author: MASSEY, Chief Justice.

text:
    Daniel E. GEVINSON et al., Appellants, v. MANHATTAN CONSTRUCTION COMPANY OF OKLAHOMA et al., Appellees.
    No. 16846.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 15, 1967.
    Rehearing Denied Nov. 10, 1967.

      Smith, Cordray & Vickers, Houston, Gottlieb & Schiff, and Charles Gottlieb, New York City, for appellants.
    Vinson, Elkins, Weems & Searls, Houston, Thornton, Stamper & Dalton, and Andrew T. Dalton, Jr., and David M. Thornton, Tulsa, Okl., for appellee.
   OPINION

MASSEY, Chief Justice.

Action and cross-action in the trial court involved title to certain land and improvements thereon. The issue of title was raised by cross-action in trespass to try title.

Action by the plaintiffs Manhattan Construction Company of Oklahoma and Manhattan Construction Company of Texas, for themselves and on behalf of Manhattan-Dalmark (a joint venture, percentage interest in which — as by partners — was agreed upon between said plaintiffs with Dalmark Construction Company, disclosed to have been one of the alter ego entities of defendant Daniel Gevinson) concluded with prayer that Manhattan Construction Company of Oklahoma have declaratory judgment to the effect that it was the true and rightful owner of one defendant sued, to-wit 21 Turtle Creek Square, Ltd. (a limited partnership under provisions of law in this state), together with all the assets of the same whether real, personal or mixed; and that the plaintiffs (apparently collectively and in proportion to the percentage interest of all who were parties beneficiary to the joint venture) were entitled to recover and hold valid statutory, constitutional and equitable liens in the amount of $989,881.72 against all the property of 21 Turtle Creek Square, Ltd.; and in addition to receive decree of foreclosure subject to an undisputed prior lien held by the New York State Teachers’ Retirement System, — with judgment for any deficiency which might be a result through judgment against Daniel Gevinson, as an individual defendant.

We here take occasion to note that a single individual or entity cannot be “owner” of a partnership, though he or it could become the owner of what might have theretofore been property which belonged to such.

We furthermore take occasion to note that in the event another or others become true and rightful owner(s) of what might have theretofore been property which belonged to a partnership it would be a useless gesture for the true and rightful owner(s) to seek to have established liens against such. Of course, it could occur in such a situation that those who succeeded to the title of property formerly belonging to a limited partnership under circumstances, where such property was the whole of the property belonging to such partnership, might additionally be entitled to personal judgment as against one of more who had been general partners. The same might perhaps also be a result as against one or more who had been limited partners under certain circumstances — appertaining to equity — such as because of conduct which would make it proper to hold him or them liable just as though the partnership interest was not “limited”.

Judgment rendered by the trial court decreed: (1) that plaintiffs, by and through David M. Thornton, as trustee, own all the partnership interest in 21 Turtle Creek Square, Ltd., a limited partnership, and title thereto was accordingly decreed with direction for amendment of the certificate of limited partnership appertaining in the office of the Secretary of State; (2) that plaintiffs have and recover of the defendant Daniel Gevinson the stock certificate representing the shares of stock of another of the defendants, 21 Properties, Incorporated, title thereto being decreed as in plaintiffs; (3) that plaintiffs recover jointly and severally from defendants 21 Turtle Creek Square, Ltd. (the limited partnership) and 21 Properties, Incorporated (one of the original general partners of the limited partnership) the sum of $1,104,881.-72, with interest from date of judgment and costs; (4) that plaintiffs have and recover from the defendant Daniel Gevinson, individually and jointly and severally with said other defendants, the sum of $230,-863.00 as the portion of such $1,104,881.72 for which Gevinson is personally responsible and liable; (5) and that plaintiffs have a lien affixed to and against the real and personal properties of 21 Turtle Creek Square, Ltd. (the limited partnership) for the sum of $1,104,881.72, — and that after 30 days and in the event the defendants, or any of them, fail to pay same within such period, a foreclosure and sale as under execution in satisfaction of judgment, subject to the first and prior lien of the New York State Teachers’ Retirement System,— and if the property cannot be found then to receive the money or any balance thereof remaining unpaid out of any other property of the defendants as in the case of ordinary execution.

From such judgment the defendants appealed. The appellants before this court — by name in any event — are: (1) Daniel Gevin-son as an individual (in respect to his liability apart from and by reason of his original partnership interest in 21 Turtle Creek Square, Ltd., and/or in respect to his liability by reason of his existent or formerly existent general partner status and corespondent ownership of title as follows: as the owner of one-half of one per cent general partnership interest in 21 Turtle Creek Square, Ltd. as applied to the property belonging to it, and as the owner of a ninety-nine per cent interest in the same property as a limited partner); (2) 21 Properties, Incorporated, as the owner of one-half of one per cent interest in the partnership as a general partner; and (3) Dalmark Corporation, a corporation shown to be wholly owned by Daniel Gevinson (and also shown to have been his alter ego). Note: Dalmark Corporation was never named as a defendant — indeed plaintiffs’ pleadings named such corporation as a member of the joint venture for the benefit of which their suit was brought, — but said corporation was named as cross-plaintiff as against those originally bringing the suit and against others sued for purposes of the cross-action.

The appellees before this court are: (1) Manhattan Construction Company of Oklahoma; (2) Manhattan Construction Company of Texas; (3) David M. Thornton, individually and/or as trustee for the aforesaid corporations; and (4) C. A. Bullen— who was and is an officer for said corporations. In the cross-action Thornton and Bullen were named cross-defendants along with the Manhattan Companies as applied to the matter of title to the property which is the primary subject matter of the whole litigation. As already stated the cross-action was in form of trespass to try title, in answer to which there was a plea of “not guilty”.

With the question of title settled the remainder of the questions involved would solely relate to the matter of accounting, i. e., who owes what to whom, for what, and how much.

It is obvious that the judgment could have and in our opinion should have been so written as to vest title (as between parties to the litigation) in the cross-defendants in trespass to try title. What the judgment of the trial court did decree was ownership of all the partnership interest in 21 Turtle Creek Square, Ltd. in the two Manhattan Companies, by and through David M. Thornton, as trustee. The record reflects that such partnership interest was ownership of that property. The record also reflects that C. A. Bullen was and is the principal officer and manager of the affairs of the two Manhattan Companies. There would be no good reason — as of this time or as of the time judgment was decreed — why it should be necessary to provide for anything other than to settle the title question between the parties. There is no occasion for foreclosure proceedings and expense and delay attendant thereto where the effect of the judgment could only lead to the same end. That a decree in trespass to try title would also name the cross-defendant C. A. Bullen as one of the owners would in no way prejudice the appellants.

We feel free, therefore, to render judgment in this court in trespass to try title. The appellees who were cross-defendants are so entitled by reason of the facts shown of record that the appellants who were cross-plaintiffs under that form of action failed to prevail by their suit and/or failed to have submitted and obtain favorable answers to special issues determinative of fact questions existent under the evidence. Indeed, they did not request such special issues nor object because of their absence. We do not believe that their right to title was established as a matter of law in view of the circumstances, under which the cross-defendants were shown to have gone into possession of the property, nor in view of the circumstances under which said cross-defendants’ predecessor, Kirkeby-Natus Corporation, was in possession immediately prior to that time.

In order that this opinion will not be unduly lengthened the judgment in trespass to try title will not be herein set forth but will be recited in our judgment as applied to the description of the real property as to which (as between the parties adversary in the litigation) title is decreed in cross-defendants.

We will, however, briefly comment upon material matters having relation to the case as one in trespass to try title. In March of 1964 Kirkeby-Natus Corporation went into possession of the subject property under a disputed right of title and under circumstances in view of which its titular right was never settled. (There was, furthermore, an issue upon the matter of instruments confirming such title as of April 17, 1964.) Resolution of said question, in our opinion, depended upon fact questions which might have been resolved by jury findings. These questions were not settled for they were not submitted to the jury. Any error existent by reason thereof was not preserved for purposes of the appeal. On or about August 26, 1964 an issue was raised as to whether the same title in cross-defendants was derived from Kirkeby-Natus Corporation through transfer upon legal consideration. Circumstances shown in connection therewith created additional questions of fact in connection with cross-defendants’ possessory and titular rights. Said questions therefore became such as to which the burden was cast upon cross-plaintiffs to seek to have issues submitted and answers returned in their favor if they would show themselves entitled to judgment in trespass to try title. They did not discharge this burden. The error, if any existent, was never raised nor preserved.

Appellants, who were cross-plaintiffs, devote much of their argument to the proceedings under which the Kirkeby-Natus Corporation’s title was derived. Their contention is that impropriety was existent because such was pursuant to a private sale in violation of contractual agreement existent and binding upon Kirkeby-Natus relative to notice and the form thereof made a condition of Kirkeby-Natus right to foreclosure and sale. Further contention thereunto appertaining was predicated upon provisions of the Lien Law of the State of New York, in particular Article 9 thereof relative to provisions for rights of a lienor against sales privately held.

Kirkeby-Natus Corporation was not made a party to the instant litigation. The questions raised by appellants would be pertinent only to litigation between themselves- and such corporation. The same questions are immaterial to any present necessary determination.

As applied to the remainder of the judgment, to-wit: who owes what to whom, for what, and how much, we need refer only to the pleadings of the plaintiffs. With this done it is to be noted that Dal-mark Corporation, already noticed to have been the alter ego of defendant Daniel Gev-inson, was named as a beneficial plaintiff in that the other plaintiffs brought suit in its behalf as well as their own. Insofar as the situation is to be observed there appears to be a hiatus in that there was no attempt to secure any accounting as between the plaintiffs other than Dalmark Corporation (nee Gevinson) and that as applied to $230,863.00 of the amount for which judgment was secured by and in behalf of all the named plaintiffs, and the corporation in whose behalf they further sought relief, accounting as between them was neither sought nor provided in the judgment. Since there appears to be no practical manner in which proper severance may be ordered as to said portion of the judgment we perceive no alternative other than to reverse the same as applied thereto with direction of remand for another trial under amended pleadings in orde* that complete relief between the parties may be obtained as contemplated by the spirit of Texas Rules of Civil Procedure, rule 39, “Necessary Joinder of Parties”.

The same is true as applied to funds representing advances made by the Manhattan-Dalmark joint venture to 21 Turtle Creek Square, Ltd., Gevinson Associates Construction Company, and Mardal Construction Company — pursuant to construction and accounting under the various contracts prior to the date on or about August 1, 1964 when, under the theory under which trial was held, there was a change in the title to the property in controversy. No accounting evidence resolved the interest of Dalmark Construction Company (nee Gevinson) and that of the other plaintiffs. Furthermore, it is apparent from the evidence that no attempt was made to segregate the accounting figures applicable to the time before there was contended to have been a change in ownership or title to the property in controversy as applied to amounts not properly attributable to the construction contracts. It is obvious that a portion of said amounts shown in the evidence would not be proper for consideration if the theory of title transfer and time of title transfer under which that portion of the case relating to the count in trespass to try title be given controlling effect. This, as noted hereinabove, has been given such effect.

A sizeable amount for which the judgment also provided in behalf of the Manhattan Construction Company of Oklahoma and the Manhattan Construction Company of Texas because of funds advanced after the November 30, 1964 “final closing” of the permanent loan on the subject property (after there had been a succession to the title of Kirkeby-Natus Corporation) and during the period there was attempted operation of the premises as an apartment house appears to have been improperly granted by the judgment of the lower court. If there was a succession to title, as we have held, the holder thereof would not be entitled to recoupment of any losses attendant to an attempted business operation it was not obliged to undertake in the absence of contract or some compelling equitable relationship which the evidence failed to disclose. Nevertheless, there appears to be no practical manner by which a proper severance may be ordered as to this phase of the case, with the judgment applicable thereto reversed and rendered. Accordingly therefore, the proper order would appear to be one of remand.

Other than as applied to our holdings as set out hereinabove there appears to be no sound reason for further extension of this opinion. All points of error bearing upon matters not discussed have been severally considered and are overuled.

Accordingly, judgment of the trial court is reformed so as to settle the controversy as between the parties as same obtains in trespass to try title. In other words, the judgment of this court shall recite that as between parties litigant title to the property in question, identity and description not being in dispute, is in Manhattan Construction Company of Oklahoma, Manhattan Construction Company of Texas, David M. Thornton (individually and/or as trustee for said companies), and C. A. Bullen.

In all other respects the judgment of the trial court is reversed and the cause remanded for another trial.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Lofflin F. IRWIN, Appellant, v. PRESTRESSED STRUCTURES, INC., et al., Appellees.
    No. 7756.
    Court of Civil Appeals of Texas. Amarillo.
    July 17, 1967.
    Rehearing Denied Sept. 5, 1967.

      Nelson; McCleskey & Harriger, Clarence P. Brazill, Jr., Lubbock, for appellant.
    Evans, Pharr, Trout & Jones, Wm. H. Evans, Lubbock, of counsel, and Jim Kim-mel, Lubbock, for appellees.
   CHAPMAN, Justice.

This is an appeal by Lofflin F. Irwin from an order of the trial court refusing to grant him a temporary injunction against J. B. White and Ralph Cocanougher, individually, and in their capacities as officers and directors of Prestressed Structures, Inc., and against John A. Flygare in his capacity as agent and trustee for an undisclosed purchaser of Prestressed Structures, Inc. common stock.

The shareholders of the corporation at its inception were J. B. White with 7,500 shares and Lofflin Irwin with 7,500 shares. At the organizational meeting of the corporation it was resolved that Ralph Cocan-ougher be given an option to purchase stock, which he exercised subsequent to incorporation by the purchase of 500 shares of the total outstanding stock of 15,500 shares. He also had an option to purchase an additional 7,000 shares of unissued authorized stock. It was also resolved at the organizational meeting of the directors that all stock certificates issued by the corporation be endorsed with a restriction that in the event a shareholder wished to sell his stock, he must first offer it to the corporation at net book value. Accordingly, the stock certificates issued carried on the back the restriction that if the stock represented by ■“this certificate” be offered for sale, it must first be offered in writing by the holder to the corporation at the net book value and the corporation should have sixty days after receipt of such offer to purchase said stock at such net book value, but if it should not be bought by the corporation within such period of time the stock might be sold under any terms and conditions, at the election of the holder.

Personal problems of disagreements arose between Irwin on the one hand and White and Cocanougher on the other. After a number of personal encounters and problems between Irwin and the other two shareholders, White, in his individual capacity as a stockholder and not as a director, agreed with John A. Flygare, agent and trustee of an undisclosed principal, upon arrangement by Cocanougher to sell to Fly-gare, Trustee, the 7,500 shares of stock he owned and further agreed in writing to vote his 7,500 shares to cause the corporation to decline to exercise the corporation’s option to buy the White stock at book value. Such agreement provided only that he would vote his stock. There is not any evidence in the record that he obligated himself in advance to vote as a director, thus placing him in a fiduciary capacity. In any event no damage or fraud is shown on the corporation.

At a stockholders’ meeting duly called for that purpose White ánd Cocanougher, on behalf of the corporation, and with majority stock control, voted their stock to decline to permit the corporation to exercise its option to buy the White stock. Irwin abstained from voting his stock. The same result was reached at a Directors’ Meeting. White subsequently sold his stock to John A. Fly-gare, Trustee, at less than book value and Ralph Cocanougher exercised his option to buy the 7,000 additional shares of unissued but authorized stock, paid the money and received the stock. Following such transactions the corporation’s stock was owned by Cocanougher, Irwin and John A. Flygare, Trustee, in the respective amounts of 7,500 shares, or 1/3 each. Thus, Irwin’s position with respect to stock ownership is the same as it was before the related transactions took place. By voting to have the corporation refuse to exercise its option to buy his stock at book value White received less money than he would have had he voted for the corporation to take funds from the corporate treasury to purchase his stock. He admitted in effect that he would not have sold it to the corporation even if he had to keep it because it would have placed Cocanougher in the position of minority stockholder to Irwin, Cocanougher owning at that time only 500 shares to Irwin’s 7,500 shares.

In his five points of alleged error appellant asserts reversible error of the court in failing to grant the temporary injunction because the undisputed facts show the parties were subject to a valid contract; such contract was breached; the court failed to apply the proper rules of law governing “probable right and probable injury;” the court erred in failing to properly apply the law to the undisputed facts; and, the order of the trial court in denying the temporary injunction constituted an abuse of discretion.

Article 2.22, Section A, Business Corporation Act, Vol. 3A, Vernon’s Texas Civ.St. provides, inter alia: “Any corporation may impose restrictions on the sale or other disposition of its shares and on the transfer thereof, which do not unreasonably restrain or prohibit transferability, if each such restriction is expressly set forth in the articles of incorporation or bylaws of the corporation * * * ” Neither the charter nor by-laws of Prestressed Structures, Inc. contain such restrictions, but they exist only as one of a number of resolutions adopted at a Directors’ Meeting of February 23, 1959. Being statutory, we believe the restriction on the stock sale should be imposed in the manner required by the applicable statute. (Emphasis added).

Appellant contends the Directors resolution signed by White as a director was an “instrument” executed by White and Irwin constituting a valid contract binding appel-lees to its terms, and cites as authority therefor Coleman vs. Kettering, “298 S.W.2d 953” The case of Coleman v. Kettering, 289 S.W.2d 953 (Tex.Civ.App.-Galveston, 1956, no writ) appears to lend more support to appellees’ contention than it does appellant’s claim. There the stockholders in Vend-A-Drink Company, a corporation, after reciting that its purpose was to guard against the introduction as stockholders of strangers and outsiders in the business to be conducted, did in fact sign a contract with the corporation to the effect that any stockholder desiring to sell his stock “ * * * must first offer it to the company and then to the other stockholders, at a price calculated in a manner set forth in the contract, before selling or otherwise disposing of it to nonstockholders,” and further agreed that at the next following or a subsequent meeting of the stockholders to vote their stock in support of a by-law provision subject to the terms of the contract which provided for the restrictions just related. The case, at least by dictum, holds the stockholders could agree in advance on the voting of stock, one of the very matters complained about here in the agreement of White as a stockholder to vote his shares of stock for the corporation to decline to buy such shares.

Assuming, arguendo only, that there was an enforceable restriction on the sale of White’s stock, the corporation waived its option to buy the stock. After such waiver by the majority of the voting stock, White then sold his shares to John A. Flygare, Trustee.

The weight of authority is that stockholders may combine to control the management and business of a corporation and agree in pursuance thereof that they will vote their stock as a unit according as a majority of them may determine, provided no fraud is committed or undue advantage taken of non-member stockholders of the combination. 18 C.J.S. Corporations § 551, p. 1256. Texas follows the majority view; i. e., “It is generally held that agreements or combinations by stockholders to vote their stock so as to control corporate action, are permissible if, without fraud, they seek to accomplish only what they might have accomplished without the agreement. Roberts v. Whitson, 188 S.W.2d 875 [2-4] 877 (Tex.Civ.App.-Dallas, 1945, writ ref’d w.o. m.) Since White with 7,500 shares and ,Co-canougher with 500 shares controlled the majority voting stock and could have accomplished the objective without the prior agreement, there appears to be no fraud in the agreement nor undue advantage taken of Irwin. See also Burnett v. Word, Inc., 412 S.W.2d 792 (Tex.Civ.App.-Waco, 1967) and in the Massachusetts jurisdiction, Kentucky Package Store v. Checani, 331 Mass. 125, 117 N.E.2d 139 (Court of Last Resort, Mass., 1954); Blabon v. Hay, 269 Mass. 601, 169 N.E. 268 (Court of Last Resort, Mass., 1929). The Waco Court of Civil Appeals in Burnett v. Word, Inc., held an agreement of the parties in advance, as directors, to bind themselves as directors is void, but that the contract was valid as to the obligations the parties bound themselves to as stockholders. In so holding the Court, in quoting with approval from a textual statement, said: “ * * * the modern view on the question whether a stockholder’s contract, by which the manner in which he may vote his holdings is controlled, is valid, appears to be that such contracts contain no inherent defect requiring that they be struck down. Under this view, agreements by which a stockholder binds himself to vote in a specified manner * * * have been upheld, as have other agreements, as, for example, agreements binding stockholders to vote their stock in accordance with the will of a majority of the parties to the agreement.”

In Blabon v. Hay, supra, the by-laws of the company provided that no shares of stock should be sold by an owner until he had offered them in writing for sale to the corporation. The court held: “The provisions in the by-laws as to the transfer of shares were inserted for the benefit of the corporation and could be waived by the directors.”

The Supreme Court of Rhode Island in Boss v. Boss, 200 A.2d 231 (1964) has held: “* * * a stockholder * * * ‘has the legal right to vote with a view to his own benefit * * (Citing both textual and case law authorities) * * * Nor can the motive or purpose for which the stock was purchased adversely affect such purpose. * * * The decree of the superior court in effect restrains the majority stockholders from exercising their lawful authority to decide a plain matter of corporate policy concerning which courts lack the authority to interfere.” The court then cited and quoted from the Massachusetts case of Kentucky Package Store v. Checani, supra. (Parenthetical statement ours).

White received less for his stock by selling it to Flygare, trustee, than he would have received had he sold it at book value to the corporation. Therefore, he did not profit at the expense of the corporation nor, as for that matter, at the material expense of Irwin.

“The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits. * * * A trial judge therefore has broad discretion to grant or to deny a writ when the pleadings and the evidence show a probable right to recover of the applicant and a probable injury to him if the writ is not granted.” Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517. It necessarily follows, then, “* * * that a trial judge abuses his discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery.”

“The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery.” Camp v. Shannon (supra). Believing he did not do so, we hold the trial court did not abuse its discretion in refusing the extraordinary relief of a temporary injunction.

The judgment of the trial court is affirmed.


author: BARRON, Justice.

text:
    Edward ROBERSON et al., Appellants, v. Elsie H. ROBERSON, Appellee.
    No. 13.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 25, 1967.
    Rehearing Denied Nov. 15, 1967.

      Croom, Barnes & Adams, Jack W. Knight, John A. Croom, and Sam G. Croom, Houston, for appellants.
    Ladin, Lackshin, Weycer & Schultz, and James G. Cowen, Houston, for appellee.
   BARRON, Justice.

This is an action for divorce, child custody, support, division of community property and attorney’s fees, filed in the Court of Domestic Relations No. 3 of Harris County, Texas. The plaintiff is Elsie H. Roberson, the lawful wife of defendant, Edward Roberson, a medical doctor. The suit was filed on April 1, 1964. The plaintiff alleged cruel treatment and adultery as her original grounds for divorce, but later a trial amendment was permitted which set forth grounds of seven years’ living apart, without cohabitation, upon which ground the divorce was granted to plaintiff on March 15, 1967. Subsequently, after many conferences and the taking of a great amount of testimony, Marinelle Pullen (called Mari-nelle Pullen Roberson), filed her plea in intervention, in which she alleged that in good faith and without knowledge of legal impediment, she lived with Edward Roberson as his wife until July 7, 1964, during which time Dr. -Roberson acquired properties for which she makes claim as an alleged putative wife. On motion,-the trial court entered its order striking said plea of intervention on August 1, 1966. Marinelle Pul-len excepted and eventually gave timely notice of appeal. She and Dr. Roberson are appellants in this cause.

The complicated nature of this case and the involved facts concerning the community property of the parties, caused the trial court to appoint Albert R. Young master in chancery with power to hold conferences between the parties and their attorneys, to receive and report evidence concerning the respective claims of the parties, to hear testimony concerning the issues in the case, to make recommendations and to file proposed findings of fact and conclusions of. law for the trial court’s determination. From the date of his appointment on October 13, 1965, the master complied with the court’s orders, held six or more extended conferences, heard sworn testimony by various persons including the parties, and heard the arguments and suggestions of counsel concerning the issues. On September 20, 1966, he' filed in the trial court his review of the evidence and his proposed findings of fact and conclusions of law. Both parties timely excepted to the master’s report. The testimony taken was voluminous and the arguments and statements are lengthy. It was agreed by all parties that the transcribed testimony and arguments of counsel, together with the depositions of the parties, approved by the trial court, should constitute the statement of facts. While much of the testimony was incompetent and improper, on orders of the trial court, we accept it as the statement of facts.

The following facts are pertinent:

Elsie H. Roberson and Dr. Edward Roberson were married in the State of Arkansas in 1947, and continued to live together as husband and wife until about December 1, 1959. After that date they never lived together as husband and wife again. They had two daughters, one of whom is under the age of 18 years. On February 15, 1960, Dr. Roberson filed suit for divorce against Mrs. Roberson in the Court of Domestic Relations No. 3 of Harris County, and on June 26, 1961, judgment was entered by the trial court denying a divorce to Dr. Roberson. During the month of September, 1961, Dr. Roberson commenced living with Mari-nelle Pullen in Baytown, Texas, representing her to be his lawful wife. He continued to live with Marinelle at least until the time of trial.

Less than three months after Dr. Roberson had been denied a divorce from Elsie Roberson, without the knowledge of Mrs. Roberson, he went to Juarez, Mexico and obtained a Mexican divorce from her. He married Marinelle Pullen at Richmond, Texas on September 27, 1961. When Mrs. Roberson learned of this purported marriage, she filed suit against Dr. Roberson in Harris County for declaratory judgment to establish that the marriage to Marinelle was invalid and void, and the trial court entered judgment on December 23, 1963, declaring that the Mexican divorce was void; that Marinelle’s marriage was void and of no' effect, and that Elsie was the lawful wife of Dr. Roberson. The judgment was affirmed by the First Court of Civil Appeals by unpublished opinion.

During the marriage of Dr. Roberson and Elsie Roberson a great deal of community property was acquired. Dr. Roberson has apparently been successful in both ■ his profession and in various business ventures, He has acquired two furnished houses in Harris County, two automobiles, bank stock, 50 shares of San-Aero Corporation common stock, a substantial income from his medical practice, 125 shares' of stock in Tidelands Hospital Company, 38% general partnership interest in Tidelands Properties Company (a limited partnership), varying amounts of cash and various other properties. The exact value of the properties involved is undetermined, but they have been estimated at approximately $300,000.00 with substantial annual incomes.

There seems to be no dispute concerning the trial court’s granting of the divorce. Suffice it to say that we find the evidence full and satisfactory to warrant a divorce in favor of appellee, Elsie Roberson, and the evidence is entirely sufficient to support the trial court’s action in granting it. There was no genuine contest of the divorce phase of the judgment. There is no dispute as to child custody and support. The court awarded Mrs. Elsie Roberson a judgment in the sum of $95,725.70, representing her community interest in the following: 50 shares of San-Aero stock, professional accounts of Dr. Roberson, 125 shares of Tidelands Hospital Company stock, 38% partnership interest in Tidelands Properties Company and her interest in $5,000.00 cash in the bank. Appellee was awarded $10,000.00 as a reimbursement for gifts made in fraud of her community interest, a family residence and furniture, one of the automobiles and 13 shares of bank stock. A lien was established in her favor to secure payment of the judgment. She was also awarded attorney’s fees. The property representing the money judgment above was awarded to Dr. Roberson. Both parties were charged with the payment of community liabilities in the sum of $12,272.85.

Appellants first attack the order of the trial court in striking the plea of intervention of Marinelle Pullen. Marinelle makes claim to a portion of the property acquired by Dr. Roberson while she was claiming to be his putative wife. See 1 Speer’s Marital Rights in Texas (4th Ed.), Sec. 56, p. 62. While the striking of a plea in intervention is ordinarily a discretionary matter with the trial court, there are limits to this rule. See Inter-Continental Corp. v. Moody, 411 S.W.2d 578 (Tex.Civ.App.), writ ref., n.r.e.; McAdow Motor Co. v. Luckett, 131 S.W.2d 267 (Tex.Civ.App.), no writ; Gullo v. City of West University Place, 214 S.W.2d 851 (Tex.Civ.App.), writ dism’d, w.o.j.; 1 McDonald, Texas Civil Practice, Sec. 3.47. However, in the case, an alleged putative wife seeks to intervene in a suit between husband and wife for divorce where a division of an abundance of community property is required. The burdens on the court were already heavy before the attempted intervention. The master in chancery had held hearings on several occasions attempting to determine values and the extent of community property before the filing of the intervention. Suit for divorce was filed on April 1, 1964 and the master was appointed on October 13, 1965. After extensive and complicated hearings the master filed his report on September 20, 1966. Depositions were taken and the master held at least five hearings before the plea of intervention was filed on May 25, 1966, more than two years after the suit was filed. Moreover, the issues required to determine the lack of knowledge and innocence of the intervenor and the putative nature of the alleged marriage were entirely distinct transactions involving issues materially different from those already before the court. Mari-nelle Pullen could have and now can, in a separate suit against one or both parties to this action, protect the interest, if any, she might have in the property involved. Had the trial court allowed such intervenion, this suit for divorce between husband and wife and division of community property probably would have been confused and clouded by a new and complicated set of issues. We believe that interminable trouble, confusion and delay would have resulted by the intervention. The trial court was well within his discretion and was correct in striking the intervention under all the circumstances. O’Brien v. First State Bank & Trust Co. of Taylor, 239 S.W. 715 (Tex.Civ.App.), no writ; Jones v. English, 235 S.W.2d 238 (Tex.Civ.App.), writ dism’d.; 44 Tex.Jur.2d, pp. 195, 196, Sec. 44; Rules 40 and 60, Texas Rules of Civil Procedure. We hold that intervenor is not a necessary and indispensable party to this action. See 1 McDonald, Texas Civil Practice, Sec. 3.16. Broad discretion is accorded the trial judge in the matter of intervention.

Moreover, the apparently tenuous position of intervenor as being an innocent putative wife of Dr. Roberson, and her consequent claim to a part of the property as against the rights of Mrs. Elsie Roberson, adds force to the decision of the trial court in striking the intervention. We overrule appellants’ points of error.

Appellants, by proper points of error, contend that the court’s awarding appellee the sum of $28,508.10, being one-half the net value of 125 shares of Tidelands Hospital Company stock owned by the parties hereto, was error. In addition to the claim that such sum of money was arbitrary and unsupported by the evidence, appellants claim that the stock should have been divided in kind. Appellants contend that a money judgment in favor of appellee for one-half the value was improper. The record shows that 125 shares of stock constitute 28% of the total issue of Tidelands Hospital Company. The preferred stock and the common stock have a par value of $10.00 per share. The value of the corporation as of December 31, 1965 was shown to be $461,000.00, less the amount of liabilities in the amount of $272,000.00, leaving a net value of $189,000.00. The trial court adopted a formula, based upon valid inferences from the testimony before the master and the documentary evidence offered, which showed an increased net value of the corporation of the seven months of 1966 of $3,-583.00 per month, based upon the earnings of the corporation for the year 1965 ($42,996.00), or a total for the first five months of the year 1966, of $17,915.00. There was applied to appellant’s interest therein 28% of the latter figure as an increase. The total value of the 125 shares of stock was placed at $57,016.20, representing the reasonable value of the stock belonging to the community estate of the parties. The master, however, in his “conclusions of law” recommend that the stock be divided in kind, one-half to each party. Appellee contended that she be awarded judgment for one-half the value.

The testimony shows that only two shares of the stock had ever been sold, and that no offer to purchase the stock or the hospital property had ever been made. The evidence further shows that the Hospital Company increased in value and in earnings during 1964 and 1965 and prior thereto for three years preceding the trial. It was further shown that the corporation was a good income-producing business. The testimony of Dr. McAmis, a stockholder and partner, shows that the value had increased from January, 1964, through the date of the taking of his deposition on October 20, 1965.

In view of the evidence, and the absence of evidence to the contrary, we hold that the formula resorted to was reasonable under the circumstances, and that the values set were authorized as reasonable inferences from all of the testimony adduced. The use of the income figure for the year ending December 31, 1965 was the only evidence available so far as we can determine. Appellant placed the net value of the assets of the Hospital Company at $127,500.00 on June 29, 1965. The court was not required to adopt the master’s recommendations in this regard. Appellant, having the report of the master, his findings of fact and conclusions of law before him, from September 20, 1966, to the date of the trial on the 23rd day of January, 1967, offered nothing else at the trial to dispute the value as found by the court. Considering the evidence as a whole, the conflicts in the testimony, and the income obviously earned by the corporation, we hold that the trial court was fully justified in finding the values as above set forth, and in awarding the appellee the sum of $28,508.10 as her community share of Tidelands Hospital Company. The court was justified in not dividing the shares in kind. To place appellee in the position of a stockholder with Dr. Roberson and his associates would have been unreasonable. There was ample evidence to indicate that Tidelands Hospital Company and Tidelands Property Company were tax devices set up at the origination of the Tidelands Hospital project to take maximum tax advantage of depreciation and early operating losses, and through which appellant practiced his profession. We approve the trial court’s decision in this regard. There was no abuse of discretion. Roye v. Roye, 404 S.W.2d 92, 95 (Tex.Civ.App.), no writ; Hursey v. Hursey, 165 S.W.2d 761 (Tex.Civ.App.), writ dism’d.

Appellant complains of the trial court’s awarding appellee a money judgment for $2,500.00 representing one-half of the cash in banks. The testimony shows that the appellant had varying sums in the bank from time to time after the divorce was filed. The testimony shows large amounts of cash passing through appellant’s hands during the pendency of this suit, though he was restrained by the court from disposing of and appropriating any of the community property, or from contracting any debt on account thereof. The evidence showed that at times appellant’s account was far greater than $5,000.00 and at other times was far less. On the same authority as above, we hold that the granting of judgment for $2,500.00 was not an abuse of discretion.

At the time of the separation of the parties, appellee, Mrs. Roberson, withdrew $11,000.00 belonging to Dr. Roberson and herself from the Channelview State Bank. This occurred in December, 1959. Disposition of the $11,000.00 took place over a seven-year period and included the costs of her defense of the first divorce action and an action for declaratory relief to invalidate the Mexican divorce and Dr. Roberson’s marriage to his alleged second wife. Appellee had no control over any of the income-producing community property of the parties, and had no income to herself of any nature during that period, though appellant made child support payments. The master disallowed appellant’s claim for reimbursement and the trial court adopted his findings. We think there is sufficient evidence to justify such action. Berdoll v. Berdoll, 398 S.W.2d 397 (Tex.Civ.App.) no writ. The evidence supports the refusal of the court to divide these funds. The trial court’s judgment implies all necessary fact findings to support the judgment. There was no request by appellants for findings of fact and conclusions of law by the trial court. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

The appellants complain of the trial court’s action in rendering judgment in favor of appellee for $10,000.00 for fraudulent gifts made out of the community property to the alleged putative wife, Marinelle Pullen. Appellants lived together as husband and wife from September, 1961 until the date of trial, and in spite of a solemn judgment of the court declaring the marriage to be illegal and the Mexican divorce upon which appellants relied to be void, as well as inferences from the testimony that both parties knew, or should have known, of Dr. Roberson’s valid marriage to Elsie Roberson, they have continued to live together as man and wife. Under the circumstances, the Mexican divorce can offer Dr. Roberson and Marinelle no solace. The property given to Marinelle consists of support for her and her children since at least 1961; numerous vacations and trips which she and her children took with appellant at his expense; a diamond ring costing about $800.00; for spending an undetermined amount of money monthly for Marinelle, for gasoline credit, clothing and numerous other items. This continued for a period of more than five years. The master in chancery allowed ap-pellee this recovery and the trial court adopted his findings. The findings are fully supported by the evidence. These expenditures were in cold disregard of the rights of Elsie Roberson in the community estate. This course of conduct and dealing was a clear and unequivocal fraud upon the lawful wife. See 1 Speer’s Marital Rights in Texas (4th Ed. 1961), Secs. 184, 185, 186; 18 Tex.Law Rev. 131 (1940); Hartman v. Crain, 398 S.W.2d 387 (Tex.Civ.App.), no writ; Kemp v. Metropolitan Life Ins. Co., 205 F.2d 857 (5th Cir.); Aaron v. Aaron, 173 S.W.2d 310, 314 (Tex.Civ.App.), writ ref., w.o.m. We hold that the gifts made by Dr. Roberson to Marinelle were knowingly excessive and capricious, and that the trial court was clearly justified in awarding ap-pellee $10,000.00 for fraudulent gifts made out of the community property of appellant and appellee. In Watson v. Harris, 61 Tex.Civ.App. 263, 130 S.W. 237, no writ, it was said:

“It is so repugnant to our sense of justice that this court will never sanction the proposition that a husband may desert his lawful wife, and while living in adultery with another woman, donate to the latter as a gift his wife’s interest in the property owned by them in common, unless the Legislature enacts a law which will admit of no other construction.”

We agree with that decision and find it applicable here.

In their third point of error, appellants complain that the trial court, before final entry of judgment, fixed the fee of Albert R. Young, master in chancery appointed in this case, at $6,000.00. It is suggested in the briefs and arguments before this court that Albert R. Young died on February 22, 1967, before entry of final judgment. Appellants contend that sworn testimony was required in open court, with the usual right of cross-examination, on the amount of the fee fixed by the trial court. We overrule this contention. Rule 171, T.R.C.P. provides that, “The court shall award reasonable compensation to such master to be taxed as costs of suit.” The awarding or refusal of a master’s fee is within the sound discretion of the trial court and not reviewable absent an abuse of the trial court’s discretion clearly apparent from the record. Miller v. Cercy, 386 S.W.2d 627 (Tex.Civ.App.), writ ref., n.r.e. The master held numerous hearings in this case, examined many witnesses, held conferences with the attorneys and various expert witnesses, all of which is apparent from the record. By agreement of the parties this record constitutes the major portion of the statement of facts. At least 619 pages of transcribed testimony was taken before the master, most of it difficult and highly involved. The master had frequent informal conferences with the attorneys, and the record shows many involved and complex matters considered and passed upon by the master. There are many exhibits in the record. The record shows that the master’s duties were discharged with fairness, patience and diligence. The trial court had a right to consider all of these fact included in the record. The master’s untimely death prevented any further testimony in the absence of objection and tender of testimony by appellants prior to the entry of final judgment on March IS, 1967. Appellants failed to offer such testimony. The fee is reasonable considering all the circumstances.

The same can be said for the trial court’s award of $17,500.00 as attorney’s fees to appellee, Mrs. Roberson. This case was difficult and complex. A great amount of work was required by the attorneys for appellee to reveal the facts which the record supports. The record shows that at least 964 hours were required in the preparation and trial of this case over approximately a three-year period. Research, negotiations, hearings and temporary orders, all necessary for the protection of appellee’s rights, were required.

While a wife does not have an absolute right to attorney’s fees in a divorce case, it is well settled that the allowance of same, and the amount thereof, are within the sound discretion of the trial court. The fee, considering the amount of property involved and the difficulties of this case, is within the limits of reason. The trial court did not abuse its discretion in fixing such fee. Muran v. Muran, 210 S.W.2d 617 (Tex.Civ.App.), no writ; Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002; 20 Tex.jur. 2d, p. 621 et seq., Sec. 298.

In affirming a division of the community estate between husband and wife, we have been mindful of the rule in Texas as expressed in the cases of Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313, and Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, all by our Supreme Court, and we have considered other similar cases. These cases recognize that the trial court is vested with broad discretion in disposing of any and all property of the parties, separate or community, and that its action, in the exercise of such discretion, should be reversed on appeal only where an abuse of discretion is shown, in that the disposition made of some property is manifestly unjust and unfair. An equal division of the property is not required. The loss of an advantageous marriage may warrant the trial court’s division of the property in favor of the wife or of the husband. Fault in breaking up the marriage can be taken into consideration to some extent. It is proper in dividing the property to take into consideration the benefits that the innocent spouse would have received from a continuation of the marriage. We hold that the able trial court was well within its discretion, and acted reasonably, in dividing the community property of the parties as it did. See Pickitt v. Pickitt, 401 S.W.2d 846 (Tex.Civ.App.), no writ; Hudson v. Hudson, 308 S.W.2d 140 (Tex.Civ.App.), no writ.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    E. A. PAYNE, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 7730.
    Court of Civil Appeals of Texas. Amarillo.
    June 26, 1967.
    Rehearing Denied Sept. 11, 1967.
    Cox & Hurt, Joe L. Cox, Plainview, for appellant.
    Simpson, Adkins, Fullingim & Hankins, Jim F. Fullingim, Amarillo, for appellee.
   NORTHCUTT, Justice.

General Motors Acceptance Corporation, as plaintiff, brought suit against E. A. Payne, as defendant, to collect the balance due under the terms of a conditional sales contract. Plaintiff alleged that on or about August 24, 1965, defendant executed and delivered to A. C. Benson Chevrolet Company, Inc. a conditional sales contract in the principal sum of $4,360.32, payable in thirty-six monthly installments of $121.12 beginning October 10, 1965, at the office of General Motors Acceptance Corporation in Amarillo, Potter County, Texas. Said conditional sales contract contained the provision that if default should be made in any payment, when due, then the seller should have the right at its election to declare the unpaid balance due and payable and further for attorney’s fees. Plaintiff further alleged that on August 24,1965, before the maturity date of the first installment of said contract, A. C. Benson Chevrolet Company, Inc. assigned the conditional sales contract to General Motors Acceptance Corporation for a valuable consideration and that General Motors Acceptance Corporation was the owner and holder of the same. Plaintiff also pleaded defendant’s default, sale of collateral, balance due and all necessary matters to authorize the plaintiff to recover. The defendant answered contending he did not owe plaintiff any amount as the property covered by the conditional sales contract was or should have been, by use of reasonable diligence on the part of the plaintiff, of a reasonable cash value of more than the amount due under such conditional sales contract.

The case was set down for trial before the court at 9:00 o’clock a. m. on September 6, 1966, and all parties notified. The defendant did not arrive for trial at 9:00 o’clock and a default judgment was entered. However, defendant did appear just before 10:00 o’clock a. m. on the day of trial. On September 12, 1966, the defendant filed his motion asking the judgment be set aside and that he be granted a new trial. Such motion was overruled and from that order the defendant perfected this appeal.

In defendant’s motion for new trial he contended he had a meritorious defense to plaintiff’s cause of action because the security of the conditional sales contract was or should have been worth the balance of the purchase price owed at the time the same was repossessed. There are no pleadings or proof of any misconduct on the part of the plaintiff in selling the security. The fact that the property was or might have been worth more than the balance due, taken alone, is not sufficient to set aside the sale and the plaintiff was not required to see that the property brought the amount still unpaid. Davenport v. San Antonio Machine & Supply Co., 59 S.W.2d 207 (Tex.Civ.App.-San Antonio, 1933, writ ref’d); Bowden v. Partners’ Finance, 278 S.W.2d 866 (Tex.Civ.App.-Amarillo, 1955, no writ).

It is not a question here as to whether some other judge might have granted a new trial under the same circumstances but did the court here abuse his discretion in overruling the motion for new trial? We do not believe the defendant pleaded facts showing a meritorious defense by merely pleading in his motion for a new trial that the property was or should have been worth the balance of the purchase price owed. The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff and must be supported by affidavits or evidence proving prima facie that the defendant has such meritorious defense. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), and the cases there cited.

Judgment of the trial court is affirmed.


author: HOUSER, Commissioner.

text:
    Galen MURPHY, a Minor, by His Next Friend, Cleda Murphy, and Harold Murphy and Cleda Murphy, Respondents, v. Donald L. LAND, Appellant.
    No. 52527.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.

      William A. Moon, Springfield, for respondents.
    Allen, Woolsey & Fisher, Harold J. Fisher and Raymond E. Whiteaker, Springfield, for defendant-appellant.
   HOUSER, Commissioner.

This is an action for damages. In Count I S-year-old Galen Murphy sued pro ami for $25,000 damages for personal injuries sustained when he was struck by an automobile owned and operated by defendant Donald L. Land, while Galen was riding oa a skateboard. In Count II Galen’s parents sued for $1,300 damages for medical expenses incurred. A trial jury returned a verdict for defendant, which was set aside by an order granting a new trial on the ground that the court erred in giving Instruction No. 5. In its order the court declared that No. 5 was prejudicial in view of the giving of Instruction No. 4 at defendant’s request.

Defendant has appealed, claiming first that there was no error in giving No. 5 and that if there was error it was harmless. Counts I and II were submitted to the jury in separate instructions, each of which submitted negligent failure to slacken speed or swerve under the humanitarian doctrine. At defendant’s request the court gave two instructions, which follow:

“INSTRUCTION NO. 4
“Your verdict must be for defendant, Donald L. Land, unless you believe:
“First, defendant, Donald L. Land, knew or by using the highest degree of care could have known of plaintiff’s position of immediate danger, and
“Second, at the moment when defendant, Donald L. Land, first knew, or by the highest degree of care could have known, of plaintiff’s position of immediate danger, defendant, Donald L. Land, then had enough time by using such care to have avoided injury to plaintiff by either slackening his speed or swerving, and
“Third, defendant, Donald L. Land, had the means available to him to have avoided injury to plaintiff by either slackening his speed or swerving, and
“Fourth, defendant, Donald L. Land, by using the highest degree of care could have avoided injury to plaintiff by either slackening his speed or swerving without endangering himself or others, and
“Fifth, plaintiff sustained damage as a direct result of defendant’s, Donald L. Land’s, conduct.”
“INSTRUCTION NO. 5
“Your verdict must be for defendant, Donald L. Land, unless you believe that defendant, Donald L. Land, was negligent.”

Both of these are converse instructions. Number 4 is MAI No. 29.06(6). Number S is an adaptation of MAI No. 29.04(1). Number 4 converses No. 2, given by the court at plaintiff’s request (submitting humanitarian failure to slacken speed or swerve). Number 5 converses all negligence generally. Number 5 violates the spirit of MAI No. 29.01, which states that a defendant is entitled to a converse of plaintiff’s verdict directing instruction, and violates the positive direction of MAI that a defendant may give only one converse for each verdict directing instruction, found on pages 249, 251 and 253 of MAI. This constituted error. Nugent v. Hamilton & Son, Inc., Mo.Sup., 417 S.W.2d 939.

Appellant seeks to avoid this ruling by contending that under MAI No. 29.04, p. 253 defendant was entitled to give two converse instructions because plaintiff gave two separate verdict directing instructions. Both of plaintiff’s verdict directing instructions contained identical language submitting the same assignments of humanitarian negligence. They differed in language only in that No. 2 submitted the boy’s case, while No. 3 submitted the parents’ case. The quoted MAI provision authorizing multiple converse instructions refers and applies only to the conversing of submissions of multiple theories of recovery. It has no application to this situation, in which the court submitted the same theory of recovery in behalf of different parties plaintiff.

Appellant cites Morris v. Klein, Mo.App., 400 S.W.2d 461, in support of his contention that any error in the giving of No. 5 was harmless because it merely placed a greater burden on the defendant than he needed to have assumed. That case is not instructive, for the reason that multiple converse instructions were not given in that case.

It is our duty to determine judicially the prejudicial effect of No. 5. Civil Rule 70.01(c),' V.A.M.R. All deviations from the straight and narrow path prescribed in MAI will be presumed prejudi-cially erroneous unless it is made perfectly clear that no prejudice has resulted. The requirements of MAI are mandatory. The burden of establishing nonprejudice is on the proponent of the instruction. That it is the policy of this Court to require strict compliance with all of the requirements of MAI is made clear in Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255, a decision by the Court en Banc handed down concurrently herewith. Appellant has not established that no prejudice resulted from the giving of two converse instructions. We hold that this violation of MAI constituted prejudicial error.

Appellant contends that any error in the giving of instructions was harmless for the reason that in any event plaintiffs did not make a submissible humanitarian case in that they failed to prove that defendant had the means and appliances at hand to avoid the collision after the boy entered a position of immediate danger. This requires the statement of the facts in the light most favorable to the plaintiffs.

At about 11:15 o’clock on a bright, sunny September morning defendant was driving his automobile at a speed of 20-30 m. p. h., proceeding north on a 27-foot blacktop street, with the right side of the automobile about 6 feet from the east edge of the pavement, in a “thickly housed” neighborhood just outside the city limits of Springfield. Along there the street was straight and fairly level with just a slight pitch to the south. The pavement was dry. On the east side of the street there lived a family named Davis. The Davis property was enclosed by a chain link fence 4 feet high. The fence ran parallel to the street in the front of the lot for a distance of 90 feet. It was located about 2 feet east of the east edge of the 1½ foot concrete apron (gutter) abutting the east edge of the pavement. There was an opening toward the north end of the fence into the Davis concrete driveway. The driveway was 10 feet wide. The opening in the fence could be closed by double swing gates but the gates were open at the time in question. The driveway, 47 feet long, extended from the east edge of the street to the Davis garage. The driveway sloped up gradually from street to garage. A motorist driving north could see into the Davis driveway and could see children in the driveway as far south as 125-150 feet; could see “practically all” of the driveway, “a good two thirds or better of the way back up the driveway.” Defendant had lived in the neighborhood for 6 or 7 years. He knew that there were “a good many children in that particular area” and was aware that “they played there adjacent and along the street.”

At the time in question Galen and other children were playing in the drive. Galen coasted down the Davis driveway on a skateboard and came out into the street at right angles to “the automobile. Galen started his ride at the garage, 47 feet from the street. A skateboard is a piece of board to which skate wheels are attached. As he rode down the driveway Galen was seated on the skateboard, with his knees in front of his body, his hands holding onto the sides of the board. There is no evidence as to his speed at any time, except that he came out of the drive “at a pretty good gait.” When defendant first saw the boy the automobile was about 40 feet south of the point of impact. The boy was sitting, on the skateboard, coming out of the Davis driveway into the path of the automobile. The boy was at that time still on the extreme lower (west) edge of the driveway. He was “just coming out of the opening” — out of the gate. The actual braking distance of the car at 20 m. p. h. was 18 feet; at 25 m. p. h., 28 feet; at 30 m. p. h., 40 feet. Defendant immediately applied the brakes as soon as he saw the boy. All four wheels left tire skid marks on the pavement, variously estimated at from 24 to 45 feet in length. The skid marks were straight. The right-hand skid marks were 5-6 feet west of the east curbing. There were no automobiles, pedestrians or other obstructions to interfere with or prevent defendant from swerving to his right or left. Defendant made no effort to swerve and did not swerve to the right or left to go around the boy. This he admitted at the hospital, where defendant told the parents that after thinking about it at home he wondered why he didn’t swerve to miss’ Galen; that he had not tried to miss him; that he had just “put on his brakes and went straight.” The right front of the automobile struck the child after the child had proceeded a distance of 6 to 7 feet into the street. The front of the automobile stopped at a point adjacent to the center of the Davis driveway and about 6 feet from the curb. After the accident the boy was lying on the pavement 5 or 6 feet west of the east curb, “right in front” of the right front wheel of the automobile, 3 or 4 feet in front of the car, to the right side of it. The first time the boy saw the automobile the boy was “about on the right hand side out in the street” and the automobile was about 45 feet south of the center of the Davis driveway. He screamed; the brakes started squealing; he tried to turn the skateboard over so that he would fall off, and as he was making this effort the car hit him.

We are of the opinion that plaintiffs made a submissible humanitarian case of failure to slacken speed or s .verve, considering the evidence in the light most favorable to plaintiffs. Defendant’s duty to act arose when Galen came into a position of immediate danger. He came into a position of immediate danger when defendant saw, or by the exercise of the highest degree of care could have seen, Galen moving toward the path of the automobile, apparently intending to continue into its path and apparently oblivious of its approach. Triller v. Hellwege, Mo.Sup., 374 S.W.2d 104; Williams v. Ricklemann, Mo.Sup., 292 S.W.2d 276; Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935. “It is good law that a person driving an automobile along a city street must take note not only of persons who are actually in the pathway of danger, but of those who are approaching and apparently about to go into danger, and to act on such appearances.” Oliver v. Morgan, Mo.Sup., 73 S.W.2d 993, 996 [6], It was defendant’s duty to keep a vigilant lookout both ahead and laterally. Williams v. Ricklemann, supra, 292 S.W.2d, 1. c. 281 [6]; Wright v. Osborn, supra, 201 S.W.2d, 1. c. 938. Defendant did not see Galen until he was about to enter the street, on the extreme lower edge of the driveway, but that did not necessarily mark the point when defendant’s duty commenced. As indicated, his duty began at that point on Galen’s trip down the driveway when by the exercise of the highest degree of care defendant could have seen the boy moving toward the path of his automobile, apparently intent on pursuing his course, and apparently oblivious of the automobile’s approach. Wright v. Osborn, supra, 201 S.W.2d, l. c. 938.

Visibility up the driveway was a hotly contested issue of fact. Defendant’s witnesses and photograph evidenced a complete obstruction of view. In determining the question of submissibility, however, we must ignore defendant’s evidence and accept the testimony of Galen’s parents on this issue. The latter testified that a northbound motorist could have seen the driveway and children up in the driveway at least two thirds of the way from the west end of the driveway to the garage, for as far south as 125-150 feet. On this testimony the jury could have found that defendant could have seen Galen on the skateboard, and that he came into a position of immediate danger, when he was halfway down the driveway; that it was reasonably apparent that he intended to continue in his course down the driveway and into the street; that he would not turn to one side (skateboards have no guiding mechanism) and that in all reasonable likelihood the forward movement of the skateboard would not be interrupted until it had run its course. The jury could have found obliviousness, which widens and extends the zone of danger. Triller v. Hellwege, supra. While we do not know Galen’s speed or how long it took him to traverse the 30 feet between a point halfway up the driveway and the point of impact, the record supports the conclusion that if defendant had seen Galen halfway up the driveway, or at any point closer to the street which would have afforded defendant an opportunity to see him one second earlier than he did, and had defendant then acted promptly, he would have had the means at his disposal to avoid the collision.

The median speed testified to was 25 m. p. h. Taking the braking distance at that speed (28 feet) and adding the distance an automobile travels at that speed during ¾ second reaction time, (28 feet plus) yields a stopping distance at median speed of 56 feet plus. On this type of calculation defendant’s stopping distance at 20 m. p. h. was 52 feet; at 30 m. p. h., about 79 feet. If as defendant testified he was 40 feet south when he first saw Galen, his automobile one second earlier would have been 69 feet, 76 feet or 88 feet south when he first could have seen the boy, depending on which of the three speeds was correct. All of these distances are within the 125-150 foot estimate of the distance from which northbound motorists could see children on the driveway. Under any speed testified to, therefore, defendant had ample time and distance within which to stop short of collision, if he had seen the boy one second earlier than he did see him. This conclusion is based upon the assumption that it would take Galen one second or more to traverse the distance from the middle to the lower edge of the driveway (approximately 23 feet), but of this fact we take judicial notice, considering the gradient, as revealed by the photographs and testified to by a witness (i. e., that it was a gradual slope). With the ability to stop in the distance available, it is evident that defendant had the ability to avoid the collision by slackening speed, Edwards v. Dixon, Mo.App., 298 S.W.2d 466, 470, or swerving (the street was 27 feet wide and there were no parked cars, other children, or other obstructions to prevent him from swerving).

On the question of submissibility see Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, wherein it was held that a sub-missible case of humanitarian negligent failure to slacken speed and stop was made in spite of the fact that the evidence of the speed of the sled was ruled improperly admitted and the only evidence of its speed remaining in the record was that it was coming down the hill “pretty fast.” The facts showed that plaintiffs peril was discoverable and there was evidence of defendant’s ability to stop if he had discovered the sled when he was farther from the intersection than his stopping distance. In Williams v. Ricklemann, supra, the speed of the child as she approached the point of impact was not in evidence. The stopping distance required by the defendant was shown, and on the basis of discoverable peril and ability to stop short of the point of impact, it was held that a submissible case of humanitarian failure to slacken speed or swerve was made. In Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 603, it was said: “So, in considering whether a submissible case was made on humanitarian negligence in failing to stop, our simplified inquiry is whether defendant could have stopped within the available intervening distance of 170 to 124 feet after he saw Mike. If he could, it becomes unnecessary for us to assume or find, and thus wholly immaterial, precisely how far or precisely how fast Mike moved after he was sighted by defendant.” Finally, see Irvin v. Kelting, Mo.App., 46 S.W.2d 924, 926 [4],

For the error in the giving of instructions the judgment is affirmed and the cause remanded for a new trial.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

HENLEY, P. J., and SEILER, J., concur.

STORCKMAN, J., concurs in result.

      . Wherein it is stated that “When plaintiff submits two separate verdict directing instructions, defendant may converse each such submission with any of the approved converse instruction forms.”


author: HIGGINS, Commissioner.

text:
    Adele OVERBEY, Respondent, v. Norma FODDE, Appellant.
    No. 52679.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.

      Koenig & Dietz, F. Daley Abels, St. Louis, for respondent.
    James J. Amelung, Holtkamp & Ame-lung, St. Louis, for defendant-appellant.
   HIGGINS, Commissioner.

Action for $25,000 damages for wrongful death. Verdict and judgment were for defendant, but plaintiff was awarded a new trial on the specified ground that the verdict was “against the weight of the evidence.” Defendant contends that the court erred in granting plaintiff a new trial because “Plaintiff failed to make a submissible case on her theory that defendant drove on the wrong side of the road,” and that “Even if plaintiff made a submissible case * *, the trial court arbitrarily, abusively and unlawfully exercised discretion in setting aside the jury verdict * * * because the evidence in favor of plaintiff’s submitted theory is so meager and that in favor of defendant’s defense so overwhelming that the action of the trial judge is obviously the result of an arbitrary and capricious exercise of discretion.”

“The trial court is vested with an inherent and broad discretion in granting one new trial upon the ground the verdict and judgment are against the weight of the evidence. * * * And its ruling upon that ground will not be disturbed, except in case of manifest abuse * * *. The rule is sometimes expressed by saying ‘that the granting of a new trial by the trial court will not be interfered with on appeal where there is substantial evidence to sustain the trial court’s view, or, putting it another way, when there is substantial evidence to support a verdict for the party to whom a new trial is granted.’ ” Dawson v. Scherff, Mo., 281 S.W.2d 825, 831.

In determining whether the trial court properly exercised its discretion the record must be considered from a view most favorable to plaintiff to ascertain if there was sufficient substantial evidence to justify submission of plaintiff’s case, Gibson v. Newhouse, Mo., 402 S.W.2d 324, 327[5] and the order granting a new trial on the ground the verdict was against the weight of the evidence would be arbitrary and an< abuse of discretion only where the benefiting party failed to make a submissible case;. Schmidt v. Allen, Mo., 303 S.W.2d 652, 655[1].

Plaintiff’s husband, James Overbey, was, a passenger in a 1964 Valiant automobile driven by his nephew, Raymond Jacobs,, northbound on Lindbergh, a four-lane,, blacktop highway, 48 feet wide, in St. Louis County, Missouri. Defendant, southbound on Lindbergh in her 1964 Pontiac automobile, crossed the center line and collided with the Valiant, causing the death of plaintiff’s husband. The collision occurred about 12:30 p. m., November 15, 1964, in the northbound side of the highway. Rain was falling and the road was wet.

Raymond Jacobs, driver of the Valiant, had no recollection of the collision.

James Schubert witnessed the collision. He was driving south on Lindbergh in the passing lane or lane next to the center line. He was “probably six car lengths” behind the defendant’s Pontiac and was driving 40 to 45 miles per hour. He saw the Pontiac cross the center line and compared its crossing “to a car taking off of a main highway to a clover leaf, just a gradual left.” At that time he saw the northbound Valiant in “the outside lane, near the gravel.” There was no deviation in the course of the Pontiac from the time it crossed the center line to the collision in which “the front left of the southbound car and the front left of the northbound car” came together. In his recollection there was no mud on the highway.

On cross-examination he stated that “the road there was slippery but this was from the gasoline from the gas tanks.” He did not know if the road was slippery before the accident — “could’ve been.” His cross-examination identified a recorded statement given November 16, 1964, in which he placed himself “two hundred yards possibly” behind the Pontiac when he saw it cross the center line and into collision with the Valiant in the lane “nearest the center line.” “The highway was slick.” Upon further cross-examination he did not know whether the Pontiac was sliding when it made what appeared to him as a left-hand turn, and he did not remember “either way” whether he told police that the Pontiac skidded.

Trooper Richard L. Short of the Missouri State Highway Patrol investigated the accident. When he arrived at the scene the Valiant was “headed mostly north, north and west and * * * the Pontiac was turned around and was also headed northeast.” The Valiant was “mostly on the shoulder” on the east side of Lindbergh. He could recall no mud on the highway and in the appropriate space in his report form he indicated only that the road was wet. On cross-examination he was asked, “Did the witnesses themselves tell you that they saw skidding? A The driver of the Pontiac (Mrs. Fodde) indicated that she lost control and skidded.

“Q In your report you also say the witnesses indicated to you that there was skidding. I am asking specifically about Mr. Shubert. Is Mr. Shubert included in that group of witnesses? A I don’t recall the statements of the witnesses other than the driver.

“Q The driver of the southbound car indicated to you that she did skid. A Yes.”

Jim Bunch, Jr., testified by deposition. He was driving a tractor-trailer rig south in the outside of the two southbound lanes on Lindbergh and saw the collision between the southbound Pontiac and the northbound Valiant. He first saw defendant’s Pontiac “out of the corner of my eye in the mirror as it started to pass.” It was completely in the inside southbound lane travelling about 35 miles per hour. When first noticed by the truck driver, the Pontiac’s doors “were almost parallel” to his own. “I just glanced at it as it was alongside of me, and then it swerved and started across the ro'ad, and naturally I watched it then. * * * I thought it was going to fishtail, but it went almost, I would say, about at a 45-degree angle directly across the road in the other lane. * * * I couldn’t see any variation too much in the speed. I wasn’t paying any particular attention to that. It didn’t seem to me that it slowed too much. * * * I don’t remember just exactly at what time I seen the northbound car. Seems to me that it was just possibly a second or two before they hit. * * * He was in the outside lane.” Mr. Bunch saw nothing unusual about the roadway except being slick from rainfall. “There was no mud.” When he saw the Pontiac at its 45-degree angle, “The brake lights were on. I actually didn’t see any wheels sliding. I didn’t pay any attention to that; but there was no skid marks on the pavement at all.” The Pontiac “never varied from that angle. It went directly across. * * * It went at a 45-degree angle. It seemed that it held the same particular direction. It never varied.” Mr. Bunch saw the brake lights on the Pontiac and “couldn’t understand why she wouldn’t come off the brakes and try to get control of the car again, and she seemed to be frozen to the controls, and as I stated, was in the position completely across the road.”

There also was evidence that plaintiff was dependent upon her husband and of his earnings.

The defense was “non-negligent skidding,” evidence of which came from defendant’s 14-year-old son, Robert Fodde; however, as previously demonstrated, there was ample substantial evidence from which a jury reasonably could find that defendant drove the Pontiac automobile on the wrong side of the road and that collision with the Valiant automobile and plaintiff’s husband’s death resulted, clearly a submissible case. Hunter v. Norton, Mo., 412 S.W.2d 163, 165 [3,4].

Appellant cites Sanford v. Reeves, Mo.App., 399 S.W.2d 457, 461 [2]; Evans v. Colombo, Mo., 319 S.W.2d 549, 552[3]; Wray v. King, Mo.App., 385 S.W.2d 831, 835 [10], and Committee’s Comment, MAI 17.13, and argues that “Plaintiff’s own evidence showed skidding to be an element in the case and she should not have ignored this element in her instructions.” Neither the cases nor the argument is in point because the only issue is whether plaintiff made a submissible case, not whether she, in her own case, produced evidence of skidding requiring informing the jury in her submission of the exculpatory effect of a nonnegli-gent skid.

The discrepancies, if any, in the testimony of witnesses in plaintiff’s case would be for the jury to resolve, because, contrary to appellant’s argument, none of it consists of statements which are “so far removed from actual possibilities that they lose the force of bona fide estimates and honest opinions and become so manifestly incredible, irreconcilable with, and contrary to physical laws and common human knowledge that they demonstrate in and of themselves that they are made without actual knowledge and are mere conjecture, or wishful thinking. They do not constitute probative evidence.” Ewen v. Spence, Mo.App., 405 S.W.2d 521, 524[7].

Since it is demonstrable on this record that plaintiff made a submissible case, it may not be said that the trial court abused its discretion in granting plaintiff a new trial on the ground that the verdict is against the weight of the evidence. Moore v. Southwestern Bell Telephone Co., Mo., 301 S.W.2d 817, 820[3]; Gibson v. Newhouse, supra, 402 S.W.2d l.c. 327[4].

Judgment affirmed and cause remanded.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

HOUSER and WELBORN, CC., concur.

HENLEY, P. J., SEILER, J., and HOLMAN, Alternate J., concur.

STORCKMAN, J., not sitting.


text:
    Sadie BIRMINGHAM, Appellant, v. Clarence Allen SMITH, Respondent.
    No. 52643.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    J. William Blackford, Blackford & Wil-helmsen, Kansas City, for appellant.
    Walter F. Moudy, and Foust, Moudy & Jacobson, Kansas City, for respondent.
   HIGGINS, Commissioner.

Action for $25,000 damages for wrongful' death. Plaintiff appeals from verdict and judgment for defendant.

Plaintiff’s petition in part alleged: that plaintiff was the mother of Dottie Sue Birmingham, age 17, who, on June 5, 1964, was a passenger in an automobile operated by and under “the sole care and control of the defendant”; that while so operating his vehicle eastwardly on Independence Avenue near its intersection with Ewing Street in Kansas City, Missouri, “defendant negligently, carelessly, willfully and wantonly operated his vehicle off the traveled portion of the street and thoroughfare and into a bridge abutment, fatally wounding and killing the passenger, Dottie Sue Birmingham” ; and that as a direct and proximate result of defendant’s negligence, plaintiff was damaged.

Defendant in answer “2. Denies each and every allegation in plaintiff’s petition.”

At trial, defendant admitted that plaintiff’s daughter was killed “as a result of the accident.”

Mrs. Birmingham established that she was the mother of Dottie Sue Birmingham, age 17 years at her death, that she was a widow, that she was dependent in part on her daughter’s earnings, and that she had incurred a debt of $1,352.45 for her daughter’s funeral expense.

Vera Eckert, sister of the deceased, ordinarily transported the deceased to and from work. On the night in question the deceased had a date with defendant and he was to take her home. Both deceased and defendant worked a 4:00 p. m. to midnight shift.

Corporal Clifford E. Winkfield of the Kansas City, Missouri, Police Department, arrived at the accident scene at 4:15 a. m., June 5, 1964. He found a 1962 M.G. convertible automobile with its right front corner in contact with a concrete abutment of a bridge at Independence Avenue and Ewing Street. The defendant was unconscious in the automobile on the driver’s side. Rain had fallen earlier and the street was wet. There were no brake or skid marks discernible on the street

The defendant testified that his speed was 30 miles per hour, within the limit of 35 miles per hour, as he drove east on Independence Avenue. As he approached the intersection of Independence and Ewing, a light-controlled intersection, his speed might have been less “because I slowed down because the light had just turned green and I was going to have to stop, so I started slowing and then it turned green and I went on.” His automobile was in good mechanical condition and his windshield wipers were in operation, “it wasn’t raining as bad as it had.” Defendant testified further, over objection of plaintiff: “As we approached the intersection of the bridge I looked over the crest of the bridge and there was a car coming. I paid pretty well attention to it because I noticed it had just one headlight and it was dim. * * * I believe the left one was the only one on. * * * He was in the center lane on the westbound side. * * * about twenty-five or thirty foot away from me he just suddenly started veering to the left and coming into my lane and he just kept coming.

“Q (Mr. Moudy) Would that be in the same position where someone would make a sharp left turn there? A It would be positioning for a left turn. It would be just angling off like you see some people do.

“Q Cutting the corner? A Yes, sir.

“Q What did you do? A Well, I immediately, I saw him, he kept coming and didn’t seem like he saw me, or something, just like I wasn’t there and he just kept coming and I swerved hard to the right to avoid hitting him and applied my brakes.

“Q Do you know whether or not this-other car ever hit you? A Not to my knowledge, I don’t think so * * *. Because I swerved out of the way. * * *

“When he started to come over * * * she (Miss Birmingham) started to scream and that was it, and there was nothing else. * * * we noticed it coming toward us and I had to make a decision and I tried to turn to the right and to avoid hitting head-on. * * * It was, like I said, a light colored car and either a ’53 or ’54 Ford or Mercury. * * * I got out of the hospital about four months later and I was still in the cast and I had my friends, I got in their car and drove around that neighborhood and I combed it three or four times looking for that car.”

The record of the Jackson County Circuit Court showed that on October 23, 1964, defendant pleaded guilty to “careless driving, struck a bridge abutment,” June 5, 1964.

Appellant’s first point is that the court erred in admitting the quoted testimony of defendant “for the reason that the defendant pleaded a general denial and did not plead the matter of confession and avoidance or intervening cause” and under the general denial “bringing in new matter was not permissible.” Appellant would support his point by quotations, to wit: Berberet v. Myers, 240 Mo. 58, 144 S.W. 824, 832 [20], “ ‘the general denial puts in issue the facts pleaded in the petition, not the liability. The facts from which the law draws the conclusion of nonliability must be pleaded in the answer when they are not stated in the petition’”; and Gary v. Averill, 321 Mo. 840, 12 S.W.2d 747, 750[10], “The issues as made by the petition cannot be enlarged, either by the introduction of evidence or the giving of instructions.” Appellant also urges that, due to his objection, the issues raised by defendant were not tried by consent or implied consent as provided by Civil Rule 55.54, V.A.M.R., in respect to issues not raised by the pleadings being treated as properly pleaded if tried by express or implied consent. Appellant then argues that defendant’s general denial denied only “(1) that plaintiff was the mother of Dottie Sue Birmingham (2) that she was a passenger in an automobile being driven by the defendant (3) that said automobile was in the sole care and control of the defendant (4) that the deceased was exercising the highest degree of care for her own safety (5) that the defendant operated his vehicle off the street and into a bridge abutment (6) that Dottie Sue Birmingham was killed (7) that Dottie Sue Birmingham was employed and the sole support of plaintiff.” Appellant relies also on the requirement, Section 509.090, V.A.M.S., that an affirmative defense or any other matter constituting an avoidance must be pleaded “in order that (opposing parties) may be prepared on the issue,” White v. Wilks, Mo., 357 S.W.2d 908, 913 [13]; and argues that the “phantom car” was new evidence, was not necessary to support plaintiff’s petition and was not admissible because not pleaded as an affirmative defense, citing Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 38-39[6].

None of these authorities or arguments rule this case. Among the matters pleaded in the petition were the allegations that “defendant negligently, carelessly, willfully and wantonly operated his vehicle * * * into a bridge abutment * * * killing the passenger * * * that as a direct and proximate result of (that negligence) plaintiff has been damaged * Defendant’s general denial was a denial of the negligence attributed to him and of the proximate cause as well, in addition to the matters enumerated above in plaintiff’s argument. It is clear that under a general denial that a defendant may show himself to be free of the alleged negligence, e. g., Hornsby v. Fisher, Mo., 85 S.W.2d 589, 591 [1], “Defendant company’s answer was a general denial, and of course this put in issue the charges of negligence against it, and under such answer it was proper to show any facts which tended to establish that defendant company was not guilty of any negligence charged.” This is true also where such evidence from a defendant may be in the nature of sole cause in which case he may, if he chooses, introduce evidence because “Sole cause is not an affirmative defense and plaintiff has the burden of proof on the issue of defendant’s negligence * *. Therefore, it is not necessary in order for a defendant to be entitled to a verdict in his favor in a damage suit based on negligence that he introduce evidence from which it may affirmatively be found that he was not negligent. In other words, a defendant is not required to disprove plaintiff’s allegations of negligence.” Lynn v. Kern, Mo., 323 S.W.2d 726, 728[1], See also Wiseman v. Jackson, Mo.App., 309 S.W.2d 356, 362, where, under general denial, a defendant introduced evidence in respect to negligence charged against him to support a sole cause instruction.

Appellant contends also that receipt of this evidence violated the Dead Man’s Statute, Section 491.010, V.A.M.S. There was no objection to this effect at trial and no such contention was presented to the trial court in the new trial motion; consequently, it is not preserved for review. Dudeck v. Ellis, Mo., 399 S.W.2d 80, 97 [18].

Appellant complains next of the giving of Instruction 3. It is unnecessary to note either the instruction or the error charged because the instruction was “given by plaintiff” and given by the court in plaintiff’s behalf as her verdict-directing instruction and “(she), of course, cannot complain here about the Instruction given on (her) behalf and at (her) request.” Leathern v. Longenecker, Mo., 405 S.W.2d 873, 876 [ 1 ].

Appellant charges error in the giving of Instruction 4 “as that issue was not before the Court on the pleadings, defendant not, by general denial, denying liability,” citing again the quotation from Berberet v. Myers, supra.

Instruction No. 4 is MAI 29.02(2): “Your verdict must be for defendant if you do not believe that defendant was negligent.” As such, it is simply a converse of plaintiff’s verdict-directing instruction which required as a condition of plaintiff’s recovery that the jury find “Third, defendant was thereby negligent,” a converse to which defendant was entitled. See MAI 29.01 Converse Instructions—General Comment; MAI 29.-02(2); Committee Comment (3) MAI 1.03.

Insofar as this contention may be a contention that defendant’s general denial did not permit a contest of the issue of defendant’s alleged negligence, it has been discussed in disposing of appellant’s first point.

Finally, appellant says the given burden-of-proof instruction was erroneous because “the court allowed the defendant to introduce an affirmative defense” which required the addition of the words; “The burden is upon the defendant to cause you to believe the propositions necessary to support his defense * *

Instruction No. 2 is MAI 3.01. It is sufficient in this case without the added language because, as previously demonstrated and ruled, defendant’s evidence went only to freedom from negligence or sole cause, such are not affirmative defenses and, therefore, it was not necessary to instruct on any burden of proof on defendant. See Notes on Use MAI 3.01.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.

      . Sole cause instructions are no longer given, MAI 1.03; however, MAI has not changed the law on admissibility of evidence tending to establish that one is not guilty of the negligence charged, and “The prescribed (MAI) converse forms adequately present the same defense.” Committee’s Comment, MAI 1.03.


author: WILLIAMS, Chief Justice.

text:
    Cora I. STORY, Appellant, v. Grace L. BURGESS et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 3, 1967.
    Allen Schmitt, Louisville, for appellant.
    John G. Crutchfield, Thomas G. Mooney, Jones, Ewen, MacKenzie & Peden, Louisville, for appellees.
   WILLIAMS, Chief Justice.

Appellant Cora I. Story was injured in an automobile accident which occurred near Anderson, Indiana. At the time she was a guest passenger in an automobile which was being driven by appellee Grace Burgess. Both ladies were and are residents of Louisville.

Cora I. Story filed suit against Mr. and Mrs. Burgess in the Jefferson Circuit Court. By way of answer the Burgesses pleaded the Indiana Guest Statute (Statute 47-1021). A jury returned a verdict against Cora I. Story and this appeal is taken from the judgment entered on that verdict.

The pertinent facts in this case are identical to those in Wessling v. Paris, Ky., 417 S.W.2d 259 (1967), which was decided after this trial was had. There we pointed out that all the interests involved are Kentucky interests. We held that the guest passenger’s right of action against the driver should be determined by Kentucky law, the law of the state in which both parties are domiciled and to which they intended to and did return.

This case being identical to the Wessling case, it must be decided upon that authority.

The judgment is reversed.

EDWARD P. HILL, MILLIKEN, PAL-MORE and STEINFELD, JJ., concur.