and he testified that when he “wrote” the contract both parties were present. All of his testimony came in without objection. When he was asked concerning a provision about the fifteen percent commission and how it was arrived at, he answered, “I asked them both about the fifteen per cent at the end of the year. I said what do you mean, a year from the date of the contract or the calendar year. They said the calendar year.” Again the witness said, “I explained the contract was from June 1st to the end of the calendar year and when was the audit to be made. The fifteen per cent, how determined ? They said for the calendar year.” Again when he was asked how the fifteen percent commission was to be calculated, he answered, “Supposed to be fifteen per cent of the yearly basis, '* * f>

When Kurt Koenig testified he was asked if there was any discussion about the commission and how the fifteen percent would be broken down and how plaintiff was to be paid, he answered, “Yes, there was.” Thereafter, there was an objection lodged by plaintiff contending that the contract speaks for itself as to the manner of payment and further contended that there was no ambiguity in the contract stating that “the fifteen per cent is plainly spelled out.” Defendant contended the contract was ambiguous and the testimony was offered by way of explanation. Thereafter, the court overruled plaintiff’s objection and permitted evidence relative to what was said. The witness testified, “Jim (plaintiff) and I instructed Mr. Evans to write a contract whereby Mr. Thurman would receive fifteen per cent of the profit over a period of a year. We specifically stated a year, due to the fact that real estate contracts overlap each other. It is virtually impossible to break it down into months. * * * ” The witness further testified that the audit was made and the company was prepared to show the figures to Mr. Thurman.

Bernard J. Menkhaus testified that he was an accountant and kept the books for the defendant company. He established the bookkeeping system and for a good portion of the year 1964 made all of the entries. The books were kept on a cash receipts and disbursement basis of accounting. He identified plaintiff’s Exhibit 4 as a profit and loss statement prepared by him for the four months ending September 30, 1964 and stated that the exhibit accurately reflected the income and disbursements of the defendant company for the period from June 1, 1964 to September 30, 1964. The net profit shown on said Exhibit 4 for the four months ending September 30, 1964 was $11,402.97. This was the net profit after deducting as an item of expense salaries paid to Kurt L. Koenig, President of the company, in the amount of $6,857.12. Plaintiff offered this exhibit in evidence and it was admitted without any objection on the part of the defendant.

During the examination of Kurt Koenig he testified that he caused an audit to be made for the calendar year 1964. Witness’ attention was called to a profit and loss statement for the calendar year 1964 prepared by Menkhaus, the auditor. This statement was designated as defendant’s Exhibit A. Thereupon, counsel for plaintiff objected to any evidence with regard to any profit and loss statement for the entire year 1964, stating, “ * * * It is only the four month period that is in question here.” Thereafter, a colloquy followed between the court and counsel, wherein counsel for defendant called the court’s attention to the terms of the contract and then said, “ * * * It is set up on a yearly basis. They are not going to take the position here this man is entitled to fifteen per cent for a four month period. He terminated this contract. * * * ” Plaintiff’s counsel then said, “I think we are entitled to fifteen per cent of profits accruing during the time the man worked.” Thereafter, the court sustained the objection of plaintiff’s counsel. Thereupon, counsel for the defendant made an offer of proof to the effect that defendant’s Exhibit A, the profit and loss statement for the calendar year 1964, as prepared by Menkhaus, the auditor, showed the net profits for the year as $2,849.99. The court sustained the objection to the offer of proof. Defendant’s Exhibit A, the profit and loss statement for the calendar year 1964, shows as an expense charged against income an item for officer’s salaries paid to Kurt Koenig of $12,000. At the conclusion of defendant’s case defendant’s counsel again offered defendant’s Exhibit A. The court again denied the offer and admission in evidence of the exhibit.

Plaintiff in his case and during his examination, was asked, “Q. Did you at any time have any conversation with Mr. Koenig about whether or not he was to be paid a salary out of the business before your fifteen per cent was to be deducted? A. He said he was taking nothing out for himself. * * * He said he was taking no salary for himself. All he was taking was rent for the building, paying himself rent.” Plaintiff said he had no knowledge until the morning of the trial that Kurt Koenig was claiming a salary out of the business. Kurt Koenig, in his testimony, did not deny having this understanding with plaintiff.

The court gave the following Instruction No. 3:

“Your verdict will be for the plaintiff on Count I of plaintiff’s petition if you believe :
“1. Mr. Thurman and the defendant realty company entered into the contract identified as plaintiff’s Exhibit I; and
“2. Plaintiff, Mr. Thurman, performed all of his duties as sales manager for defendant from June 1, 1964 until September 30, 1964; and
“3. Plaintiff, Mr. Thurman, was not paid for such services.
* * * * * *
INSTRUCTION NO. 4
“If you find in favor of plaintiff on Count I, you will award plaintiff as damages a sum computed as follows:
“1. You will ascertain the amount of net profit from the operation of K. L. Koenig Realtors, Inc., in accordance with the evidence, from June 1, to September 30, 1964.
“2. If you believe plaintiff and defendant agreed that no salary was to be paid Mr. Koenig before plaintiff’s compensation was computed, you will not make any deduction from profits for Mr. Koenig’s salary.
“3. You will then compute fifteen per cent of the total found by you and render your verdict in that amount on Count I.”

The jury returned a verdict on Count I in favor of the plaintiff in the amount of $2,739. This amount represented exactly fifteen percent of the total of the net profit for the four months period ending September 30, 1964 in the amount of $11,-402.97 as reflected on plaintiff’s Exhibit 4 and the officer’s salary shown on plaintiff’s Exhibit 4 of $6,857.12, totaling $18,-260.09.

Defendant contends the trial court erred in refusing to admit its Exhibit A, which was the profit and loss statement for the calender year 1964 prepared by the auditor. We think defendant’s Exhibit A should have been admitted but not for the reason asserted by defendant. Defendant also contends the trial court erred in giving Instruction No. 4 because of paragraph one, which it contends was the equivalent of directing a verdict in favor of plaintiff’s method of computation. We agree it was error to give the instruction but for a reason other than that assigned by defendant.

It will be noted that during the trial defendant contended the contract was ambiguous, whereas, plaintiff contended it was not ambiguous. The part of the contract in question is paragraph 4. We think the entire contract is free of ambiguity. It clearly and expressly provides that plaintiff’s remuneration was to be computed on the basis “of the net profits of the company in each year,” and not on the basis of any four month period or any other period. The contract was for fifteen percent of the net profit derived from business in the calender year. The calender year profit was to be the basis for the computation and not the profit for any other specific period. Plaintiff, astutely, seeks to use the profit for the four months period as the basis for computation. The contract does not so provide. The obvious intention of the parties in providing for the computation to be based on the net profit “in each year” was to provide not only for the profitable months and periods of the calender year but also for the periods of losses and less profits.

The contract was not terminated by the defendant but was terminated voluntarily by the plaintiff. Under the circumstances and under the contract the computation of plaintiff’s remuneration must be measured by the net profit shown on defendant’s Exhibit A for the calendar year 1964 and because of the termination of plaintiff’s employment before the end of the calendar year 1964 his remuneration should be based on a proportionate share of the 1964 profits. Spelled out this would be fifteen percent of one-third of the profit for the calendar year 1964. We say the profit should be computed on a calendar year basis because paragraph 4 of the agreement provides that the audit shall be made as soon as reasonably possible after the first of each year. This obviously calls for a calendar year audit. We also point to the provision that declares that the net profit as certified to by the auditor shall be conclusive. Likewise we are aware that the court admitted intrinsic evidence relative to the preparation of this contract. None of this testimony tends to vary the terms of the contract as we find them to be and all of said testimony seems to be in harmony with our interpretation.

When the language of a contract is plain there can be no construction because there is nothing to construe. Mickelberry’s Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731. Where there is no ambiguity in the contract the intention of the parties is to be gathered from it and it alone, and it becomes the duty of the court and not the jury to state its clear meaning, Kalen v. Steele, Mo.App., 341 S.W.2d 343. We think the trial court erred in not admitting defendant’s Exhibit A. Further, we think the trial court should have directed a verdict in favor of plaintiff for the amount we hereinafter compute.

It will be noted that in plaintiff’s testimony he contended that he and Mr. Koenig had a supplemental agreement to the written contract that the salary paid Koenig was not to be computed in determining plaintiff’s remuneration under the contract. This agreement was submitted in paragraph 2 of Instruction No. 4 for the jury’s consideration and it is obvious from the jury’s verdict that it found in favor of plaintiff on this issue. We have pointed out heretofore that defendant offered no evidence in opposition to the alleged agreement submitted in paragraph 2 of Instruction No. 4 and also in this court defendant raises no issue or complaint about submission of this agreement to the jury. In the absence of a complaint it is apparent that defendant concedes the existence of the agreement that Koenig’s salary was not to be deducted from the profit for the calandar year 1964 and we shall so treat it as conceded.

In view of the interpretation we place on the written contract and the supplemental oral agreement concerning Koenig’s salary plaintiff should have recovered under Count I, the sum of $742.50 computed as follows: 15% of one-third of the total of the 1964 profits ($2,849.99) and Koenig’s salary for 1964 ($12,000).

COUNT II. Plaintiff obtained from Jack Hoelzer a listing to sell a lot. Apparently Hoelzer had agreed to build a dwelling on said lot for any purchaser. On September 20, 1964, plaintiff obtained a contract signed by Robert H. and Marilyn H. Frazier as purchasers and Hoelzer as seller, whereby Hoelzer agreed to build a dwelling on his lot and to sell the lot and the dwelling to the purchasers, all for the sum of $13,700. As pointed out in Count I, if the selling salesman obtains the listing of the property he is entitled to 55% of the 5% commission collected by defendant company Plaintiff claims $376.75 which is 55% of $685.00 collected by defendant as commission. The jury found in favor of plaintiff for this amount. Defendant’s principal complaint is that plaintiff did not keep the Fraziers informed of the progress of the building. Koenig in his testimony admitted that whenever plaintiff made a sale in which he was the prime salesman he was entitled to a commission for making the sale, and if he got the listing and made the sale he would get 55% of the commission, which he said is over and above the 15% he was to get as sales manager. Koenig in his testimony admitted that after the sale was made the salesman never closes the deal. The closing of all deals is made by Koenig or the Secretary of the company. The Hoelzer commission was collected. The only error assigned by the defendant is in the giving of the Instructions on this count. We have examined these instructions and do not find any prejudicial error. The jury was not misled by them as its verdict indicates.

COUNT III. In connection with this count plaintiff testified that he had an agreement with Koenig that he was to receive one-half of the commission received by the company from the sale of insurance. He said he only received one commission on a policy issued to the Assembly of God’s Church. The auditor testified that there was received by the defendant company for the period in question from insurance commissions the amount of $744.13, which it seems did not include any of the commissions from the church policy. Plaintiff claims he is due one-half of this sum; namely, $372.07, which was the amount of the jury’s verdict. Here again defendant complains about the instructions given in connection with this claim. We have examined the instructions and find no error. Here again Koenig in his testimony did not dispute the existence of such agreement and the amount of the commissions received by the company for the period in question is plainly reflected on the profit and loss statement of the auditor. Defendant contends that the amount of the jury verdict should have been deducted from the net profits in connection with plaintiff’s claim under Count I. The answer to this is that the written contract provides that the auditor’s statement is conclusive. The commission claimed under this Count was not paid out in 1964 and of course has not as yet been paid.

The judgment is reversed and cause remanded with directions to enter a new judgment in favor of plaintiff as of the date of the original judgment in the amount of $1,491.32, which amount represents a recovery under Count I of $742.50; under Count II of $376.75 and under Count III of $372.07.

ANDERSON, P. J., and JOHN C. CASEY, Special Judge, concur.


author: WOLFE, Judge.

text:
    Donna L. ROUTT, Plaintiff-Respondent, v. BI-STATE TRANSIT DEVELOPMENT AGENCY, a corporation, Defendant-Appellant.
    No. 32687.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.
    Gerald D. Morris, St. Louis, for defendant-appellant.
    James F. Koester, St. Louis, David G. Dempsey, Clayton, for plaintiff-respondent.
   WOLFE, Judge.

This is an action for damages arising out of personal injuries which the plaintiff suffered. She was a passenger in a bus operated by the defendant corporation. The defendant’s driver ran the bus into a depressed sewer inlet causing a violent jar. This caused the plaintiff’s head to strike a window of the bus by which she was sitting, and inflicted the injuries for which she seeks recovery in damages. There was a verdict and judgment for the plaintiff in the sum of $15,000 and the defendant prosecutes this appeal.

The occurrence giving rise to this action happened on August 7, 1963. The plaintiff, who was 19 years of age at the time, was on her way home from work. She was a passenger on defendant’s bus and was seated about four seats back from the front. She was in a seat on the right side of the bus and next to the window.

The bus was traveling along Waterford Avenue and approaching Yearling Avenue in St. Louis County. It was in the right lane of the street and about a foot from the curb when it ran into the storm sewer inlet which extended out into the street. The jar occasioned by this threw the plaintiff’s head against the window. The window broke but the glass did not fall out.

The plaintiff was dazed and her vision blurred. She rode on to her destination and she stated that the driver of the bus helped her off. Her brother and her father met her and assisted her to their automobile as she could not walk alone.

The bus driver testifying on behalf of the defendant stated that he did not see the sewer depression. He said that he was not aware that the sewer opening was there and he was looking straight ahead and did not see it. He testified that the opening is made in such a way that you “have to be right on it before you see it.” He also stated he had never before seen a storm sewer like the one there. He said his bus ran into it and made a “real hard jar.” He stopped the bus and checked with the passengers to see if any of them were hurt. He said that everyone, including the plaintiff, told him that they were “O.K.” He noticed the window by the plaintiff was cracked. He also stated that he did not help the plaintiff off the bus.

A passenger called as a witness by the defendant said that she was bounced into the air about a foot when the bus went into the sewer inlet but she did not fall off her seat. The witness stated that she noticed the plaintiff before the occurrence and that the plaintiff was sleeping with her body leaning toward the side of the bus and her head bobbing a little with the movement of the bus. The plaintiff denied that she was sleeping.

Among the points raised by this appeal is a claim by the appellant that the verdict is excessive, but since we have decided that the case must be retried because of an erroneous instruction given we will not reach that point. Therefore it will not be necessary to set forth the evidence in relation to the injury that the plaintiff sustained.

The first point raised is that the court erred in giving plaintiff’s verdict-directing instruction designated as Instruction No. 4, which is as follows:

“Your verdict must be for plaintiff if you believ e:
First, defendant’s bus driver drove the bus into a storm sewer, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence, plaintiff sustained damage.”

It is evident, as the appellant contends, that the instruction presents only one issue to the jury and that is whether the driver drove his bus into the storm sewer. It is contended that this is an erroneous submission, in that the use of MAI Instructions is mandatory where one is suitable for use, but respondent counters by asserting that there is no MAI Instruction upon driving into a storm sewer opening and therefore he chose to submit the case by following MAI 17.01 and 17.13. Instruction 17.01 is a single negligent act submission on the violation of a traffic signal and 17.13 is an optional submission driving on the wrong side of the road. In using either of these instructions as a guide the respondent overlooks the fact that the violation of a traffic signal and driving on the wrong side of the road are respectively a violation of an ordinance in the first place and of a statute in the second place. By reason of this these acts bespeak negligence except in cases where such violations are excusable. See MAI notes under both instructions.

The case was pleaded on the theory of primary negligence and one of the charges pleaded was a failure to keep a careful lookout. It was tried and argued on that theory. The driver was on the right side of the road in a lane where it was legal for him to travel. The evidence of his negligence is that he failed to observe the depression into which the bus ran in time to have avoided running into it. MAI provides in 17.05, an optional submission which states: “Defendant failed to keep a careful lookout.”

Missouri Supreme Court Rule 70.01(b) (c), V.A.M.R., provides:
“(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given, to the exclusion of any other on the same subject.
“(c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.”

For the reasons stated the giving of the instruction violates the rule and it was therefore erroneous. Motsinger v. Queen City Casket Company, Mo., 408 S.W.2d 857. The respondent asserts that even though the instruction is erroneous it was not prejudicial. It is argued that defendant’s driver’s statement that he could not see the sewer inlet was not believable and that the jury could arrive at no other conclusion than that of negligence. Whether his testimony is believable or not is a jury question which they are called upon to decide under proper instructions. To hold the instruction non-prejudicial would merely result in extending the res ipsa loquitur doctrine beyond the scope of its accepted use. The instruction was prejudicial and erroneous.

Other matters occurring throughout the trial about which the appellant asserts error may not occur upon retrial and we will not consider them. There is one exception to this and that is appellant’s contention that the court erred in refusing to give its offered instruction captioned “A”. If we do not dispose of this point the defendant might consider it advisable to again offer it on retrial. It is as follows:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
First, plaintiff was asleep with her head bent forward and her neck limber as she sat in the bus; and
Second, plaintiff’s conduct as submitted in paragraph First was negligent; and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.”

The argument in support of this point, which the appellant first advances, is that the defendant is entitled to submit its defense of contributory negligence where such defense is justified under the evidence. With this we are in full accord. The crux of the matter however rests upon whether the evidence that the plaintiff was asleep, if true, would convict her of contributory negligence. We are cited to Seism v. Alexander, 230 Mo.App. 1175, 93 S.W.2d 36; Matta v. Welcher, Mo.App., 387 S.W.2d 265; and Ketcham v. Thomas, Mo., 283 S.W.2d 642. These cases deal with the duty, under some circmumstances, of a guest in a privately owned automobile to warn of known danger. We are concerned here with a bus passenger on a bus operated by a common carrier. She is seated where she has a right to be and sleeping, if the defendant’s evidence is believed. She had a right to rely upon the carrier to transport her safely. Harding v. Triplett, Mo. App., 235 S.W.2d 112, and cases therein cited. There was therefore no evidence of contributory negligence and the court did not err in refusing to give the instruction.

For the error noted in Instruction No. 4 set out above the case is reversed and remanded for a new trial.

ANDERSON, P. J., and RUDDY, J., concur.