author: COLLINGS, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. O. O. LIPTRAP, Appellee.
    No. 4105.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 28, 1966.
    Rehearing Denied March 31, 1967.

      Kerr, Fitz-Gerald & Kerr, L. Lloyd MacDonald, Midland, for appellant.
    Hartman Hooser, R. H. Weaver, Big Spring, for appellee.
   COLLINGS, Justice.

This is a Workmen’s Compensation suit. Judgment was rendered in favor of the plaintiff, O. O. Liptrap, for maximum benefits under the Workmen’s Compensation Act based upon jury findings of total and permanent incapacity and the wage rate of another employee. The defendant, The Travelers Insurance Company, has appealed.

The record shows that appellee, O. O. Liptrap, sustained an accidental personal injury in the course of his employment for the Yellow Cab Company of Big Spring on December 18, 1964. He had been employed by that company for six or seven years and that was his only job.

Appellant urges points contending that the evidence is insufficient to support the finding that appellee is totally and permanently disabled and that such finding is against the great weight and preponderance of the evidence. Appellant also contends that the finding that appellee’s incapacity is not caused solely by disease and natural causes wholly independent of the claimed injury is against the great weight and preponderance of the evidence. Considering the evidence as a whole, under the rule announced in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, it is our opinion that these points should be overruled.

The evidence shows that on the night of December 18, 1964, appellee slipped and fell on ice at the rear of the N.C.O. Club where he had been called to pick up a passenger, and thereby sustained the injury complained of. Appellee testified that he fell on his back and lost consciousness; that the next thing he remembered was that a man and woman helped him up; that after he had somewhat recovered he called the cab company and told them he was hurt, and then went home. Appellee testified that he has been unable to work since this accident; that the owner of the cab company wanted him to work again but he was not able to do so, and was still unable to work at the time of the trial.

After his injury appellee was treated by a medical doctor and a chiropractor. The physician who treated appellee the day after his injury found a contusion on his chest and that he was sore in both the front and back of his chest; also that there was a marked showing of arthritis of long standing, and degeneration of two vertebrae; that the arthritis which appellee had was made more evident and manifest by the trauma, and that appellee was still complaining of his back the last time he examined him. He testified that it was hard to say whether trauma makes arthritis progress further, but he did know that pain is more evident where there is trauma. The doctor stated the opinion that any arthritic changes in appellee’s condition would have taken place regardless of the trauma. Appellee was released, to return to work, by the treating physician after six weeks. The physician stated that appel-lee should work in order to gain relief from the arthritic condition. He also stated that appellee was troubled with emphysema and bronchitis and that neither was related to his accidental injury.

The chiropractor who treated appellee also treated him prior to the time of his injury. He stated that during such prior treatment appellee had high blood pressure, varicose veins, numbness in the legs and arms and difficulty in breathing, due to a stroke. About a month after appellee’s injury the chiropractor found the existence of appellee’s arthritic condition which he stated had built up over a period of years. He stated, however that appellee had made no complaint about his back prior to the injury of December 18, 1964. The chiropractor stated that in his opinion appellee would not in the future be able to obtain and keep a job; that such inability to obtain and retain employment was attributable to the injury, and that his condition in this respect was permanent, particularly in view of the amount of arthritis which existed. The chiropractor stated that in his opinion appellee was totally and permanently disabled.

In summary, the evidence shows that appellee was able to and did work part time before his injury. He has done no work since the injury and testified that he was unable to work. This testimony in connection with that of the medical doctor and chiropractor concerning his disability, in our opinion, presented questions of fact for the jury and was sufficient to support the finding that appellee is totally and permanently disabled. Appellant’s points on the sufficiency and great preponderance of the evidence are overruled.

Appellant presents numerous points complaining of the action of the court in rendering judgment for appellee based upon the earnings of another employee under Subdivision (2) of Section 1, Article 8309 Vernon’s Ann.Civ.St. All three subdivisions of Section 1 were submitted to the jury which found that appellee did not work in the employment in which he was working at the time of his injury for at least 210 days of the year immediately preceding the date of his injury, that there was another employee of the same class as appellee who had worked for the statutory period of time in the same or similar employment; that his average daily wage was $11.00, and the average weekly wage of appellee which would be fair and just to both ap-pellee and appellant was $11.94. It is not contended by either of the parties that the evidence shows appellee worked as much as 210 days during the year immediately prior to his injury. Actually, the record shows that he worked only 156 days during that period. Appellant contends that Subdivision (2), which concerns the earnings of another employee is not applicable because appellee and such other employees as shown by the evidence were paid commissions based upon their individual day’s receipts of cab fares. The evidence shows that appellee did not work regularly at the job and that his earnings in the 156 days he worked during the year immediately preceding his injury were $597.58. Appel-lee had not worked the statutory time during the preceding year so as to comply with Subdivision (1). His average annual earnings during the six or seven years that he had previously worked for the Yellow Cab Company were approximately $736.00.

The evidence does show that there were other employees who had worked at least 210 days during the year immediately preceding appellee’s injury. These employees were also cab drivers paid on a commission basis but their earnings varied from $7.00 to $15.00 per day. None of them received the same amount per day or per week as appellee was paid for his services. Under the evidence it was not practical to compute appellee’s “average weekly wages” under Subdivision (2). The court erred in rendering judgment on the theory of another’s employment and earning capacity under the provisions of Subdivision (2) of Section 1 of Article 8309.

The jury found $11.94 to be the average weekly wage which would be fair to both plaintiff and defendant. The evidence supports that finding. In our opinion judgment should have been rendered for the plaintiff based upon such findings under Section 1, Subdivision (3) of the statute. Casualty Reciprocal Exchange v. Dawson (Eastland Civ.Apps. 1935), 81 S.W.2d 284, writ dismissed with opinion in 130 Tex. 362, 107 S.W.2d 994; Employers’ Liability Assurance Corp. v. Manning (Dallas Civ. App., 1945), 188 S.W.2d 268, ref. want of merit; Texas Employers’ Insurance Ass’n. v. Pearson (Amarillo Civ.App., 1934), 67 S.W.2d 630, writ dismissed; Texas Employers Insurance Ass’n. v. Rigsby (Beaumont Civ.App., 1954), 273 S.W.2d 681, no writ history; Texas Indemnity Insurance Co. v. Smith (Amarillo Civ.App., 1934) 73 S.W.2d 578, no writ history; Article 8309, V.A.C.S. In the last cited case the court in passing upon this question stated as follows:

“Where the statute plainly says, as in subdivision 2, that the average daily wage of one employee of the same class is to be the basis, the court should not submit to the jury an issue where several witnesses of the same class are shown to be drawing different salaries or wages. * * * If upon another trial the evidence is the same, the court should submit the issue of compensation under subdivision 3.”

The judgment is reformed and judgment is rendered for appellee on the basis of the jury finding concerning a wage rate which is just and fair to both parties. Judgment is accordingly rendered for ap-;pellee for $9.00 a week for 401 weeks, in compliance with the finding of the jury and the provisions of Section 1, Subdivision (3) of the statute. As so reformed the judgment is affirmed.


source: Caselaw Access Project

author: PRESLAR, Justice.

license: Public Domain

text:
    TEXACO, INC., a corporation, Appellant, v. R. W. FARIS and Wife, Eugenia Faris, Appellees.
    No. 5794.
    Court of Civil Appeals of Texas. El Paso.
    March 8, 1967.
    Rehearing Denied April 5, 1967.

      Johnston S. Rowe and W. N. Sands, Midland, for appellant.
    Shafer, Gilliland, Davis, Bunton & Mc-Collum, Lucius D. Bunton and Ray C. Stoker, Jr., Odessa, for appellees.
   OPINION

PRESLAR, Justice.

This suit was brought by appellees R. W. Faris and wife against appellant Texaco, Inc., for damages to Lot 18 of the Western Hills Subdivision to the City of Odesssa, Texas. Appellees are the owners of the surface of such lot, and appellant is the owner of an oil and gas lease covering that lot and the surrounding acreage. Basis of appellees’ claim is that Texaco made an excessive use of the surface of Lot 18 in the drilling and operating of an oil well. Jury verdict was for the surface owners in the amount of $1,000.00.

Basic questions are whether the case was submitted on the proper legal theory, and whether there is any evidence or sufficient evidence to support the jury’s findings. Issue No. 1 is as follows:

“Do you find from a preponderance of the evidence that Texaco, Inc., acting by and through its duly authorized officers, agents, servants, and employees, made an unnecessary use of the surface estate of R. W. Faris on or about April 23, 1962, and thereafter, in its operation of producing the oil and gas lying in and under the land covered by Texaco Inc.’s oil and gas mining lease?”

The court’s charge contained an explanatory instruction to the jury to take into consideration only what they found from the evidence to be unnecessary, and to exclude from consideration what was found to be necessary.

Appellant contends that the rights of the parties, and its consequent liability, are not correctly determined by the proposition of “unnecessary use”; that such is not the proper legal test. It is appellant’s position that the correct rule of law is that an oil and gas lessee has the right to use so much of the surface as is “reasonably necessary” to comply with the terms of the oil and gas lease and effectuate the purposes thereof. It offered a definition and explanatory instruction of the law as to “reasonably necessary” to be placed in the charge, and it requested issues inquiring whether the use it made of the surface was reasonably necessary. We are of the opinion that the court did not err in refusing the requested issues and instructions, and that the correct test of liability was the inquiry as to unnecessary use. The rights of the parties depend on the nature of the estate owned by each. Faris took a deed to the surface estate subject to the existing oil and gas lease of Texaco. That oil and gas lease granted Texaco an easement in the surface estate of Faris, and it sets out the extent or scope of the easement. It provides:

“1. Lessor in consideration of One and No/100 Dollars ($1.00) in hand paid, and of the agreements of Lessee herein contained, hereby grants, leases and lets exclusively unto Lessee, for the purpose of testing by any method for formations or structures and prospecting and drilling for, mining, and producing oil, gas, distillate, sulphur and other minerals, injecting salt water, other fluids, and gas, into subsurface strata, storing minerals and fluids, laying pipe lines, dredging canals, building roads, bridges, docks, tanks, powers, stations, telephone and electric transmission lines, and other structures and facilities including houses for employees, necessary for producing, saving, caring for, treating, processing, and transporting minerals and conducting said operations, the following described land. * * * ” (Emphasis supplied).

The conventional oil and gas lease confers on the lessee the right to use so much of the surface as is reasonably necessary to comply with its terms and effectuate its purpose. Warren Petroleum Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352 (1957), and cases cited. Typical of such leases is that express uses of the surface are set out — i. e., lay pipe lines, provide storage, build roads, construct telephone and telegraph lines, etc. —with no express provision as to the extent or amount of such pipe line laying, road building, storage facilities, etc. In the absence of such express provision as to the extent of use, its extent is said to be that which is “reasonably necessary”. Whether the express uses are set out or not, the mere granting of the lease creates and vests in the lessee the dominant estate in the surface of the land for the purposes of the lease; by implication it grants the lessee the use of the surface to the extent necessary to a full enjoyment of the grant. Without such use, the mineral estate obtained under the lease would be worthless. However, in the lease before us, express uses of the surface were set forth and the extent of such uses was specified. Therein lies the difference in the basis on which this case was submitted and the basis urged by appellant. The scope and extent of the surface use grant must be determined by the lease itself. Joyner v. R. H. Dearing & Sons, Tex.Civ.App., 134 S.W.2d 757 (err. dism., jdm. cor.). The case before us is controlled by the express provision as to extent or scope of the use to be made of the surface, rather than any implied right to use. In the above-quoted granting clause-of the lease, the parties provided for certain uses to be made of the surface and expressly defined those uses as being what was “necessary”. Appellant had the right to do those things enumerated to the extent necessary, not “reasonably” necessary. Appellees having claimed appellant made an excessive use of the surface, we think the court submitted the proper test — do you find from a preponderance of the evidence that Texaco made an unnecessary use? The parties to the lease having set the scope — “necessary”—the court should not change that to “reasonably necessary” any more than it should change it to “absolutely necessary” or some other shade or degree.

The terms of the lease also provide an answer to another contention of appellant: That from appellees’ and appellant’s common source of title, certain reservations were made for the benefit of the mineral estate when the surface was conveyed, to-wit: “There is excepted from this grant and reserved unto grantors, their heirs and assigns, all of the oil, gas and other minerals, both similar and dissimilar, and including water (except water used on the land for domestic and stockraising purposes), in and under and that may be produced from the above described land, together with the first and superior right to at any and all times, either individually or through lessees, grantees, or contractors, enter upon said land and use such part of it as may be reasonably necessary or convenient in connection with the investigation, development and operation' thereof for oil, gas and other mineral * * * We fail to see how this enlarges appellant’s rights, because the rights here reserved were not passed on to appellant by the terms of the grant of the oil and gas lease. Also, the oil and gas lease has a provision that either party may assign its rights, but that no change in ownership shall enlarge the obligations ■or diminish the rights of the lessee.

Three issues were submitted to the jury, and by the answers to these it was established: (1), that Texaco used more surface in its producing operations than was necessary; (2), that such use depreciated the value of the surface estate; (3), in the amount of $1,000.00. Error is assigned that there is no evidence to support each of these issues and, alternatively, that the evidence is insufficient to support each. When the assignment is that there is “no evidence”, the reviewing court may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence which would lead to a contrary result. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). When the contention is made that the evidence is insufficient to support the jury finding, or the finding is against the great weight and preponderance of the evidence, a court of civil appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. From a careful study of the statement of facts and exhibits before us, we have concluded that the jury’s findings should be sustained. The evidence is weak as to the plaintiff’s burden of establishing that Texaco made an unnecessary use, but it is sufficient to the extent that we are unable to conclude that it warrants reversal as being so against the great weight and preponderance as to be clearly wrong and unjust. Texaco had the right to do such things as were necessary, and the jury was asked to find if an unnecessary use was made by it. There was before the jury evidence as to what was necessary to be done, and there was evidence as to what was actually done. From a balancing or measuring of what was done against what was necessary, it was determined that more was done than was necessary.

All assignments of error are overruled, and the judgment of the trial court is affirmed.


text:
    C. & G. COIN METER SUPPLY CORPORATION, Appellant, v. FIRST NATIONAL BANK IN CONROE, Texas, Appellee.
    No. 4147.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 27, 1967.
    Rehearing Denied Feb. 24, 1967.
    J. A. Amis, Jr., Bryan, for appellant.
    McClain & Harrell, Conroe, for appellee.
   COLLINGS, Justice.

The First National Bank in Conroe brought suit against Gary D. Gray as principal and C. & G. Coin Meter Supply Corporation as surety on a $12,749.00 note. The defendant C. & G. Coin Meter Supply Corporation filed a general denial and alleged a novation contending the note sued upon had been paid, discharged and superseded by the execution and delivery by Gray of his note to the bank in lieu of and in an amount greater than the note sued upon, without the prior knowledge and consent of defendant C. & G.; that by reason thereof the original note had been discharged as well as the liability of Gary Gray as the principal and C. & G. as guarantor or surety thereon. The case was tried before the court without a jury and judgment was rendered for plaintiff against the defendants for the amount of the principal and interest due on the note and for foreclosure of plaintiff’s chattel mortgage lien. C. & G. Coin Meter Supply Corporation, hereinafter referred to as C. & G. or as appellant, has appealed.

The record shows that appellant was the Commercial Distributor for Norge sales Corporation for the State of Texas and a portion of Louisiana and handled Norge commercial equipment including washers, dryers, dry cleaning equipment and related equipment for laundry and dry cleaning departments of self service stores. The court found that on February 17, 1962, appellant sold to Gary D. Gray washateria equipment described in the chattel mortgage which was the basis of appellee’s suit and Gray executed and delivered to appellee bank his note in the principal sum of $12,-749.00. Appellant signed the note as guarantor. The proceeds of the loan which the bank made to Gray paid for the equipment which he bought from appellant. The court filed findings of fact, among which were the following:

“5. That on or about November 3, 1962, Defendant Gary D. Gray requested Plaintiff to renew the original note and to include therein an additional One Thousand ($1,000.00) Dollars, stating that C. & G. Coin Meter Supply Corporation would sign the new note.

6. That Plaintiff Bank, by long distance telephone conversation with C. R. Guest, President of Defendant C. & G. Coin Meter Supply Corporation, was advised that said Defendant would sign the new note in which there was to be included the additional One Thousand ($1,000.00) Dollars.

7. That Plaintiff Bank relied upon said promise, believing that C. & G. Coin Meter Supply Corporation would sign the new note along with Gary D. Gray, and proceeded to prepare another note, dated November 3, 1962, in the sum of Thirteen Thousand, Two Hundred Seventy-Six and 3¾00 ($13,276.38) Dollars, and contemporaneously therewith stamped the original note as renewed.

8. That Defendant C. & G. Coin Meter Supply Corporation afterwards failed and refused to sign the new note in the sum of Thirteen Thousand, Two Hundred Seventy-Six and 3¾00 ($13,276.38) Dollars.

9. That Defendants became delinquent in the payment of the balance of the note bearing date of February 17, 1962.

10. That although demand was made upon Defendants to pay the indebtedness represented by said note, they nevertheless failed and refused to do so.

11. Plaintiff, as the legal owner and holder of said note, together with the chattel mortgage securing same, declared same due and payable in its entirety, and the unpaid balance of principal and interest of said note as of July 23,1963, was the amount of Nine Thousand, One Hundred Seventy-Eight and 4Moo ($9,178.41) Dollars.

12. That Plaintiff placed said note in the hands of its attorney for collection and suit; under and by virtue of the terms and provisions of said note Defendants became bound and obligated to pay Plaintiff the full amount of the balance of principal and interest due as specified in said note, and also twenty (20%) per cent on such unpaid balance of the principal and interest as attorneys’ fees.

13. That said chattel mortgage created a valid and subsisting lien against the washateria equipment described therein, to secure the payment of said note, including principal, interest and attorneys’ fees, and the said chattel mortgage is still in full force and effect.

14. That Plaintiff sued upon the original note and did not attempt to hold defendant C. & G. Coin Meter Supply Corporation liable upon the second note, which it did not sign.

15. That the extension or renewal of the note sued upon was granted with the full knowledge, consent and acquiescence of Defendant C. & G. Coin Meter Supply Corporation, and with the promise that it would sign the new note.

16. That there was no expression or intention on the part of Plaintiff to discharge the old note by renewing same.

17. That said note contained the following provision: ‘Each maker, surety and all endorsers hereof severally waive notice, protest, presentment for payment, and consent that the time of payment may be extended or this note renewed without notice and without releasing any of the parties hereto.’ ”

In compliance with appellant’s request for additional findings of fact the court made the following additional findings :

“1.

The Note bearing date of February 17, 1962, made the basis for Plaintiff’s suit, was signed by Gary D. Gray, as Principal, and C. & G. Coin Meter Supply Corporation, by C. R. Guest, President, as Guarantor or Surety.

2.

Defendant C. & G. Coin Meter Supply Corporation did not agree in writing to the renewal in an increased amount of the note sued upon.

3.

Plaintiff Bank has not released Defendant Gary D. Gray from payment of the renewal note.”

The court also made the following conclusions of law:

“The Court is of the opinion and so finds that from the facts of this case the note sued upon has not been paid, discharged and superseded by the execution and delivery by Gary D. Gray of his note to Plaintiff in lieu of and in an amount greater than the note sued upon, and, therefore, Plaintiff, First National Bank in Con-roe, Conroe, Texas, is entitled to recover of and from Defendants Gary D. Gray and C. & G. Coin Meter Supply Corporation, as for its debt the sum of Nine Thousand, One Hundred Seventy-Eight and 4Jioo ($9,178.-41) Dollars, together with accrued interest thereon at the rate of ten (10%) per cent per annum from July 23, 1963, up to the date hereof, as well as interest at the rate of six (6%) per cent per annum on the amount of this Judgment from the date hereof until paid, together with the foreclosure of the chattel mortgage dated the 26th day of February, 1962, and for twenty (20%) per cent of the full amount of the principal and interest in the sum of One Thousand, Nine Hundred Thirty-Seven and 6%oo ($1,937.66) Dollars as attorneys’ fees and cost of suit.”

Appellant presents points urging that the court erred as a matter of law in rendering judgment for plaintiff and that the judgment as a matter of law is not supported by probative evidence. Appellant further urges, in effect, that even if the court’s findings of fact numbers 5, 6, 7, 8, 9, 10, 12, 15 and 16 are supported by evidence they still form no legal basis in support of the judgment. It is undisputed that the original note was dated February 17, 1962, and signed by appellant C. & G. as guarantor. This note was renewed by the bank on November 14, 1962, and included an additional amount of $1,000.00. Appellant did not sign the new note, did not agree in writing to the renewal in an increased amount, but did orally agree to such renewal.

Appellee, First National Bank in Conroe, brought this suit against Gray, as principal and appellant C. & G. as guarantor on the note executed by them on February 17, 1962. Judgment was entered on said note and appellee does not seek to hold appellant upon the renewal note executed by Gray on November 3, 1962. Appellant, C. & G. contends that it has been released from the original obligation by reason of the execution of the subsequent note by Gray without the joinder of appellant as endorser or surety thereon; that it is no longer liable on the original note because appellee accepted a renewal note from the principal obligor, which was a material alteration of the original, in that, it created a new and more onerous obligation on the principal and upon appellant if he should be held liable thereon. Appellant contends that under these circumstances it is no longer bound by any obligation under the original note. We cannot agree with this contention. There is ample evidence in support of the findings of the court, its conclusions of law, and the judgment. We overrule appellant’s contentions to the contrary.

As a general rule the giving and taking of a new note operates as an extension of time of payment of the original indebtedness. Borden v. Arnold, 94 S.W.2d 216, (Ct.Civ.Apps.1936, writ ref.). In such a case it is held that endorsers are not discharged if they consent to an extension of the time of payment or when they have expressly agreed that the time of payment may be extended without notice to them. Simpson v. McDonald, 142 Tex. 444, 179 S.W.2d 239, (Sup.Ct.1944); Darby v. Farmers’ State Bank, 253 S.W. 341, (Ct.Civ.Apps.1923, no writ history.)

The note here sued upon contains a provision that: “Each maker, surety and all endorsers hereof, severally waive notice, protest, presentment for payment, and consent that the time of payment may be extended or this note renewed without notice and without releasing any of the parties hereto.” It is held that such a provision in a note is valid and blinding upon all parties thereto, including those secondarily liable. Welch v. Beall, 153 S.W.2d 338, (Ct.Civ.Apps.1941, ref. w. m.); Sharpe v. National Bank of Commerce, 272 S.W. 321, (Ct.Civ.Apps.1925, writ dismissed). Consent is effective when given either before or after the extension. Brinker v. First National Bank, 37 S.W.2d 136, (Com.1931). An agreement or consent for the extension of time of payment may be oral. Mizell Construction Company and Truck Line, Inc. v. Mack Trucks, Inc., 345 S.W.2d 835, (Ct.Civ.Apps.1961). In the instant case there was not only the written provision of the original note agreeing that the time of payment might be extended or the note renewed without releasing any of the parties, there was also an oral agreement by appellant’s president at the time of the extension or renewal that he would sign the new note. Although he agreed to do so he never signed the new note.

Under these facts it is our opinion that appellant was not discharged as guarantor on the original note and appellee was entitled to recover thereon. Chapman v. Crichet, 127 Tex. 590, 95 S.W.2d 360, (1936); Borden v. Arnold, supra; Kern v. Smith, 164 S.W.2d 193, (Ct.Civ.Apps.1942, Ref.W.M.). There was never an intention by any of the parties that appellant would be released as guarantor. Except for the promise that appellant would join with Gray in signing the new note providing for the payment of an additional $1,000.00 the new note would never have come into existence. The judgment against appellant is not upon the new note but upon the original note which appellant signed as guarantor. Appellant’s points are all overruled.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    J. C. PATTON et ux., Appellants, v. Alice M. SHAMBURGER, Guardian, Appellee.
    No. 4140.
    Court of Civil Appeals of Texas. Eastland.
    March 3, 1967.
    Rehearing Denied March 24, 1967.
    Huff & Bowers, Bob Huff, Lubbock, for appellants.
    Scarborough, Black, Tarpley & Scarborough, Frank Scarborough, Abilene, for appellee.
   GRISSOM, Chief Justice.

Jack E. Patton was killed in the course of his employment. His employer’s insurer paid into court the correct amount of death benefits under the Workmen’s Compensation Law and asked it to determine who was entitled thereto. Such benefits were claimed adversely by the surviving father and mother of the deceased and by his two minor children, acting through their mother, Mrs. Alice M. Shamburger, as their guardian. The children’s mother’s second husband had adopted Jack E. Patton’s children. It was further stipulated that Jack E. Patton and the present Mrs. Shamburger were divorced in 1956; that Jack E. Patton was killed in 1965; that Larry Estel and James Allen'Patton, the minor children of Jack E. Patton, deceased, and Mrs. Alice M. Shamburger, were adopted by Charles D. Shamburger in 1963; that Mrs. Sham-burger was their legally qualified guardian; that Jack E. Patton and Mrs. Alice M. Shamburger had no other children; that Jack E. Patton left no surviving widow; that J. C. and Fern Patton, the father and mother of the deceased, were dependent upon him and that Jack E. Patton had not contributed to the support of his children since their adoption by Shamburger.

In a trial to the court, it was held that the surviving children were entitled to the money so paid into court to the exclusion of deceased’s surviving dependent parents, regardless of the fact that said children had been adopted before their natural father’s death. The only issue presented is whether the adoption of said children by Mr. Shamburger before the death of their natural father deprived the children of their right otherwise to the Workmen’s Compensation benefits due upon the death of their natural father. Minor children are entitled to such compensation to the exclusion of surviving parents, regardless of the parents’ dependency. Article 8306, Sec. 8a. It is clear that said children were entitled to recover said benefits unless they were deprived thereof by the fact that they were so adopted. All parties agree that this is a case of first impression and that there is no case directly in point in Texas. Appellee cites authorities from other jurisdictions having similar statutes. Dependency of the parents is not controlling.

In Stark v. Watson, Okl., 359 P.2d 191, there was a contest over such a fund between two natural children of a deceased workman, one of whom had been adopted prior to their father’s death. The Supreme Court of Oklahoma held that an adopted child inherited from his natural parents. Such is the law in Texas. Adoption, Vernon’s Ann.Civ.St. Article 46a, Sec. 9, page 151; V.A.T.S. Probate Code, § 40. That court said:

“Under the law of adoption, the natural parent and the adopting parent each must consent to the new relationship before the child can be legally adopted. By consent each is bound. The adopted child, the person principally affected by the transaction, has no choice and gives no consent. His natural parent, by his consent to his adoption loses his right to inherit from his natural son. But no one consents for the innocent and helpless subject of the transfer that he shall lose the right to inherit from his natural parent, whose issue, under section 701, he does not cease to be when the right to his control passes to another. Nor does he lose by adoption that right which the law of succession gives him, except when ‘by the terms of express statute or by inexorable implication’ the law of succession has been so limited and restricted.”

In Jones v. Holmes Construction Company, 84 Idaho 327, 372 P.2d 406, the Supreme Court of Idaho held that the adoption of a minor during the compensation period did not terminate his right to such benefits.

In Shulman v. New York Board of Fire Underwriters, 15 A.D.2d 700, 223 N.Y.S.2d 312, the Supreme Court of New York held that the compensation law of New York provided for payment of death benefits to a surviving minor and that whether he was dependent was immaterial. There the minor had been adopted by another prior to the death of her natural father. The adoption law in New York, as in Texas, provides that an adopted child inherits from its natural parent. In holding that an adopted child was entitled to recover such death benefits that court said:

“In the process of explaining the meaning of the word ‘child’ as used in the Workmen’s Compensation Law, the Legislature did not exclude the offspring of natural parents. It simply extended the meaning of the term to include certain parent-child relationships natural and artificial which, unless clarified, might be deemed not to be within the literal sense of the word. Had the purpose been to destroy the consanguineous connection between a father and his natural child adopted by another as the basis for an award of death benefits, the statutory definition certainly would have been so precisely written as to leave no doubt that such was its intent. Moreover, the care with which the Legislature preserved in related statutes the right of such a child to inherit from his natural parents is a reliable guide to the object sought to be accomplished by subdivision 2 of section 16. Neither logic nor reason dictates any real distinction between the statutory devolution of property in the case of intestacy and the succession to a right conferred by the Workmen’s Compensation Law. Each has for its purpose the promotion of the economic good of the child. We think that the word ‘chld’ as used in the statute was intended to embrace one having the kindred and adoptive ties of the infant appellant.”

It is evident that our Legislature intended for the law of descent and distribution to determine the priority of classes entitled to recover such death benefits and provided that an adopted child should inherit from his natural parent.

We are indebted to both parties for excellent briefs. We conclude, as asserted by appellee, that the cases relied upon by appellants are distinguishable and that in all other jurisdictions from which authorities have been cited adopted children have been allowed to recover such benefits unless clearly excluded by statute.

The judgment is affirmed.


author: WALTER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Dempsey WHITE, Appellee.
    No. 4136.
    Court of Civil Appeals of Texas. Eastland.
    March 10, 1967.
    Rehearing Denied May 26, 1967.
    Turpin, Smith, Dyer, Hardie & Harman, Max N. Osborn, Midland, for appellant.
    Warren Burnett and Robert D. Pue, Odessa, for appellee.
   WALTER, Justice.

Dempsey White recovered judgment against The Travelers Insurance Company for total and permanent disability under the Workmen’s Compensation Law. Travelers has appealed.

Appellant says the only testimony in this case which would even suggest that appellee’s incapacity was total and permanent came from the appellee himself. Ap-pellee’s testimony made an issue on total and permanent incapacity. Texas Employers Ins. Ass’n v. Hevolow, 136 S.W.2d 931 (Tex.Civ.App.1940, dism. Judgm. Cor.); American General Insurance Company v. Florez, 327 S.W.2d 643 (Tex.Civ.App.19S9, no writ history).

The court’s definition of partial incapacity was proper under Texas Employers Ins. Ass’n v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.1940, writ ref.).

Appellant objected to appellee’s argument to the effect that a verdict in ap-pellee’s favor would entitle him to future medical benefits because it was outside the-record and advised the jury of the law which was not included in the charge. We hold that the argument was improper, but do not believe that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure; Aultman et al. v. Dallas Railway & Terminal Company, 152 Tex. 509, 260 S.W.2d 596 (1953).

Appellant’s contention that there was no evidence to support the findings that appellee sustained total and permanent incapacity cannot be sustained. In passing on a no evidence point to determine if there is any evidence to support a finding of the jury or an implied finding of fact, we must consider only the evidence most favorable to the finding and disregard that which is opposed to it. Renfro Drug Co. et al. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1950).

We have considered the entire record and hold that the findings of total and permanent incapacity are not contrary to the great weight of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    Jerry COVINGTON, Appellant, v. George C. BURKE, Appellee.
    No. 4139.
    Court of Civil Appeals of Texas. Eastland.
    March 10, 1967.
    Rehearing Denied March 31, 1967.

      Garland Casebier, Midland, for appellant.
    Key, Carr & Clark, Lubbock, Aubrey J. Pouts, Lubbock, for appellee.
   WALTER, Justice.

George C. Burke recovered a judgment against Jerry Covington for damages growing out of a wrongful deed of trust foreclosure. Covington has appealed. Burke has a cross-point asserting the court erred in failing to render judgment in his behalf for $5,000.00 punitive damages awarded him by the jury.

Covington sold Burke seven small tracts of land in Reeves County for $1,755.00 These were small forty and eighty acre tracts. Burke executed a vendor’s lien note for $1,170.00 payable at Midland, Texas, and a deed of trust which permitted the holder of the indebtedness, at his option, to declare the entire balance due if taxes on the property became delinquent.

The record conclusively shows that Burke was not delinquent in the payment of principal and interest at the time of foreclosure. The record shows, without dispute, that Burke permitted the taxes on the property to go delinquent on February 1, 1964. The total amount of the taxes amounted to about $27.00. Covington made the decision to foreclose his deed of trust lien on February 3rd because Burke had permitted the taxes to become delinquent. Covington did nothing to notify Burke that he had exercised his option and accelerated payment of the note, except to post notices. Covington purchased the property at the foreclosure sale for $1.00 per acre.

After the sale, Covington wrote a letter to one of Burke’s lawyers and informed him of the following facts:

“5. Upon the consummation of said sale Mr. Burke and Mr. Etgen still owed $603.47 at 10% interest under the terms of a note and Deed of Trust which they executed. This will advise my attorney, Frank C. Ashby, to proceed with suit for collection of said indebtedness.
6. By good and valid General Warranty Deed dated August 10, 1964, and properly recorded in the Deed Records, Reeves County, Texas, Jerry Covington passed title in good faith to all of the-surface rights only to the seven tracts-described in said Deed of Trust. In short, a good faith claimant of record now holds, title to said land.
7. The Courthouse in Reeves County is located on Courthouse Square, Pecos, Texas.”

The record shows that after the foreclosure Covington conveyed the property to Della Corporation. When asked if Della Corporation still owned the property, Cov-ington answered: "They still own half of it.” Covington offered to resell the property to Burke for $5,150.00.

The jury found that $5,150.00 was the reasonable fair market value of the property on the date of the foreclosure; that Covington foreclosed with malice and that $5,000.00 should be assessed against Cov-ington as punitive damages.

Appellant contends that he was authorized to accelerate payment of the note and foreclose because Burke permitted taxes on the property to become delinquent and he had no duty to notify Burke that he had exercised his option to accelerate payment. Appellee contends:

“To exercise an option under a deed of trust to accelerate maturity of the underlying note for failure to pay ad valorem taxes the mortgagee must, as a matter of law, present the note to the mortgagor and demand payment, and in absence of such presentment and demand, foreclosure of such deed of trust lien without notice is wrongful and illegal.”

We are inclined to believe that appellee’s contention is correct. Covington had a duty to notify Burke, in some way, that he had exercised his option to mature the balance of the note. In Parker v. Mazur, 13 S.W.2d 174, (Tex.Civ.App.1928, error dis.) the court said:

“It must be kept in view that the mere failure to pay the interest within 30 days would not of itself immediately mature the whole debt, but acceleration of maturity depended entirely upon the option and desire of the owner and holder of the notes. The debtor knew that there was default in payment of interest, but had no notice that the creditor would exercise his power of acceleration of the whole debt. The clause as to the maturity of the whole debt was not positive and self-executing, but depended for its vitality upon the will and desire of the owner and holder of the notes, and equity would demand notice of. such will and desire before demand should be made for the payment of the entire debt. * * A court of equity will scan very closely the enforcement of so hard and rigorous a contract as appears in this case.”

Also see Jernigan v. O’Brien, 303 S.W.2d 515, (C.C.A.1957, no writ history).

We find no merit in appellant’s contention that Burke should have attempted to regain title before seeking damages. John Hancock Mutual Life Insurance Company v. Howard, 85 S.W.2d 986, (C.C.A. 1935, writ ref.), does not support that contention because the property in the case at bar had passed into the hands of third parties. Covington exercised dominion and control over the property after the foreclosure and attempted to resell it to Burke. Since neither party was in actual physical possession of these small tracts of land, Covington’s conduct in exercising dominion and control over the property after foreclosure disturbed Burke’s possession.

We find no merit in Burke’s cross-point claiming exemplary damages found by the jury and it is overruled. A. L. Carter Lumber Co. v. Saide 140 Tex. 523, 168 S.W. 2d 629, (1943).

We have considered all points and find no merit in them. They are overruled.

The judgment is affirmed.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Jackie Freeman ANDERSON, Defendant, and United Bonding Insurance Company, a Corporation, Surety, Appellant. STATE of Missouri, Respondent, v. Martin Lee DAIGLE, Thomas Don Haskins, and John Phillip Parker, Defendants, and United Bonding Insurance Company, a Corporation, Surety, Appellant.
    Nos. 52166, 52167.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.

      Dan Bollow, Shelbyville, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   WELBORN, Commissioner.

This is an appeal from a judgment of forfeiture of bail bond of four defendants on which the appellant, United Bonding Insurance Company, was surety.

In July, 1965, Martin Lee Daigle, Thomas Don Haskins, John Phillip Parker and Jackie Freeman Anderson, each as principal, and United Bonding Company, as surety, executed four separate bail. bonds for $4,000 for the appearance of the principals in the Shelby County Magistrate Court to answer a charge of burglary in the second degree.

Daigle, Haskins and Parker failed to appear for their preliminary hearing and their bonds were ordered forfeited by the magistrate. The forfeiture was followed by a motion for judgment, which resulted in a judgment in the magistrate court on November 12, 1965 in favor of the state and against the principals and surety. The surety appealed to the circuit court. After a hearing, the circuit court affirmed the judgment of the magistrate court.

At the outset of our consideration of the appeal from the judgment involving these bonds, we note a jurisdictional question not raised by appellant. In those cases, the judgment was entered originally in the magistrate court. The circuit court’s jurisdiction on the appeal was derivative. If the magistrate court lacked jurisdiction to enter its judgment, the circuit court acquired no jurisdiction on the purported appeal. Hoover v. Abell, Mo.App., 231 S.W. 2d 217, 222-223 [7-10]; State Bank of Sugar Creek v. Anderson, 225 Mo.App. 118, 36 S.W.2d 138, 140 [2-4].

Magistrate courts are courts of limited jurisdiction. They possess only those powers expressly granted by statute. No presumption or inference may be invoked to enlarge this jurisdiction, and they cannot take powers by implication. Bauer v. Rutter, Mo.App., 256 S.W.2d 294, 295 [1].

§ 543.380, RSMo 1959, V.A.M.S., authorizes the magistrate court to enter judgment upon forfeited recognizances in misdemeanor cases. By § 544.330, when a person recognized in a felony fails to appear before a magistrate according to the condition of the recognizance, the magistrate is authorized to record the default. However, by that section the magistrate is not authorized to enter judgment upon the default. The magistrate is required to “certify the recognizance, with a record of such default, to the court having cognizance of the offense charged against the person so recognized, and the like proceedings shall be had thereon as upon breach of condition .of a recognizance for appearance before said court.”

Such procedure should have been followed in the case with respect to the default before the magistrate. The magistrate court had jurisdiction only to record the default, but not to enter judgment thereon. State v. Hoeffner, 63 Mo.App. 409; State v. Hoeffner, 44 Mo.App. 543.

In State v. Caldwell, 124 Mo. 509, 28 S.W. 4, it is stated that, “if [a] court possessed jurisdiction to take a recognizance, it follows, as night follows day, that it had the right to take such further steps as would render the recognizance effectual. The rule is universal in its operation that the grant of power or jurisdiction carries with it as inevitable incidents all matters necessary to crown the grant with ultimate ef-fectuation.” 28 S.W. l.c. 5. In view of the limited jurisdiction of the magistrate court and the express statutory direction of the action to be taken by that court in the event of default upon a recognizance in a felony case, the principle enumerated in State v. Caldwell, supra, is not applicable.

We also note that the motions in the magistrate court state, as their basis, Criminal Rule 32.12, V.A.M.R. That rule does appear to authorize the court in which the default occurs to enter judgment upon the security given for the appearance of the defendant. However, that rule cannot enlarge the jurisdiction of the magistrate court, which must depend upon legislative enactment. § 20, Art. V, Const, of Mo. 1945, V.A.M.S.

We, therefore, conclude that, as to the judgments involved in No. 52,167, the magistrate court lacked jurisdiction to enter them and that consequently the circuit court acquired no jurisdiction on the appeal. Such judgments are, therefore, void. The judgment affirming them must be reversed with directions to dismiss the respondent’s motion. Kansas City Sanitary Co. v. La-clede County, 307 Mo. 10, 269 S.W. 395, 397 [3],

Anderson’s default occurred in the circuit court. We, therefore, examine the assignments of error as they affect the judgment in Cause No. 52,166.

Anderson appeared for his preliminary hearing, but failed to appear at the first day of the next term of the circuit court, October 4, 1965, to answer an information filed against him. His bond was ordered forfeited and a motion for judgment upon it filed. This motion and the appeal from the magistrate court were heard as a consolidated action.

The answer of the surety alleged that Anderson was confined in the county jail at Sacramento, California; that the defendant was, by reason of his arrest elsewhere, prevented by state action from appearing; that the surety had made all reasonable steps to secure the presence of the defendant; that a detainer could be placed upon him so that he would not escape prosecution; that the failure of the defendant ten appear was not the fault of the surety and that the surety would bear the cost of returning the defendant; that justice would best be served by setting aside the forfeiture.

At the circuit court hearing, on March 15, 1966, Mr. Paul Gearheart, the surety’s general agent for Missouri and Kansas, and Mr. R. E. McDowell, Missouri agent for the company who executed the bonds in its behalf, testified in behalf of the surety.

Mr. Gearheart attempted to testify, based upon knowledge “through my company or my personal office records,” concerning the whereabouts of the principals. An objection that such testimony was hearsay was sustained. An offer of proof was made to the effect that the witness would testify, based upon “communication with his office and his office function [as] the manager of the bonding company in two states, that Anderson is confined in the penitentiary in the State of Oregon; * * Objection to the offer of proof was sustained. No objection is here made to the court’s ruling.

Mr. Gearheart testified that, by letter dated October 2, 1965, he had notified the prosecuting attorney of Shelby County of the whereabouts of the four defendants. The letter read in part:

“In regard to these criminal cases mentioned below I do not have their numbers, but their names are as follows: Jackie Anderson, John Parker, Martin Daigle, and Tom Hoskins. All of these defendants are incarcerated in other jurisdictions, and if I understood you right when I was there, you said that if the defendants were incarcerated in other jurisdictions, you would place a detainer and not foreit (sic) or at least you would not demand a judgment.
“In any event, I will give you the defendants’ locations so that you may place your detainer on them. When they are released from that jurisdiction, we will pay the expenses of returning them to your county for trial.
“Here are the names and places of each defendant :
“Jackie Anderson — Sacramento California — County Jail.
“Tom Hoskins — Sherman Texas — County Jail.
“John Parker — Arkadelphia Arkansas— County Jail.
“Martin Daigle — Pontiac Michigan— County Jail.
“If there is some other procedure that you wish me to follow, please advise and I will do whatever is necessary in regard to these cases.”

When the prosecuting attorney objected that the portion of the letter stating the whereabouts of the defendants was hearsay and that other portions were self-serving, the surety’s counsel stated that one purpose for offering the letter was to show diligence on the part of the surety. The court admitted the letter for such purpose, alone. No objection is here made to the court’s ruling.

Further on the issue of diligence, the witness testified that the surety’s general agent in New Orleans “put a stop [order] on [the defendants’] F.B.I. jackets.” The significance of this effort was not explained. The witness also testified that “inquiries” were placed “in a little magazine that goes out to all the bonding companies.” The witness could not recall the exact name of the publication, but said that it was a national magazine. The magazine itself was not produced.

Witness McDowell testified that he was the agent on a bond for Anderson in Clay County, Missouri, and that he had requested a “hold” be placed on Anderson through the sheriff of Clay County. The sheriff of Shelby County was also called as a witness by the surety. The sheriff testified that he had not "had an occasion to contact anyone regarding placing a ‘hold’ on [the defendants].”

Other evidence will be discussed in connection with some of the points raised by appellant here. No evidence was offered by the state.

A judgment was entered against the principal and surety for $4,000 on each of the four bonds. After the surety’s motion for new trial had been overruled in all cases, this appeal followed.

On this appeal, appellant objects to the trial court’s exclusion of three pieces of documentary evidence, which, it contends, were admissible as business records. We here consider only the one relating to Anderson. Witness Gearheart testified that he was in charge of the local records of the appellant which were kept by him in the regular course of his business at his office in Kansas City, Kansas. The appellant then sought, through Gearheart, to introduce into evidence a document taken from such records. The document, identified as a copy from the witness’s files, was described as a communication from the State of Oregon regarding Anderson, and also “regard” Daigle. In identifying the document, the witness stated: “[A]h, well, this doesn’t say who it is to.” The exhibit was a one-page Xerox copy. The paper contains no letterhead. On the left side, the following typewritten notations appear:

“Bobbie Ray Anderson Arr. 8-21-65 D.U.I.L. State # 27 Rel. 9-5-65 T.O.T. State of Oregon
“Bobbie Ray Anderson Arr. 8-23-65 No Opr. Lie. State #27 Rel 9-5-65 T.O.T. State of Oregon
“Martin L Daigle 9-1-65 Possession of Narcotics #27 Bound over to Circuit Ct. 10-7-65 Moore
“Martin L. Daigle Arr. 8-21-65 D&D #27 Trial 9-10-65 Judge E. Leib”
Below is what appears to be a rubber stamped notation:
“OAKLAND COUNTY SHERIFF’S DEPT. FRANK W. IRONS, SHERIFF 104 WAYNE STREET PONTIAC, MICH.”

The right side of the sheet is a photo copy of an envelope, bearing the return address “FRANK W. IRONS SHERIFF COUNTY OF OAKLAND PONTIAC MICHIGAN 48058.” The address on the envelope is “Wayne County Probation Dept. Recorders Court 1321 St. Antoine, Detroit, Mich. Attn. M. Chodak.”

On this appeal, the appellant asserts that the trial court erred in refusing to admit these documents into evidence, contending that they should have been admitted by virtue of the Uniform Business Records as Evidence Act. §§ 490.660-490.690, RSMo 1959, V.A.M.S.

The act did not authorize the reception of this document as evidence. The witness who sought to identify it stated only that the original was contained in the files of the surety. That identification wholly failed to qualify the document as admissible under the Business Records Act. The document obviously was not a record made in the regular course of the surety’s business. It was merely found in the surety’s files, having been prepared elsewhere. The Uniform Business Records as Evidence Act did not aid its admissibility.

Appellant’s next contention is that the state was estopped to enforce the forfeiture of the bond because the prosecuting attorney had told the surety he would not seek judgment on the bond if the defendant was confined in another jurisdiction. The evidence may not have warranted a finding of any agreement to such effect on the part of the prosecuting attorney. In any event, the fact remains that the surety offered no admissible evidence at the trial of an essential basis for the alleged estoppel, i. e., that the defendant was confined elsewhere. The letter from the surety to the prosecuting attorney, purporting to give the whereabouts of the defendants, was not admitted for proof of the truth of such statement. The offer of proof by way of oral testimony was excluded. Here, no effort has been made to show that the court’s ruling in either regard was erroneous. The objection to the court’s exclusion of tendered documentary evidence has been considered and found without merit. The result is that there was no evidence before the trial court from which it could find that the condition purportedly relied upon by the surety had occurred.

In connection with this matter, the appellant asserts as error the court’s rejection of a letter from the Shelby County prosecuting attorney to the surety in which the prosecuting attorney stated that he had been in error when he told the representative of the surety that, in his opinion, Texas authorities would not forfeit a bond of Anderson on which the appellant was surety, if Anderson was confined in Missouri at the time he was to appear in Texas. This letter, in fact, tends to confirm the idea, advanced in the prosecuting attorney’s cross-examination of the appellant’s witnesses, that any conversation with the prosecuting attorney was related to the surety’s desire to secure Anderson’s release in order to fulfill the obligation of the Texas bond, and that the matter of nonforfeiture related to what Texas officials might do. It certainly did not tend to prove the agreement allegedly relied upon by the surety that the prosecuting attorney would not enforce the Shelby County bonds. The letter was of no probative value insofar as the surety was concerned and its exclusion was not error as to it.

The final contention of the surety is that the circuit court abused its discretion in adjudging forfeiture. Relying on State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, the appellant states that it has been diligent in seeking the return of the defendant and that the state, as shown by its failure to place a detainer on the defendant, has been more interested in the bond forfeiture money than in the return of the defendant. Appellant contends that, in these circumstances, the exercise of sound judicial discretion requires the setting aside of the forfeiture, “even assuming appellant did not introduce evidence to establish the defendants were elsewhere confined.” Clearly, there could be no abuse of judicial discretion in entering judgment of forfeiture where the surety has failed to produce evidence which would authorize a finding that the nonappearance of the defendant was due to matters beyond the control of the surety.

The judgment in No. 52,166 is affirmed. The judgment in No. 52,167 is reversed with directions to dismiss respondent’s motion.

HOUSER, and HIGGINS, CC, concur.

PER CURIAM.

The foregoing opinion by WELBORN, G, is adopted as the opinion of the Court.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    E. O. DORSCH ELECTRIC CO., a Corporation, Appellant, v. PLAZA CONSTRUCTION CO., Inc., et al., Respondents.
    No. 52411.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.

      Cox, Cox, Cox & Moffitt, William A. Moffitt, Jr., Robert C. Brinkman, St. Louis, for plaintiff-appellant.
    Peper, Martin, Jensen, Maichel & Het-lage, Richard A. Hetlage, Robert O. Het-lage, Greensfelder, Hemker, Wiese, Gale & Chappelow, Mark R. Gale, St. Louis, for respondents.
   STOCKARD, Commissioner.

By its petition plaintiff sought damages in the amount of $21,086.30 for negligence. The trial court entered summary judgment for defendants and plaintiff has appealed.

Plaintiff alleged in its petition that as a subcontractor it had “installed under a contract with the general contractor, various kinds of electrical material” in buildings known as the St. Louis Plaza Project in the City of St. Louis, and that following such installation and “while defendants were engaged in erecting and constructing the brick and concrete on said buildings, said defendants, their agents and servants, negligently and carelessly damaged and destroyed certain parts of the electrical work and material which had been previously installed in said buildings by plaintiff, causing said work, labor and material to be unfit for use, which required plaintiff to and it did replace the same, all to the damage of plaintiff in the sum of $21,086.30.”

In answer to a request for admissions pursuant to Civil Rule 59.01, V.A.M.R., plaintiff admitted that “the electrical material originally installed and the work and labor originally required to install the same, was installed under one or more” of four contracts, attached to the request for admissions, and subsequently identified, but it further stated that after the execution of the contracts they were “changed and modified by agreement of the parties.” No explanation was made as to what the asserted changes and modifications consisted.

Thereafter, defendants filed a motion for summary judgment on the theory that pursuant to the provisions of the applicable contracts plaintiff did not own and had no interest in or duty to restore any electrical material or work allegedly damaged by the negligence of defendants, that plaintiff had a contract right to full payment for any repair or replacement work done by it at the request of the general contractor, and that for these reasons as a matter of law plaintiff did not and could not sustain any damage as the result of the alleged negligence. Defendants filed an affidavit in support of their motion for summary judgment to which were attached the four subcontracts referred to in plaintiff’s answer to the request for admissions, and to which were also attached four groups of instruments, three instruments in each group applicable to each of the subcontracts. Each group of instruments pertain to the construction of a separate project, and the corresponding instruments in each group are similar. We shall refer to the terms of but one subcontract and the terms of the three instruments referred to therein.

Instrument “B” was a “cost plus” construction contract between First Plaza Redevelopment Corporation as “Owner” and Plaza Construction, Inc. as “Contractor” for “all the materials and * * * work within the property lines, shown on the drawings and specifications.” Instrument “C” was a deed of trust between the Owner and Manufacturers Trust Company with the Mercantile Trust Company being named as Trustee. Instrument “A — 1” was an agreement between Owner and Paul Tish-man General Contractor, Inc., and Fruin-Colnon Contracting Company, operating as a joint venture and referred to as “Agents,” wherein it was provided that Agents were in effect to represent the Contractor in the performance of the contract with authority to negotiate subcontracts. Instrument “A” was a subcontract between Agents and plaintiff wherein it was provided that plaintiff was to perform certain electrical work provided for in the contract between Owner and Contractor, and was one of the contracts referred to in the request for admissions and plaintiff’s answer thereto. All of these instruments were attached to and incorporated as a part of defendants’ motion for summary judgment, and although plaintiff stated in its answer to the request for an admission that Instrument “A” had been “changed and modified by agreements of the parties,” at the hearing on the application for summary judgment plaintiff filed no affidavit and offered no proof to the effect that the terms of any of the instruments attached to the application for summary judgment were not as therein set forth.

The trial court found that the “terms of the contract are not in dispute,” and further found the facts as follows: “The contract gave the defendants the right to occupy any portion of the work ‘which has been either partially or fully completed’ by the subcontractor, and it further provided ‘The subcontractor shall not be responsible for any damage thereto that is due to or caused by the negligence of the contractor or agents during such period of use.’ The contract makes full provisions for any work required to be done other than that specifically set out therein. In view of the above, it would appear that under the pleadings, exhibits and affidavits, there is no issue presented, and that the defendant^] [are] entitled to judgment.”

On this appeal plaintiff asserts that the trial court erred in sustaining defendants’ motion for summary judgment because “there were, under the pleadings and affidavits, many fact issues to be determined.” Defendants, on the other hand, contend that summary judgment was properly entered “because the written contracts between plaintiff and defendants establish conclusively that plaintiff did not own and had no interest in or duty to restore the work allegedly damaged by the negligence of defendants, that plaintiff had a contract right to full payment for any repair or replacement work done by it, and that plaintiff did not and could not sustain any damage by reason of the alleged negligence of defendants.”

Prior to considering the applicable provisions of the contracts, we shall set forth briefly the basic rules relating to entering summary judgment.

Summary judgment is authorized where, but only where, the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Civil Rule 74.-04(c), V.A.M.R. In addition to the above, it is further provided that “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Civil Rule 74.04(h), V.A. M.R. “As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure,” Cooper v. Finke, Mo., 376 S.W.2d 225, 229, and the appellate court, as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered. Anderson v. Steurer, Mo., 391 S.W.2d 839, 842.

In this case the motion for summary judgment is based upon the pleadings, which incorporated the contract documents by reference, and the admissions of plaintiff in its answer to the request for admissions. Plaintiff filed no affidavits in opposition to the motion for summary judgment, a circumstance hardly understandable in view of its assertion in its answer to the request for an admission that the subcontracts to which it was a party had been “changed and modified by agreements of the parties.” Civil Rule 74.04(e) provides in part that “When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” The failure of plaintiff to file any counteraffidavit or present any proof in respect to the motion for summary judgment forces us to accept as true, for the purposes of this appeal, that there is no factual issue concerning the terms of the contracts attached to the motion for summary- judgment. However, this omission on -the part of plaintiff does not necessarily require that judgment be entered against it. As stated in Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310, “Rule 74.04 does not ‘require the grant of summary judgment in a case where such judgment is not proper even though the facts be taken as in the moving party’s affidavit. The court may deny the motion if for any reason summary judgment may be inappropriate, even though the opposite party has not submitted an affidavit.’ ” One reason summary judgment may be inappropriate under the circumstances of a particular case is that the moving party may not have shown by “unassailable proof” that as a matter of law it was entitled thereto. Defendants’ position in respect to the motion for summary judgment is that plaintiff was required by the subcontract to provide and install the electrical material therein called for, that once installed the material became the property of the Owner, and that there was no contractual duty on plaintiff to install the material a second time if the installed material was subsequently damaged by reason of the negligence of defendants. For this reason, defendants contend, negligent damage by them of previously installed electrical material would not result in plaintiff having a cause of action against them. Accepting, as we do, the resolved fact issue as to terms and provisions of the contracts, defendants were entitled to judgment as a matter of law only if their interpretation of the contracts is also, as a matter of law, unassailable. To this end we shall examine the terms of the contracts.

Instrument A, consisting of the subcontract between plaintiff and Agents, provided that plaintiff should provide and furnish all work, materials, services, tools, labor, equipment and supplies necessary or required to perform and complete the electrical work required for a described building in the construction of St. Louis Plaza Project in accordance with (a) the terms and provisions of the contracts between the Owner and Contractor dated October 14, 1958 (Instrument B), and the Contractor and the Agents dated October 14, 1958 (Instrument A-l), and (b) the terms and provisions of the escrow and disbursing agreement between Contractor, Owner and Title Insurance Company of St. Louis, and (c) all plans, drawings, specifications, general and special conditions, and addenda relating to the doing of specified work. It was further provided that these instruments, identified as “Contract Documents,” should be considered part of the subcontract, and that the “Subcontractor agrees to be bound to the Contractor and Agents by the terms of the Contract Documents insofar as each and every part thereof is applicable to this Subcontract,” and also that “The Subcontractor herewith assumes towards the Contractor and the Agents any and all obligations and responsibilities applicable to the Subcontractor’s work which by the foregoing Contract Documents the Contractor assumes towards the Owner, the Lender (mortgagee) the Federal Housing Administration or Commissioner, and the Title Insurance Company of St. Louis.”

Paragraph 17 of Instrument A-l (the contract between Contractor and Agents) provided that “The title of all materials for which Owner is required to pay and of all work either completed or in the course of construction shall be in Owner.”

Article 5 of Instrument B (the contract between Owner and Contractor) provided that it was understood by the Contractor that the work to be done was to be financed by a building loan secured by a mortgage insured by the Federal Housing Commissioner, the terms of which were set forth in a Building Loan Agreement between the Owner as Borrower and Manufacturers Trust Company as Lender, and it was provided in Article 4 that “Applications for payment under this Contract are to be made by the Contractor to the Owner, * * * on or about the first day of each month after the commencement of work hereunder, for payment for work done during the proceeding month or part thereof.”

In addition to the above provisions which were quoted by defendants in their motion for summary judgment, it was further provided in Article 4 that:

“The sum to which the Contractor shall be entitled upon any such payment shall be the total of the purchase price of uninstalled materials stored on the mortgaged property in a manner acceptable to the [Federal Housing] Commissioner plus the cost of the portions of the work acceptably completed, as approved by the Commissioner, computed in accordance with the amounts assigned to the several items in the Payment Breakdown, * * * less 10% and less prior advances. * * *.
“Upon completion of the improvements, * * * the balance due the Contractor hereunder shall be payable to the Contractor upon the expiration of 30 days from the date of final completion and acceptance of the project by the Owner with the approval of the Commissioner and the Lender: * *

In Instrument C it was provided that the deed of trust covered, among other items, “all building materials and equipment now hereafter delivered to said premises and intended to be installed therein,” and “all buildings and improvements of every kind and description now or hereafter erected or placed thereon, and all fixtures, including but not limited to all gas and electric fixtures * * *.”

Defendants quote from Section 3 of the subcontract, but before we mention those provisions we shall set out certain provisions of Section 2 of that contract. It is there provided that if plaintiff as subcontractor “shall fulfill this Subcontract to the satisfaction of the Contractor, Agents, Owner and Lender, the Contractor agrees to pay” a specified sum; that partial payments will be made to the subcontractor each month “equal to 90 percent of the value of work and materials incorporated in the construction and/or materials delivered to the site of the work by the Subcontractor * * * but such partial payments shall not become due to the Subcontractor until 10 days after the Contractor receives payments for such work and materials from the Owner. Upon complete performance of this Subcontract by the Subcontractor and final approval and acceptance of Subcontractor’s work and materials in accordance with the Contract Documents the Contractor will make final payment to the Subcontractor of the balance due to him under this Subcontract within 30 days after full payment for such work and materials has been received by the Contractor from the Owner. No partial payment to the Subcontractor shall operate as approval and acceptance of work done or materials furnished under this Subcontract.”

The provisions of Section 3 of the subcontract relied on by defendants include the following: “The Contractor may at any time by written order of the Agents' authorized representative, * * * make changes in, additions to and omissions from the work to be performed and materials to be furnished under this Subcontract, and the Subcontractor shall promptly proceed with the performance of this Subcontract as so changed. Any increase or decrease in the Subcontract price resulting from such changes shall be agreed upon in writing by the parties hereto. * * * Should the Agents, during the life of this contract, require the Subcontractor to perform any additional work at the building upon the basis of the cost of labor and materials, the Subcontractor agrees to and shall execute such extra work, upon receipt of written order therefor and the Contractor will pay the Subcontractor therefor” according to a schedule therein set out. “In the event that the Subcontractor performs any additional work upon the basis of labor and materials as hereinbefore set forth, it agrees to and shall furnish each day to the representatives of the Agents” certain payroll and cost records.

Section 7 provided that “Whenever it may be useful or necessary to the Agents to do so, the Agents shall be permitted to occupy and/or use any portion of the work which has been either partially or fully completed by the Subcontractor before final inspection and acceptance thereof by the Agents and in accordance with the Contract Documents, but such use and/or occupation shall not relieve the Subcontractor of his guarantee of said work and materials nor of his obligation to make good at his own expense any defect in materials and workmanship which may occur or develop prior to Contractor’s and Agents’ release from responsibility under the Contract Documents. Provided, however, the Subcontractor shall not be responsible for any damage thereto that is due to or caused by the negligence of the Contractor or Agents during such period of use.”'

Section 8 provided that it was understood and agreed that the work provided for in this subcontract constitutes only a part of the work being performed for the Owner, and that “The Subcontractor, therefore, agrees to perform the work called for in the agreement in such manner that he will not injure or damage any other work performed by the Contractor, Agents or any other subcontractor, and further agrees to pay the Contractor or Agents for any damage that may be caused to such other work by the Subcontractor or by his Agents or employees.”

Although this is an action.for negligence, the determinative issue as to the correctness of entering summary judgment for defendants requires the construction of the terms of the contract documents. It was said in Cure v. City of Jefferson, supra, at p. 310, that “A motion for summary judgment, premised upon an interpretation considering only the words of the contract, may be a proper procedure in the case of a contract, the meaning of which is so apparent that it may be gleaned from the four corners of the instrument itself. * * * However, the proper discharge of the judicial function in a case in which the parties to an agreement disagree as to its meaning and effect ordinarily requires something further than a mere examination and consideration of words employed in the written contract.”

In this case plaintiff has alleged that after it installed electrical material, negligent acts of defendants required that it install them a second time. Absent the contract provisions it is clear that plaintiff would have a cause of action for that negligence. But do the contract provisions, as a matter of law, prevent recovery by plaintiff for the alleged negligence?

Defendants place reliance on several provisions of the Contract Documents, particularly paragraph 17 of Instrument A-l that “title of all materials for which Owner is required to pay and of all work either completed or in the course of construction shall be in the ownerthe provision in the subcontract that the Agents could occupy and use any portion of the work, either partially or fully completed, before final inspection and approval thereof; and the provision that plaintiff shall not be responsible for any damage thereto, that is, damage to the “portion of the work,” due to or caused by the negligence of the Contractor or Agents during such period of use. Also, it is apparently defendants’ contention that if material installed by plaintiff was negligently damaged by them, plaintiff would be entitled to payment therefor even though it had not been inspected and approved. This result is not clear from the terms of the Contract Documents. At least it is arguable, and it cannot be said that such an interpretation notwithstanding custom and usage is compelled by the language used. Acceptable performance entitling plaintiff to full payment is conditioned on “final approval and acceptance of Subcontractor’s work and materials.” It also appears that defendants contend that if plaintiff found it necessary to install certain material a second time in order to obtain “final approval and acceptance” that this constituted “changes in” or “additions to” the work to be performed and materials furnished pursuant to the subcontract. We cannot agree that this construction is compelled. “Changes” and “additions” imply, or at least it could be argued that they imply, something other than replacing the material negligently damaged in order to obtain final approval and acceptance and fully perform the contract. As to the provision pertaining to title, it is provided that title of property “for which the Owner is required to pay” is in Owner, but full payment apparently is not required until there has been “final approval and acceptance.” These provisions are subject to interpretation depending upon custom, usage, the interpretation of the parties, and possibly other matters.

We do not find that the contract documents are so clear and unequivocal in their meaning that they necessarily, as a matter of law, preclude plaintiff’s cause of action for damages for negligence. We express no opinion on the proper interpretation of the contract documents as applied to plaintiff’s claim. That question “should be resolved only upon an interpretation of the contract in the light of the surrounding circumstances, applicable customs and usages, the parties’ own interpretation of the contract and other evidence bearing on the question of its meaning.” Cure v. City of Jefferson, supra. We are of the opinion, however, that the motion for summary judgment in the case did not demonstrate that defendants were, as a matter of law, entitled to judgment.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    Priscilla TODD, Appellant, v. Leo PRESLEY, Respondent.
    No. 52231.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.

      Frieze & Crandall, Carthage, for appellant.
    Edward G. Farmer, Jr., James E. Brown, Joplin, for respondent.
   STOCKARD, Commissioner.

In this personal injury action for damages in the amount of $20,278.25, the jury verdict was for defendant and plaintiff has appealed.

Plaintiff was a front seat passenger in an automobile operated by Mr. Ernest Evans, her brother-in-law. Mr. Evans traveled eastward on what was referred to as the Stockyard Road to its intersection with Range Line Road, a north-south four-lane through highway. He stopped his automobile at the intersection and waited for a southbound automobile to pass. He then entered the intersection and proceeded northeastward and turned left onto the outer or east lane of the two northbound traffic lanes, although at the time the inner or west lane was open. After the automobile had traveled northward 75 to 100 feet on Range Line Road, according to plaintiff’s evidence, it was struck in the rear by defendant’s truck which was and had been for some distance traveling northward in the east traffic lane. Plaintiff’s only evidence as to the speed of defendant’s truck was that it was going fast. The truck driver testified that his speed was 45 miles an hour.

Plaintiff first contends that the trial court erred in refusing to give her requested instruction submitting what is called the rear-end collision doctrine. This is the rule of law which recognizes that “if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, 362; Witherspoon v. Guttierez, Mo., 327 S.W.2d 874; Withers v. McCluey & Pettit, Mo., 337 S.W.2d 66; Doggendorf v. St. Louis Public Service Company, Mo.App., 333 S.W.2d 302; Snyder v. Hedges, Mo.App., 381 S.W. 2d 376.

In order for plaintiff to have been entitled to an instruction submitting the rear-end collision doctrine as a basis for recovery, it was necessary that the evidence establish that the front vehicle was “in a portion of the highway where [the operator] should have it or [was] entitled to have it in view of the course in which he [was] proceeding,” Hughes v. St. Louis Public Service Co., supra, and that the defendant’s vehicle, which was traveling behind plaintiff’s vehicle and in the same direction, overtook and ran into the rear of the one ahead. See Witherspoon v. Guttierez, supra, and Rosenfeld v. Peters, Mo., 327 S.W.2d 264. Section 300.215, RSMo. Cum. Supp. 1965, regulating the manner of turning left into a four-lane highway, was not in effect at the time of the collision in this case, but Section 304.021 RSMo 1959, V.A.M.S., required Mr. Evans to yield to a vehicle on the through highway which was approaching so closely to constitute an immediate hazard. The evidence clearly established that Mr. Evans drove the automobile in which plaintiff was riding eastwardly and directly into the path of the northbound truck in violation of Section 304.021 because the truck was on a through highway and was so close and was proceeding at such a speed that a collision was inevitable. This is the precise situation referred to in Witherspoon v. Guttierez, supra, which discussed in detail the specific problem we have here concerning the application of the rear-end collision doctrine. In the Witherspoon case the front vehicle in which the plaintiff was riding did not turn onto the highway in front of defendant’s vehicle, but in discussing the factual situations to which the doctrine was applicable, this court said: “Now if the Nash [front vehicle] * * * had been traveling eastwardly on Blue River Road and had turned left abruptly from the side road onto No. 71 and into defendant’s northerly path immediately before the collision (circumstances wholly unlike the typical ‘clear and simple situation of one vehicle being operated for a considerable distance behind another and overtaking it’) a rear-end collision instruction would have been inappropriate.” While this statement is dicta to the result reached in that case, we are in complete agreement with it. The facts of this case do not present the “clear and simple situation of one vehicle being operated for a considerable distance behind another and overtaking it,”' Rosenfeld v. Peters, supra, but presents the situation of an intersectional collision. The collision did not occur because the following vehicle overtook the vehicle ahead, but it occurred because the Evans vehicle was driven east-wardly directly into the path of the northbound truck when it was so close that it constituted an immediate hazard, and if defendant’s driver was negligent it was not negligence based on the rear-end collision doctrine. This rule of law was never intended to apply to a situation which is in fact an intersectional collision, but by reason of last second evasive maneuvering of one or the other of the vehicles one is struck in the rear by the other. This case was not submissible under the rear-end collision doctrine. For a related discussion, see Snyder v. Hedges, Mo.App., 381 S.W.2d 376.

Plaintiff next contends that the trial court erred in refusing her requested instruction submitting humanitarian negligence in failing to slacken speed or swerve or sound a warning. Certain additional facts are necessary.

When Mr. Evans “started to move his car” onto Range Line Road after waiting for the southbound car to pass, plaintiff saw defendant’s truck “just over the tracks” to the south. The exact distance is not shown, but Mrs. Evans who was plaintiff’s sister and also a front seat passenger, said the truck was then about “three blocks” away. After the Evans automobile had moved eastward onto the highway and about the time that Mr. Evans started to turn to the left, defendant’s truck was “a block or a little more” away, and Mrs. Evans estimated a block to be 300 feet in length. At that time the truck “had got so close” that Mrs. Evans said, “Oh, Ernest, hurry, that truck is coming so fast.” The only evidence of plaintiff as to the speed of the Evans automobile as it entered the northbound lane was the testimony of Mrs. Evans that it was proceeding at “just ordinary speed that you would put out to cross,” which she estimated to be twenty or twenty-five miles an hour, or “something like that.” Defendant’s driver testified that it was proceeding at five to ten miles an hour, and he testified that he was operating his trailer-truck north on Range Line Road in the outer or east lane at 45 miles an hour. He further testified that he saw the Evans automobile while it was stopped at the intersection, and when his truck was about 200 to 250 feet from the Evans car it started to move from the stop sign and then proceeded northeastward at an angle. When his truck was about 20 to 30 feet from the Evans automobile he saw that it “was coming into [his] lane,” and he then applied his brakes but struck the right rear of the automobile while it was still going northeast and before it was completely in the east lane. The left front of the truck and the right rear of the Evans automobile were damaged. The driver testified that he could pull out to pass a car ahead of him when he was ten feet behind it if “it had been in one lane all the time,” but that he could not have pulled out to pass in this case.

The first and basic requirement of liability under the humanitarian rule is what previously has been denominated a position of imminent peril, but which is now referred to in the new jury instructions as a position of immediate danger of being injured. The change in terminology has not changed the substance of this requirement. It is only when this position arises or exists that the humanitarian rule seizes upon the then existing situation, in effect "blotting out primary or antecedent negligence,” Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930, and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury. Davis v. Quality Oil Company, Mo., 353 S.W.2d 670, 673. “The imminent peril [now immediate danger of being injured] referred to in the humanitarian rule is that position of danger to the plaintiff, whether or not plaintiff was negligent in getting there, in which by reason of the then existing circumstances, if unchanged, injury to him is reasonably certain and not a mere possibility contingent on some other occurrence. The courts have said that ‘The peril truly must be imminent — that is, certain, immediate, and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril.’” Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109. What constitutes a position of immediate danger of being injured varies according to the circumstances. “In the absence of obliviousness, the position or danger zone of [immediate danger of being injured] of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop [or, in this case, turn] short of it.” Lotta v. Kansas City Public Service Co., 342 Mo. 743, 117 S.W.2d 296, 300. But, when the plaintiff is oblivious, it has been said that the zone of immediate danger of being injured is widened to that point where it was or should have been reasonably apparent to the defendant in the exercise of the required degree of care that the plaintiff was oblivious of the approach of defendant’s moving vehicle and was intent on continuing across its path. Wabash Railroad Company v. Dannen Mills, Inc., 365 Mo. 827, 288 S.W.2d 926, 929. See also Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 924, and the cases there cited. In her brief plaintiff makes no contention that either she or Mr. Evans was oblivious, and such contention would be without merit. Plaintiff’s evidence establishes, without contradiction, that when defendant’s truck was “a block or a little more away” and when Mr. Evans “started to turn to the left” his wife warned him of the presence of the truck and that it was “coming so fast,” and that plaintiff heard that warning. However, whether or not Mr. Evans or plaintiff was oblivious, plaintiff did not enter into a position of immediate danger of being injured until it was or should have been reasonably apparent to defendant’s driver in the exercise of the highest degree of care that Mr. Evans was intent on crossing the inner or westerly northbound lane, which was free of traffic, and was intent upon entering the easterly or outer lane and into the truck’s path. This did not occur under the evidence in this case until the truck, traveling 45 miles an hour or approximately 66 feet per second, was 20 to 30 feet from the Evans automobile. There is no evidence from which it could be found that thereafter any action could have been taken by defendant’s driver with safety to himself in attempting to slacken speed, swerve or sound a warning which could have prevented the collision.

Plaintiff’s only argument in her brief in support of her contention that the evidence authorized a humanitarian submission is that defendant’s driver “saw the automobile in which plaintiff was riding for a distance of well over one-quarter of mile,” and he “saw the car as it was stopped just west of Range Line Road and that he saw it come onto the highway thereafter,” and although the road had two northbound traffic lanes and he was in the outside lane “he did nothing in the way of taking evasive action until the front of his truck was something like 20 to 30 feet from the automobile in which plaintiff was riding.” This may demonstrate primary negligence on the part of defendant’s driver, which was submitted to the jury and by it resolved against plaintiff, but it does not, under the facts of this case demonstrate humanitarian negligence. It is extremely important to recognize and keep in mind the basic difference between primary negligence and humanitarian negligence, and that “not every state of facts resulting in injuries from moving objects gives rise to * * * a cause of action” under the humanitarian rule. Smith v. Siedhoff, Mo., 209 S.W.2d 233, 236.

Plaintiff next asserts error resulted in the trial court giving at defendant’s request an instruction on right of way which followed MAI No. 14.05, because, as stated in her motion for new trial, (1) it “was not authorized under the evidence of this case (2) it “improperly limited and restricted the plaintiff’s right of recovery against the defendant under the circumstances and evidence surrounding the injuries received by plaintiff;” and (3) it “constituted an abstract and unauthorized declaration of the law, it was not justified under the testimony in this case, and was prejudicial and harmful to the rights of the plaintiff.” In her brief she also asserts that this instruction was erroneous because she was “entitled to submit her claim * * * under the humanitarian doctrine.”

Almost all of the argument in plaintiff’s brief under this point is directed to the contention that an instruction on right of way is not proper in a case submitted under the humanitarian doctrine, an issue we shall not discuss because we have determined that the evidence did not authorize a humanitarian submission. Other than on the basis that she claims to have had a humanitarian submission, she makes no effort either in the motion for new trial or in her brief (point or argument), to demonstrate how or in what manner the instruction “limited and restricted” her right of recovery, was “prejudicial and harmful” to her rights, or constituted an “unauthorized declaration of the law.” We need not consider further these abstract assertions. She does argue that the instruction was not authorized under the evidence, but the argument presented is that “Under plaintiff’s testimony, in the present proceeding, the testimony of both plaintiff and her sister, Mrs. Ardene Evans, was that defendant’s truck was south of the railroad crossing on Range Line Road, well over 1,000 feet away from the automobile in which plaintiff was riding, when the automobile in which plaintiff was riding moved from a stopped position onto Range Line, turned north, and was.thereafter struck from the rear by defendant’s truck.” We do not agree entirely with this statement of plaintiff’s evidence, but accepting it for the purposes of this discussion, it ignores entirely the previously mentioned evidence offered by defendant which clearly authorized the instruction. The court did not err in giving MAI No. 14.05 on right of way.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

EAGER, P. J., FINCH and DONNELLY, JJ., and STUBBS, Special Judge, concur.