author: GRISSOM, Chief Justice.

text:
    Mary Lee RODDY et al., Appellants, v. William A. GRAHAM, Sr., et al., Appellees.
    No. 3948.
    Court of Civil Appeals of Texas. Eastland.
    May 7, 1965.
    Rehearing Denied May 28, 1965.
    Key, Carr & Clark, William C. Clark, Lubbock, for appellants.
    Scarborough, Black, Tarpley & Scarborough, Beverly Tarpley, Abilene, for ap-pellees.
   GRISSOM, Chief Justice.

In January, 1962, Mrs. Annie Graham had a quarrel with two of her daughters, Mary Lee Roddy and Rose Grace Doak, over a business transaction and law suit between Mrs. Roddy and her brother Bill. Mrs. Graham told them then that she was going to give everything she had to Bill. On April 11, 1962, Mrs. Graham executed a will in which she divided her estate into sixths. She gave one sixth to a son of a deceased son and one sixth to each of three of the five surviving children. Mary Lee Roddy and Rose Grace Doak were given only $1.00 each. Mrs. Graham left the remaining two sixths of her estate in trust for the benefit of the children of Thomas A. Graham, the youngest child, who was about nine years younger than the child next to him. Mrs. Graham died on December 11, 1963. She had then been married to W. A. Graham for more than fifty seven years. Her husband, a sister and her youngest daughter, Annie Lou Donica, were appointed independent executors and trustees. They offered the will for probate. It was contested by Mrs. Roddy and Mrs. Doak on the grounds of lack of testamentary capacity and the exercise of undue influence by her husband and her daughter, Annie Lou Donica. Upon a trial de novo in the District Court, a jury found that Mrs. Graham executed the will as the result of the undue influence of W. A. Graham and Annie Lou Donica. The court rendered judgment, notwithstanding such findings of undue influence, probating the will. Contestants have appealed.

In various ways, contestants contend the court erred in holding there was no evidence to support the findings that execution of said will by Mrs. Annie Graham was caused by the exercise of undue influence by either W. A. Graham or Annie Lou Donica. They point out evidence that the attorney who wrote the will had never met Mrs. Graham prior to the time she executed it; that all directions for its preparation were given to the attorney by Mr. Graham; that when Mrs. Graham came with her husband to the attorney’s office to execute the will it had already been written; that she was in a weakened physical condition; that before Mrs. Graham signed the will she merely requested the lawyer to read it to her; that he read the will to her and her only remark was “that’s fine”, whereupon she signed it in the presence of the lawyer and his secretary as witnesses; that Mrs. Roddy frequently visited her mother over the years; that after Mrs. Graham became sick Mrs. Donica visited more often; that Mrs. Graham had weak spells and blackout spells as early as 1961; that in the spring of 1962, she had a high fever and for a few days could not speak plainly; that after the quarrel between Mrs. Graham and contestants and after Mrs. Graham had excluded them as beneficiaries of her will she and her husband made a gift of minerals to all the children and grandchildren, including Mrs. Roddy and Mrs. Doak; that Annie Lou Donica first learned in January, 1962, that Mrs. Graham intended making a will disinheriting Mrs. Roddy and Mrs. Doak; that Mrs. Graham and Annie Lou discussed that matter several times and Mrs. Donica did not discourage her mother from disinheriting her two sisters and that, although oil had been discovered on the Graham land, Mrs. Graham was a little reluctant to give the minerals to the children and grandchildren because she feared that if they had a long sickess their money might be insufficient and that she had difficulty understanding the nature of oil interests and realizing how “well off” she was.

Appellees present counter points to the effect that the court correctly held there was no evidence to support the findings that the will was the product of the undue influence of either testatrix’ husband or daughter. They say appellants fail to point out evidence which, viewed in the light most favorable to them, supports such findings and that it does not exist. They point out that exclusion of appellants as beneficiaries under the will did not benefit either Mr. Graham or Mrs. Donica and that the only persons benefited thereby were the seven minor children of Thomas Graham. The record shows that, although well educated, Thomas is not a financial success; that he had his wife and seven minor children reside in a house supplied by his parents and immediately adjoining them; that they have been largely supported by the parents; that, apparently, if said children, who appear to be much loved by the grandparents and all members of the family, are to be educated that their education must be paid for by some one else and that this was a reason that two sixths of testatrix’ estate was placed in trust for their benefit. It is undisputed that shortly before execution of the will there was a violent argument between Mrs. Graham and contestants; that Mrs. Roddy had sued her brother, Bill, and had obtained a judgment against him for land and money; that Mrs. Doak attended the trial and “sided with” Mrs. Roddy in the matter; that Mrs. Graham took up for Bill, resented their action and accused Mrs. Roddy of being interested in nothing but money. Mrs. Doak testified there was a violent quarrel “on her mother’s part”; that her mother became highly excited; that it was the most terrible experience of her life; that when Mrs. Doak arrived her mother was saying a lot of terrible untrue things; that she was furious because Bill had been sued by Mrs. Roddy, because Mrs. Doak attended the trial with Mrs. Roddy; because Mrs. Thomas Graham had told testatrix that Mrs. Roddy had testified to something derogatory to her; that on the next morning Mrs. Doak and Mrs. Roddy were about to leave and were in a separate room talking to their father; that Mrs. Roddy had not known when she went into the New Mexico land deal with Bill that Bill owed her father a lot of money; that she asked her father how much Bill owed him; that Mrs. Graham was in another room and nobody knew she was listening ; that she rushed into the room where Mrs. Doak, Mrs. Roddy and Mr. Graham were talking; that Mrs. Graham was screaming, was “beside herself”, and said she would like to slap them; that Mrs. Roddy just drew back and said, “I defy you”; that Mrs. Graham screamed that “all we came around there for was to get money;” that Mrs. Graham followed Mrs. Doak and Mrs. Roddy to the door screaming that “she was going to take her half of everything she and Daddy had and give it to Bill;” that Mrs. Roddy told her mother to go ahead and do that but that she didn’t tell her mother, as other witnesses testified, that she despised her. Mrs. Doak testified that her mother was highly emotional and upset; that she had been like that all of Mrs. Doak’s life. Mrs. Doak testified that about three days after her mother’s funeral her father told her that her mother had left Mrs. Doak and Mrs. Roddy out of her will and had given their part to Tom’s children and that their father said “I got her to do that, because I was afraid that she would have — that Bill would have her sign something worse, and I was afraid that she was going to give Bill a lot of money.” Mrs. Roddy testified that Mrs. Doak’s testimony with reference to the quarrel was correct; that she didn’t know whether or or not she told her mother that she didn’t want her money.

It is undisputed that Mrs. Graham had a strong will and was not easily influenced. The only evidence with reference to Mrs. Donica exercising influence on her mother was to the effect that when Mrs. Donica came to see her mother she tried to “boss” her mother about taking care of herself, telling her not to work and to rest more, and that Mrs. Graham resented it, and that she and her mother talked about contestants being excluded as beneficiaries of Mrs. Graham’s will and that Mrs. Donica did not discourage it. The only testimony with reference to Mr. Graham’s action that could be seriously considered on the question of undue influence was that wherein he was quoted as saying that he got his wife “to do that” because he was afraid Bill would get her to do something worse. The necessary interpretation of the record relative to this matter is that Mrs. Graham was determined to exclude contestants as beneficiaries and that her husband thought it was better to leave that part of her money for the education of Tom’s children than to give it to Bill.

Under the circumstances, we cannot say that the will made an unnatural disposition of the property. There was a reasonable basis for the exclusion of contestants and the inclusion of Tom’s children. Curry v. Curry, 153 Tex. 421, 270 S.W.2d 208, 213; Lindley v. Lindley, (Sup.Ct.), 384 S.W.2d 676, 682.

In Curry v. Curry it was held that the fact that the beneficiary of a deed selected, advised and paid the attorney who wrote it and secured the services of the notary and witnesses would not support a conclusion that the deed was a product of undue influence. What was said in that case concerning the testimony relative to undue influence is applicable here, to-wit:

“ * * * there is absolutely no intimation in the testimony of either witness of any force, intimidation, duress, excessive importunity, fraud, or other undue influence used or practiced by the defendant to overcome or subvert the will of the grantor and induce the execution of the deed against his wish. It has been held that one may request or even importune and entreat another to execute a favorable dispositive instrument, but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker they will not taint the validity of the instrument with undue influence.”

Our Supreme Court in Rothermel v. Duncan, 369 S.W.2d 917, in effect decided in favor of appellees the question presented here. In that case testatrix’ will left the entire estate to one son. A jury found that the will was the product of undue influence exercised by that son. The court held there was no evidence of probative force to support that finding. We think the facts in the Rothermel case were much stronger for the contestant than they are in this case. Ap-pellees make a fair comparison of the Roth-ermel case and this case, which is in substance as follows:

1. Here the attorney who wrote the will was employed by Mr. Graham, who gave him instructions as to its contents during several conferences before its execution by Mrs. Graham. In the Rothermel case the proponent son and sole beneficiary of the will wrote it without consulting anyone.

2. Mrs. Graham did not see the will until it was completed. Mrs. Rothermel did not see the will until it was completed.

3. The attorney read the will to Mrs. Graham at her request and after it had been read she said “that’s fine” and then signed it. Mrs. Rothermel signed her will without question, suggestion or comment. No one read or explained the will to her and no one saw her read it.

4. Mrs. Graham was seventy seven years of age. She suffered from various physical ailments. She was able to work in her yard and be up and around the house and to go to Abilene to execute the will. She lived for twenty months after its execution. Mrs. Rothermel was hard of hearing, her eyes were bad, her hands shook and she suffered from arthritis and diabetes. Her condition required care and companionship. She was ninety three when she executed the will and she died about nine months thereafter.

5. After Mrs. Graham executed the will it was delivered to either Mr. or Mrs. Graham and kept at their home under their joint control. Mrs. Graham showed it to one daughter and told her sister and a daughter-in-law of its contents. The Rothermel will was kept by the sole beneficiary, the proponent son, in his safety deposit box, subject to his exclusive control until after his mother’s death.

6. Mrs. Graham lived in town, was visited daily by friends, and frequently by contestants. Mrs. Rothermel lived with said son’s employee on his farm and was rarely visited.

7. Here there was a quarrel between testatrix and contestants shortly before execution of the will and this was one of a series of disagreements over many years. She then told contestants she was going to give all her property to Bill. After the quarrel, Mrs. Graham talked of disinheriting contestants. The Rothermel family was a closely knit one. Testatrix loved the children of her two sons equally and she declared to disinterested witnesses that she intended to leave her estate to her grandchildren equally.

8. Neither of the parties charged with exercising undue influence that caused the exclusion of contestants benefited therefrom. In the Rothermel case, the proponent son, who wrote the will and was charged with exercising undue influence to procure execution of a will that gave him everything was the sole beneficiary of any undue influence.

In the Rothermel case the Supreme Court said:

“ * * * before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925), 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944), 180 S.W.2d 511, wr. refused.
“The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.
“It cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Long v. Long, supra. Indeed it has even been held that one may request or even importune and entreat another to execute a favorable dispositive instrument; but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.”

The record shows that during the quarrel that shortly preceded execution of the will Mrs. Graham announced to contestants that she was going to give everything to Bill and thereafter talked of disinheriting them. There is evidence that she talked with her husband about execution of the will; that he suggested that she leave one third of her estate in trust for the education of Tom’s seven minor children. It was not shown that there was anything improper in the discussion of the disposition of her estate by the testatrix with the man to whom she had been married for fifty seven years. There is no evidence tending to show that Mr. Graham or Mrs. Donica caused Mrs. Graham to exclude the contestants from the benefits of her estate. There is no evidence that she did not desire to do so or that those charged overcame her will. There is not the slightest indication that she would not have excluded contestants but for the influence of Mr. Graham and Mrs. Donica. The circumstances relied upon by a contestant as establishing the elements of undue influence must be of a reasonably convincing and satisfactory character and they must not be equally consistent with the absence of the exercise of such influence. Barksdale v. Dobbins, Tex.Civ.App., 141 S.W.2d 1035, (Writ Ref.); Stewart v. Miller, 271 S.W. 311 (WR).

We hold there was no evidence to support the findings that Mr. Graham or Mrs. Donica unduly influenced the testatrix to execute this will. All of appellants’ points have been considered and are overruled.

Appellees present in the alternative points that the evidence is insufficient to support the jury findings or that said findings are against the overwhelming preponderance of the evidence. Because they could become material, we also pass upon and sustain those points. Barker v. Coastal Builders, Inc., 153 Tex. 540, 271 S.W.2d 798.

The judgment is affirmed.


source: Caselaw Access Project

author: WILLIAMS, Justice.

license: Public Domain

text:
    Ellis S. HUMBERT et al., Appellants, v. R. N. ADAMS, d/b/a R. N. Adams Construction Company, Appellee.
    No. 16485.
    Court of Civil Appeals of Texas. Dallas.
    April 23, 1965.
    Rehearing Denied May 21, 1965.

      See also Tex.Civ.App., 361 S.W.2d 458.
    Earl Luna, Dallas, Waggoner Carr, Atty. Gen., and I. Raymond Williams, Jr., Asst. Atty. Gen., Austin, for appellants.
    Fred T. Porter, Dallas, for appellee.
   WILLIAMS, Justice.

Appeal from an order sustaining motion for summary judgment. We give the parties the same designations as in the trial court.

This suit was originally instituted in the district court of Dallas County, Texas by Ellis S. Humbert against T. L. James & Company, Inc., and R. N. Adams, doing business as R. N. Adams Construction Company seeking damages for personal injuries alleged to have been sustained by Humbert as a result of a personal encounter with one John Kelly Sears, alleged to be an employee of both defendants, and acting at the time of such altercation in the course and scope of his employment. John Kelly Sears was never made a party defendant, individually, plaintiff’s sole contention of liability against defendants being that of respondeat superi- or. Humbert alleged that he was an inspector, employed by the Texas State Highway Department; that the defendants had a contract with the State of Texas for the construction of improvements on Highway No. 175; that Sears was employed by defendants as a supervisor on the job and that the assault and battery took place at the scene of the construction work. R. N, Adams filed his plea of privilege alleging that venue as to him should he transferred to Kaufman County, Texas where he resided. The plea of privilege was sustained by the trial court and appealed to this court. In Humbert, Appellant v. R. N. Adams, d/b/a R. N. Adams Construction Company, et al., Appellees, 361 S.W.2d 458 we carefully review the testimony given at such venue hearing (such testimony being set out in our opinion, and referred to herein) and speaking through Chief Justice Dixon, arrived at the conclusion that: “The assault arose out of a personal resentment on Sears’ part against Humbert. Sears was not in the course of his employment with Adams when the assault was committed. If there was any connection at all between the assault and the alleged failure of some of the materials not ‘passing the specifications’, that connection, as Humbert himself said, was ‘something way down the line.’ It was too remote to be considered a part of the assault.” We therefore affirmed the trial court’s judgment and the cause was removed to Kaufman County, Texas. After the transfer plaintiff filed his amended petition wherein he named R. N. Adams only as defendant.

R. N. Adams filed his motion for summary judgment in the District Court of Kaufman County, supporting same with transcript of the testimony of Humbert given at the plea of privilege hearing and also the oral deposition of John Kelly Sears, Adams’ employee. Humbert filed his answer to Adams’ motion and attached thereto his affidavit which added nothing to his testimony previously given on the venue hearing. According to the briefs the State of Texas and the Texas State Highway Department both intervened in the suit (although there is no plea of intervention shown in the transcript) claiming a subro-gation right to recover, in the event Hum-bert recovered, for certain compensation benefits and hospital expenses incurred by the State of Texas and the Texas State Highway Department, the employer of Humbert. Intervenors also filed an answer to the motion for summary judgment and attached thereto an affidavit of one R. O. Henley, resident engineer in charge of construction of the highway where the altercation occurred. He stated that Mr. Sears was directly in charge of the flexible base on the highway project; that he was an employee of R. N. Adams Company and worked directly under R. N. Adams as far as policy matters were concerned. The trial court heard the motion for summary judgment and sustained same thereby rendering judgment that plaintiff and intervenors take nothing against the defendant.

OPINION

The sole question presented by this appeal is whether the affidavits, testimony and deposition raised a genuine issue of fact vel non as to whether John Kelly Sears was acting within the course and scope of his employment for R. N. Adams at the time he committed the assault on Humbert. We have already held that the testimony of Humbert given at the plea of privilege hearing in Dallas County demonstrated that he was not acting within the course and scope of his employment for Adams. However, the trial court in Kaufman County had before it additional facts in the form of Sears’ deposition and the affidavits of Hum-bert and Henley when the motion for summary judgment was decided. Therefore, we must consider this additional evidence, as well as that heretofore studied, to determine whether same presents an issue of fact which should have been submitted to a jury.

Landmark rules govern us in our task of deciding the question presented by appeal from the summary judgment order. As we stated in Seale v. Muse, Tex.Civ.App., 352 S.W.2d 534, if there are any doubts existing concerning the propriety of the granting of the motion for summary judgment such doubts must be resolved against the moving party. The movant has the burden to conclusively negative the existence of any genuine issue in regard to controlling facts. A defendant moving for a summary judgment must assume the negative burden of showing, as a matter of law, that the plaintiff has no cause of action against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, affirming this court in 243 S.W.2d 220.

The evidence relied upon by the district judge to sustain the motion for summary judgment is clear in all material respects. R. N. Adams had a contract with the Texas State Highway Department to do certain highway construction work. John Kelly Sears was general superintendent for Mr. Adams on the job in question. It was his duty to see that the work was carried on according to the plans of the Highway Department. Gene Kennedy was his immediate superior. Ellis S. Humbert was the inspector for the State Highway Department on the job. Sears had known Humbert for several years. The two men had never had any difficulties. On November 17, 1960 Sears had a conversation with Humbert pertaining to the gradation of the flexible base. Humbert had complained about the gradation, meaning the size of the different materials used in the base. Humbert told Sears that there was an error in gradations and suggested that Sears get in touch with Mr. Henley, the resident engineer on the job, and talk with him about it and also suggested that Sears shut down delivery of materials to the job until the matter could be corrected. There was no animosity between the two men at all on this occasion. Following the conversation Sears left and talked to Mr. Henley. While he was talking to Henley, Humbert approached and the three of them discussed the problem and decided to continue the haul temporarily. Sears agreed to correct the gradation problem. Sears then left and went and talked to Mr. Kennedy about the problem. During this conversation Kennedy told Sears that Mr. Humbert had already talked to him and had made reference to the fact that Sears had talked to Henley and related that Humbert had said: “Well, I’d better go down there, he will go down there and tell him a bunch of damn lies.” Sears left Mr. Kennedy and some time later Mr. Humbert approached him. Sears asked Humbert why he made that remark to Mr. Kennedy and Humbert said: “Well, he’s just like you, he’s a god. damn liar. I didn’t say it.” Thereupon Sears hit Humbert with his fist and jumped on top of him. Humbert also hit Sears. This altercation took place on the job site about two and a half hours after the initial conversation concerning the gradation. As a result of the fight Humbert sustained serious personal injuries. When asked to tell what led up to the fight Sears said: “Well, he called me a god damn liar.” “Question: Did he tell you that to your face?” “Answer: Yes.” When Humbert was asked by the Court: “What were you and Mr. Sears fussing about; what was the dispute or fight about?” Humbert responded: “He seemed to think that I had called him a liar.” Again Humbert was asked: “Well, I understood you to say that the fight took place over the fact that he said that you had called him a liar; isn’t that right?” “Answer: That’s right.” Sears, in his deposition, stated that there was no anger or animosity evidenced at their initial meeting concerning the gradation; but that if Humbert called him a liar he could think of nothing else that caused him to do so other than their discussions concerning the gradation of the material several hours before.

The general rule that it is not ordinarily within the scope of a servant’s authority to commit an assault on a third person because such an assault is usually the expression of personal animosity and is not for the purpose of carrying out the master’s business, is restated by the Supreme Court in Smith v. M System Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112:

“To be within the scope of employment ‘the conduct must be of the same general nature as that authorized or incidental to the conduct authorized.’ * * * In Home Telephone & Electric Co. v. Branton, Tex.Civ.App., 7 S.W.2d 627-629, in an opinion by our present Chief Justice [Judge Hickman], then on the Court of Civil Appeals, the rule was said to be that: ‘ * * * where the act of the servant is not in the furtherance of the master’s business, or for the accomplishment of the object for which he was employed, but is performed as a resentment of insults, or in the furtherance of personal animosities of the servant, the master is not liable.’ See also A. B. C. Stores v. Brown, Tex.Civ.App., 105 S.W.2d 725; * * * J. J. Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359; Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.”

Plaintiff and intervenors argue forcefully that the facts presented to the trial court create issuable facts relating to course of employment within the rule announced in Gulf, C. & S. F. Ry. Co. v. Cobb, Tex.Civ.App., 45 S.W.2d 323; Central Motor Co. v. Gallo, Tex.Civ.App., 94 S.W.2d 821; Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880; Thompson v. Hodges, Tex.Civ.App., 237 S.W.2d 757; and Texas & Pacific Ry. Co. v. Crown, Tex.Civ.App., 220 S.W.2d 294. We are unable to agree. We think that each of these cases is distinguishable on the facts. One of the chief distinguishing features is the element of timing. If the assault is committed simultaneously or so closely connected with the work being done by the employee both acts are treated as one indivisible tort. Illustrative is the case of Gulf, C. & S. F. Ry. Co. v. Cobb, supra, where an engine foreman for the railroad company assaulted appellee by shooting him with a pistol during switching operations. The court, in affirming judgment, said, inter alia:

“Such acts are imputable to the master, under the doctrine of respondeat superior, and in accordance with the general principles that the master is liable for any act of the servant done within the scope of his employment, as well as for any act of the servant which, if isolated would not be imputable to the master, but which is so connected with and immediately grows out of another act of the servant imputable to the master, that both acts are ■treated as being one indivisible tort, which, for the purposes of the master’s liability, takes its color and quality from the earlier act.” (Emphasis added)

However, we think the facts in this case are such as to be controlled by the decisions in Texas & Pacific Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236; Home Telephone & Electric Co. v. Branton, Tex.Civ.App., 7 S.W.2d 627; Nat’l Life & Accident Ins. Co. v. Ringo, Tex.Civ.App., 137 S.W.2d 828; Norris v. China Clipper Cafe, Tex.Civ.App., 256 S.W.2d 664; Smith v. M System Food Stores, Tex.Civ.App., 293 S.W.2d 215, affirmed 156 Tex. 484, 297 S.W.2d 112; A. B. C. Stores v. Brown, Tex.Civ.App., 105 S.W.2d 725; and Jax Beer Co. v. Tucker, Tex.Civ.App., 146 S.W.2d 436.

The case of Texas & Pacific Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236 involves very similar facts and emphasizes the time element. In that case Houghland, the defendant’s employee who committed the assault on Hagenloh, became incensed at Hagenloh because the latter had called him a liar. At the time Houghland was engaged in trying to find property missing from luggage. The Supreme Court held that Houghland, in striking Hagenloh, was not carrying out the railroad’s business, but was carrying on an enmity that had theretofore developed between him and the plaintiff, even though same did have to do with his employment.

In Jax Beer Co. v. Tucker, Tex.Civ.App., 146 S.W.2d 436, Justice Young, speaking for this court, discussed a factual situation somewhat comparable and accented the time element. As he said:

“According to plaintiff’s own testimony, argument about the overcharge in the store had been concluded, and the later sidewalk conversation appears to have been a casual one, personal only to them, Dyer then being engaged in nothing pertaining to his required duties. Our research on the subject discloses that, whenever warranted by the facts, T exas courts uniformly draw a line of demarcation at the interval when a given scope of employment ceases and the servants own responsibility begins. ‘When the servant turns aside, for however short a time, from the prosecution of the master’s work, and engages in the doing of an act not in furtherance of the master’s business, but to accomplish some purpose of his own, whether in doing so he is actuated by malice or ill will * * *, there is no principle which charges the master with responsibility for such action.’ Hidalgo v. Gulf, C. & S. F. R. Co., 60 Tex.Civ.App. 433, 128 S.W. 683, 685 (writ refused).” (Emphasis added)

We place emphasis upon the fact that the record does not reveal any evidence of animosity or anger engendered or displayed in any way between Mr. Sears and Mr. Hum-bert as a result of the discussion between the two men having to do with the performance of the work on the highway in question. This discussion appears to have been conducted in a businesslike manner and both parties appeared to be cooperative to the end that the matter could be adjusted amicably. It was only after this discussion had been had, and in an interval of time estimated to be two and a half hours, that Sears heard that Humbert had accused him of being a liar and, confronting Humbert, Humbert called him a “god damned liar” which immediately led to the fight.

The fact that the direct and proximate cause of the encounter which led to plaintiff’s injuries was a purely personal one and not the remote occurrence dealing with the work is conclusively evidenced by plaintiff’s own testimony;

“Q. What were you and Mr. Sears fussing about; what was the dispute or fight about?
“A. He seemed to think I had called him a liar.
“Q. About what? What did you say, what did he say ?
“A. Well, I don’t know; when I walked up, that was the first thing he said, he started swinging. I don’t know what he said might have started it, something way down the line that happened earlier that day; I don’t know.” (Emphasis supplied)

It is further uncontradicted, both by the testimony of Humbert, his affidavit, and the testimony of Sears, that the fight arose out of the fact that Humbert said — or at least Sears had been told that Humbert had said ■ — that he would tell a bunch of “damned lies”.

Consistent with the authorities above quoted and in the light of the clear and convincing evidence concerning the facts surrounding the unfortunate assault, we hold that no issue of fact on the question of liability, vel non, on the part of Adams is presented and therefore the trial court correctly sustained the motion for summary judgment.

The judgment of the trial court is

Affirmed.


author: DIXON, Chief Justice.

text:
    DALLAS HANDBAG COMPANY, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.
    No. 16486.
    Court of Civil Appeals of Texas. Dallas.
    April 23, 1965.
    Rehearing Denied May 28, 1965.
    Oster & Kaufman and John Fox Holt, Dallas, for appellant.
    Johnson, Guthrie, White & Stanfield, Dallas, for appellee.
   DIXON, Chief Justice.

The question to be decided on this appeal is whether printed exclusion provisions in an inland marine insurance policy are in conflict with certain typewritten provisions which were added to the policy. Appellant says that the provisions are ira conflict and that the typewritten provisions must prevail. Appellee denies that there is any conflict.

In a nonjury trial judgment was rendered that appellant take nothing in its suit based on the policy.

Royal Indemnity Company, appellee, issued a policy to Dallas Handbag Company, appellant, for a three-year term beginning May 22, 1960 and ending May 22, 1963. The policy is described as a “merchandise floater” all risk policy. It provides insurance coverage in a total amount of $470,-500. However, by an endorsement added September 22, 1961 appellee’s maximum liability for water damage in the basement is limited to $5,000.

On July 28, 1962 appellant sustained a water damage loss in excess of $9,000 to merchandise in the basement of its prem» ises at 1110 Commerce Street in the City of Dallas. The insurance company rejected the insured’s claim on the ground that the loss in question is excluded from coverage under amended Exclusion No. 7(1) under the heading “PERILS NOT INSURED”. The amended clause is a part of the printed terms of the policy.

Amended Exclusion No. 7(1) is as follows:

“It is understood and agreed that Clause 7(1) under Perils Not Insured is hereby deleted and the following substituted therefor:
“Flood however caused, inundation, surface waters, high water or overflow, waves, tide or tidal wave or spray therefrom, including the backing up of sewers and drains resulting from any of the foregoing; all whether or not caused by water inundating or flooding land, the rising of or the breaking of boundaries of natural or man-made lakes, reservoirs, rivers or other bodies of water, or the accumulation on land of water immediately derived from natural sources; and all whether driven by wind or not, or whether caused by or attributable to earthquake or other earth movement; but this exclusion shall not apply to property in transit.
“Seepage, leakage or influx of water immediately derived from natural sources through basement walls, including doors, windows and other openings therein, foundations, basement floors, sidewalks or sidewalk lights, unless directly caused by or resulting from physical damage to the premises containing the property covered by a peril not otherwise excluded.”

Appellant says that the above quoted exclusion provision is in conflict with two typewritten paragraphs which are to be found under the heading “DEDUCTIBLE:” These typewritten paragraphs are as follows:

“IT IS AGREED THAT THIS COMPANY SHALL NOT BE LIABLE FOR MORE THAN $20,000.00 ON PROPERTY LOCATED IN THE BASEMENT AT 1110 COMMERCE ST., DALLAS, TEXAS, AS REGARDS WATER DAMAGE OCCURRING AT THIS LOCATION.
“EACH CLAIM FOR WATER DAMAGE (EXCEPT SPRINKLER LEAKAGE OR DAMAGE AS A RESULT OF FIRE LOSS) SHALL BE ADJUSTED SEPARATELY AND FROM THE AMOUNT OF EACH SUCH ADJUSTED CLAIM THE SUM OF $ONE HUNDRED DOLLARS ($100.00) SHALL BE DEDUCTED.”

The proof of claim submitted to appellee by appellant, signed by Earl Morchower, appellant’s President, contains this sworn statement:

“A water damage loss occurred about the hour of-- o’clock ■ — ■ m. on the 28th day of July 1962, the cause and origin of the said loss were heavy rains caused water from drains to fill up basement.” (Emphasis supplied)

In MorchowePs deposition he testified that the only water damage appellant sustained was to merchandise in the basement, that there was no damage to goods on the first floor or to floors above, that the company’s roof did not leak and that so far as he knew the drains throughout the building did not leak.

Appellant’s first three points on appeal are premised on the theory that printed Exclusion No. 7(1) and the typewritten provision under the heading “DEDUCTIBLE:” are in conflict and that the typewritten provision must prevail. After careful study we have concluded that there is no conflict between the printed and the typewritten provisions in the policy.

Exclusion No. 7(1) does indeed exclude many types of water damage losses: It excludes flood however caused, inundation, surface waters, etc. and excludes water damage caused by “backing up of drains * * y ^ case not in point but bearing some similarity to the instant case is Sun Underwriters Ins. Co. of N. Y. v. Bunkley, Tex.Civ.App., 233 S.W.2d 153.

We cannot agree with appellant’s contention that Exclusion No. 7(1) excludes all water damage coverage. Exclusion No. 7(1) does not exclude damage to merchandise resulting from leaks in the roof, overflow of toilets, leakage from a drain, seepage through walls other than basement walls, water entering basement floors through seepage, leakage or influx of water directly caused by physical damage to the premises, and other types of water damage.

Further, we cannot agree with appellant’s contention that the typewritten paragraphs provide coverage for all water damage except sprinkler leakage or damage as a result of fire loss. It is significant that the typewritten portion will be found under the heading “DEDUCTIBLE:”. It provides for a separate adjustment of each claim for water damage and for a deduction of $100 from the amount of each such adjusted claim except as to sprinkler leakage or water damage resulting from fire loss. It does not create any new coverage or restore any coverage which has been excluded by any printed portions of the policy.

The typewritten paragraphs take notice of an agreement to limit appellee’s liability to $20,000 on property located in the. basement of 1110 Commerce Street as regards water damage. By an endorsement later attached in another part of the policy the amount was reduced to $5,000. But such provision does not undertake to grant a type of coverage which is excluded elsewhere in the policy.

Appellant lists six rules of interpretation applicable to an insurance contract when it contains conflicting or ambiguous provisions. We do not disagree with these aids to construction but they are not applicable here. Since we find no conflict or ambiguity in the printed and typewritten terms of the policy there is no occasion for us to resort to the rules of construction and we have no right to do so. United States Fire Ins. Co. of N. Y. v. Rothwell (Tex.Comm. of App.) 60 S.W.2d 759. Appellant’s first three points are overruled.

In its fourth point appellant charges that appellee’s adjuster compromised and settled the water damage for $5,000 and tile court erred in not giving effect to- the compromise in settlement. There is no merit to this point. The record shows that an adjuster employed by a company known as General Adjustment Bureau filled out a proof of loss and arranged for a salvage sale of the damaged merchandise. The proof of loss was rejected by appellee. There is no evidence that the adjuster was authorized to bind appellee to a settlement agreement. The adjuster’s deposition was taken. We quote part of his testimony:

“Q. * * * Did you offer to settle the above claim for $5,000.00?
“A. No.
“Q. Did you settle the above claim for any amount?
“A. No.
“Q. Did you inform Mr, Morchower that you would settle his company's water damage loss to personal property for $5,000.00?
“A. No.
“Q. Did you have authority to make any settlement of the loss with Dallas Handbag Company?
“A. No.
“Q. Were you instructed to submit all offers to settlement to Royal Indemnity Company for their acceptance or rejection?
“A. This was our function — our company’s function. The final decision is always left with the company. Our only job is to investigate and determine amounts, and it’s their decision as far as any liability is concerned.”

Appellant’s fourth point is overruled.

The judgment of the trial court is

Affirmed.


author: COLLINGS, Justice.

text:
    BAROID DIVISION, NATIONAL LEAD COMPANY, Appellant, v. J. E. EARLY, Appellee.
    No. 3958.
    Court of Civil Appeals of Texas. Eastland.
    April 30, 1965.
    W. H. Fogleman, Jr., Houston, for appellant.
    H. M. Hood, Borger, for appellee.
   COLLINGS, Justice.

J. E. Early, the owner of a building in Stinnett, Texas, brought suit against Ba-roid Division, National Lead Company, and Bo Mud Company for damages alleged to have been sustained to the floor of plaintiff’s building while occupied by appellants under an oral lease contract. The trial was before the court without a jury and judgment was rendered against the defendants, jointly and severally in the sum of $1235.79. Baroid Division, National Lead Company has appealed.

It is undisputed that in 1959, appellee Early by oral agreement leased the building in question to Bo Mud Company for a rental of $30.00 per month which was subsequently raised to $45.00 per month, and that the lease was terminable at any time on thirty days notice. Appellant, Baroid Division, National Lead Company, is the successor to Bo Mud Company. The dimensions of the building in question are 24 feet wide and 64 feet in length. There was evidence to the effect that the lease agreement contemplated that the building was to be used by appellant for office purposes and also for storage. Appellee testified, in effect, that the building was to be used for office purposes and for light storage and he also stated that he told the representative of Bo Mud at the time of the lease agreement that he didn’t care what they used the building for, but didn’t want them to break the floor. He stated that he knew they were in the mud business but didn’t know about all the details of what they stored or used. He testified in effect that under the lease agreement the lessee was to keep the floor repaired, and that as long as their employee Vander-griff was there the agreement was complied with. Mr. Vandergriff also testified that Early told Bo Mud’s representative at the time of the lease agreement that they could use the building for whatever they wanted to so long as they took care of the floor, and that while he, Vandergriff, was in charge of the premises he did take good care of and kept the floor in good repair. Appellee’s contention is that the gist of the lease agreement between the parties was that Bo Mud, appellant’s predecessor, specifically agreed that it would take care of the floor regardless of what it used the building for and would keep the floor in good repair.

Appellant’s contention concerning the terms of the lease is that the oral lease agreement contemplated use of the premises for office purposes with specific authority to also use the building for storage of any character. Appellant presents points urging that (1) there was no competent evidence to refute appellant-lessee’s contention that the premises were at all times used for the very purposes for which they were leased by appellant; (2) that the court erred in failing to take into proper account the age of the building and its generally rundown condition at the time the oral lease commenced and (3) that there was no competent evidence to refute appellant’s contention that the worsened condition of the floor was the result of normal wear and tear and action of the elements. Although the building was old at the time of the oral lease it is not true, as appellant apparently contends that the floor was then in a generally rundown and! delapidated condition. The evidence shows that the floor was replaced and improved in 1951 or 1952 and supports the conclusion, that it was in good condition at the time of the lease. The evidence also shows that the parties agreed that the lessee was to take care of the floor and keep it in good repair. It is undisputed that the floor sustained considerable injury while the building was occupied by appellant in that many of the sills were broken and resting on the ground when appellant moved out; that the floor was in a mashed-in delapidated and uneven condition with “sunken places” and all “crooked up” and was curved up and cracked; that the floor was in such a damaged condition that appellant demanded that Early repair it, but Early refused. Appellant then gave Early thirty days notice and moved out.

In our opinion appellant was liable for the damages sustained to the floor because the agreement was, in effect, that the lessee would keep the floor in good repair, and there is ample evidence showing that the agreement was not complied with. The extent and nature of the damage as shown by the evidence is such that it cannot be held as a matter of law that “the worsened condition of the floor was the result of normal wear and tear.” Although Early did agree for the lessee to use the building for storage purposes without any specific limitation, his agreement was made with the condition that the lessee would not “break up” the floor and would take care of the floor and keep it up. Appellant’s points urging in effect that it was not liable for the damages sustained to the floor are overruled.

In appellant’s 4th point he complains of the finding on damages, contending that the court erred in basing its calculations of damages on the cost of installing a new hardwood floor. The evidence shows that the floor which was in the building at the beginning of the lease contract was a good floor with 2 x 8’s for sills, a subfloor of used flooring and a top floor of new material and most of it hardwood. There was evidence to the effect that during appellant’s occupancy of the building the floor was badly damaged, that it had settled away from the building on both sides, that the damaged portion applied to about J^ths of the entire building, that the floor was so low on the ground that it was impractical if not impossible to repair it without taking up the entire damaged area; that you couldn’t get under the floor to do any repair at all. Mr. Max Brown, who testified that he was experienced in such type of repair work, stated that the most practical way to repair the floor was to start in the middle and tear it out as far as was needed to replace the joists, and to come back with a subfloor and a hardwood floor on top. Mr. Brown estimated the cost of repairing the floor in this manner, and such estimate is the basis of the court’s calculation of the damage suffered by appellee.

In arriving at the amount of damages suffered by appellee it is indicated that the court considered the fact that about 16 feet of the building, or approximately J4th of its length, was set aside for office purposes and that such portion was not damaged beyond that occasioned by customary wear and tear. The court therefore deducted }4th of the cost of repairing the entire floor, which the court found was $2353.88, calculating that 14th of such total amount was $588.47, which would leave $1765.41. The court estimated that considering the character of the floor which had been in the building over a period of 11 or 12 years, that there would be a depreciation of about 30% in value, which would reduce the amount of damages by $529.62, which was deducted from the figure of $1765.41 leaving a balance of $1235.79. Based upon this calculation the court found that the amount of damages which appellee Early was entitled to recover was $1235.79. In the case of Whitworth Estate v. Mangels of Texas, Inc., Tex.Civ.App., 363 S.W.2d 851 it was held that where a lessee covenanted to return property at the end of the lease in as good condition as when received, ordinary wear and tear excepted, the proper measure of damages was the reasonable cost of repairs necessary to place the building in such good condition. In the instant case the evidence supports the conclusion that appellant leased the building with the understanding that the floor would be kept in good repair. In our opinion the measure of damages here applicable is the same .as in the case above cited. The court made proper allowance for the relatively undamaged portions of the floor in question. The amount of damages found by the court is fair and reasonable and is amply supported by the evidence.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    Martin E. RYAN, Appellant, v. Bettye Ryan LEMAY, Appellee.
    No. 7660.
    Court of Civil Appeals of Texas. Texarkana.
    May 4, 1965.
    Robert B. Hershey, Dallas, for appellant.
    Robert M. Ewing, Witts & Ewing, Dallas, for appellee.
   DAVIS, Justice.

Appellee-defendant, Bettye Ryan Lemay, on August 16, 1960, filed suit for divorce in the Domestic Relations Court No. 1 of Dallas County, Texas, against appellant-plaintiff, Martin E. Ryan. A property settlement agreement was executed between the parties and was filed in the divorce suit. Appellant signed a waiver before J. Harvey Lewis, attorney for appellee. Appellant signed deeds of conveyance to certain real estate situated in Dallas County, Texas, on August 25, 1960, and a Deed of Trust Note. Appellant received his one-half interest out of the community property. On October 17, 1960, the divorce was granted and the appellant received a certified copy of the divorce judgment through the mail. On October 21, 1960, appellant conveyed an undivided one-half interest in and to certain real estate to the appellee in consideration of the cancellation of the Deed of Trust Note. On January 5, 1964, appellant filed suit in the Court of Domestic Relations No. 1 in Dallas County, wherein he sought to set aside the judgment of divorce and the deeds to the real estate on the ground that the divorce judgment was void because appellant signed and acknowledged a waiver of citation in the divorce proceedings before J. Harvey Lewis, attorney for appellee, in violation of Rule 119, Texas Rules of Civil Procedure.

Appellee filed a motion to dismiss the case on two specific grounds: That the appellant did not perfect his appeal within 30 days after the rendition of the judgment of divorce; and, appellant did not perfect his appeal to the Court of Civil Appeals by way of Writ of Error within six months.

Before the motion to dismiss the appeal was heard, appellee took the deposition of the appellant. In the deposition, appellant testified as follows:

“Q. Ever since the divorce was granted?
A. Yes, sir.
Q. Are you asking that this divorce be set aside?
A. No, I’m asking that the settlement be adjusted or some of the papers be — uh—substantially
Q. As far as you’re concerned, your’re divorced?
A. I’m divorced.
Q. You’re just looking into the property aspects, is that right?
A. That’s right.
Q. There’s no question in your mind about being divorced, is there?
A. No, sir.
Q. You read this property settlement agreement, didn’t you?
A. The original property settlement —yes, sir.”

The trial court granted the motion to dismiss the case and the appellant has perfected his appeal. He brings forward one point of error.

By his point, appellant says the trial court erred in dismissing the case because the judgment in the divorce case is void, because the waiver of citation was acknowledged before an attorney in the case, contrary to Rule 119 of the T.R.C.P.

Appellant did not attach the waiver of service of citation to his pleadings, nor the divorce judgment which he sought to set aside. Neither did appellant list the deeds, or copy them in his pleadings.

There are none of the divorce proceedings before this court. This court must presume that the judgment of divorce is valid on its face. It appears that the appellant signed a community property settlement agreement with the appellee in the divorce proceedings that was actually filed among the papers. Appellant accepted his part of the community property as a result of the divorce judgment. It is also shown by the deposition that he signed a waiver of citation before the then attorney for the appellee. If the waiver of service of citation was executed in violation of Rule 119, T.R.C.P., the appellant should have called this fact to the attention of the trial court. This he could have done by filing a special exception, or a plea in abatement prior to the granting of the divorce. He could have perfected his appeal within 30 days, or, by Writ of Error within six months after the divorce was granted. This, appellant did not do. Appellant having submitted himself to the jurisdiction of the court, should have exhausted all adequate remedies at law to set the judgment aside. Wilmeth v. Wilmeth, Ct.Civ.App., 311 S.W.2d 292, wr. dism’d; 64 T.J.2d 491, Jurisdiction. Appellant entered his appearance in court by signing the waiver. 6 T.J.2d 19, Sec. 16; Radford v. Radford, Ct.Civ.App., 42 S.W.2d 1060, N.W.H.; 34 T.J.2d 369, Sec. 355. There is no showing of a meritorious defense to the judgment. 33 T.J.2d 714, Sec. 179; 34 T.J.2d 92, Sec. 226. Since the appellant actually entered his appearance in court, (64 T.J.2d 61, Appearance), we must presume that the judgment disposed of all the issues involved. 64 T.J.2d 487, Judgments. The point of error is overruled.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Ruben ARMSTEAD et al., Appellants, v. Eula HARVEY, Appellee.
    No. 7634.
    Court of Civil Appeals of Texas. Texarkana.
    May 11, 1965.
    Thomas J. Cook, Cook & Booth, Dallas, for appellants.
    Webber W. Beall, Jr., Touchstone, Bernays & Johnston, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a tort case, the suit followed an automobile collision. The judgment of the trial court is affirmed.

The jury answered two damage issues in amounts unsatisfactory to the plaintiffs in the trial court and reversal of the judgment entered is sought on the grounds that the damages assessed in each instance was inadequate and contrary to the great weight and preponderance of the evidence. The two special issues were in conventional form. The jury was instructed to fix the monetary value of past and future mental and physical pain and suffering, expense of medical treatments, loss of earnings, and loss of services in the home. The jury valued plaintiffs Ruben and Queen Armstead’s damage at $230.00 and plaintiffs Nathaniel and Doris Buford’s damage at $95.00.

In brief, the appellants’ case for inadequacy of the award to Nathaniel and Doris Buford is supported by argument that the verdict of $95.00 is precisely the amount of medical expense proven, and that nothing was allowed for other elements of damage. Substantially the same reasoning is advanced with respect to Ruben and Queen Armstead’s recovery, though it is conceded that the verdict is in excess of proven medical expense by some $85.00. This latter amount is condemned as totally inadequate for pain and suffering, time lost from daily work, and cost of medication.

The jury’s answers to negligence issues were favorable to the appellants as plaintiffs below. In the trial court the defense exploited a theory that the collision was nothing more than a slight striking together of the bumpers of the two cars involved. The theory subsumes that evidence of a feeble bump warrants an inference that no substantial injury could have been inflicted and is a refutation that injury was suffered. Evidence was offered, which, if believed by the jury, would tend to sustain the defensive theory. The principal source of evidence proving injury was that given by the parties themselves and the opinions of their medical and lay witnesses. The medical witness testified that he found observable injury reactions or symptoms, but in the main the character and extent of injury had to be determined from the testimony of the injured party.

An analysis of the evidentiary record suggests that the jury could have very plausibly decided that the defendant driver was negligent, but that the collision was so slight that it could not have caused serious harm to the plaintiffs. Following up such a conclusion the jury might with reason decide that an award sufficient to take care of the medical expense would be a just disposition of the plaintiffs’ claims. In other words the jury could have concluded that the injuries were nonexistent, or nearly so, and exagerated in any event, but that medical examination was in order following the occurrence, even when little or no injury was suffered, and the defendants should bear the expense. It is to be observed in this connection that there is nothing in the record except the amount of damages assessed to suggest that the jury was confining its verdict to medical expense. What is here said assumes the validity of the appellants’ contention that the jury was merely attempting to reimburse medical expense without so holding.

Fact and fiction sometimes appear in identical dress. The function of the jury is to go beyond the superficial, the outward appearance, and distinguish between the two. The following extract from Harbuck v. Ramos, 371 S.W.2d 812 (Ct.Civ.App.1963, no writ) is adopted as apt wording to dispose of this appeal:

“The jury heard the testimony of plaintiffs, and of the medical witness, observed their demeanor and conduct on the witness stand, and having carefully weighed the testimony, returned their finding into court. The credibility of witnesses, and the weight to be given their testimony are questions for the jury. This is especially true with respect to testimony of parties or other persons interested in the litigation. * * * ”

After carefully studying the entire record it is concluded that the appellants’ points of error should be overruled. See Henderson v. Smith, 354 S.W.2d 429 (Tex.Civ.App.1962, no writ); Arrington v. Paschall, 352 S.W.2d 866, (Tex.Civ.App.1962, n. r. e.); Williams v. Macatee, Inc., 371 S.W.2d 736 (Tex.Civ.App.1964, n. r. e.). The nature of the evidence sets this case apart from cases such as Laney v. Hardy, 265 S.W.2d 609 (Tex.Civ.App.1954, no writ). In that case it was undisputed that the injured party’s jaw was broken and that he was incapacitated for several weeks. Here the nature and extent of injury was controverted.

The judgment of the trial court is affirmed.


text:
    Ned S. WILLIAMS, etc., et al., Appellants, v. CARTER BROTHERS COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Rehearing Denied July 2, 1965.
    Robert L. Milby, Hamm, Taylor & Milby, London, for appellant.
    Roy E. Tooms, Jr., Brown, Tooms & Hel-ton, London, for appellee.
   J. PAUL KEITH, Jr., Special Commissioner.

This litigation arises from an automobile and track accident that happened in Laurel County June 8, 1961. The facts describing the collision are not important on this appeal.

On August IS, 1961, a suit was filed in the Laurel Circuit Court by Boyd F. Taylor, ancillary administrator of Robert E. Williams, the driver killed in the accident, against Carter Brothers Company, Inc., the owner of the truck, and Albert McLaney, the truck driver.

On September 11, 1961, a joint answer was filed by the defendants pleading the usual defenses to actions of this type, but including no counterclaim.

On June 6, 1962, Carter Brothers Company, Inc. and Albert McLaney filed their complaint in the same court against Ned S. Williams, the Tennessee executor of Robert E. Williams, and Boyd F. Taylor, ancillary administrator of Williams, seeking for the company property damage, and for Mc-Laney damages for personal injury. Service of summons was had on the nonresident executor through the Secretary of State under KRS 188.020.

After a jury trial, verdict and judgment were entered for Carter Brothers and McLaney for their damages against the Williams estate, and the death claim against Carter Brothers and McLaney was dismissed.

Appellants claim that a nonresident personal representative may not be sued in the courts of the Commonwealth of Kentucky. In this case the motorist was a nonresident using the Kentucky highways when he was killed in an automobile accident.

KRS 188.020 was enacted by the 1954 Legislature enlarging the old act to include the personal representative of a decedent. This Court has not been called upon to decide the validity of it, but it was construed by the United States Sixth Circuit Court of Appeals in Parrott v. Whisler (1963) 313 F.2d 245 and upheld by that Court.

It is hornbook law that a personal representative is limited to his own state either to sue or be sued. This was also the rule in Kentucky prior to the enactment of KRS 188.020. A few states have not extended the “long arm” doctrine in nonresident motorist cases to include personal representatives, but in those that have, the courts have generally upheld the validity of it.

It is appellants’ contention that, first, the personal representative may not be sued in Kentucky and, second, the Act is merely an alternate method of process and cannot meet the test of due process of law.

These arguments were answered clearly in the Parrott v. Whisler case, supra:

“These and other questions relating to similar statutes have been litigated in the courts and while there is some authority to the contrary, the better reasoned cases and the weight of authority support jurisdiction against the nonresident personal representative.
“This result would seem to follow from the decision of the Supreme Court in Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, which upheld the constitutionality of a statute providing for service on a nonresident motorist which was attacked on the ground that it violated the due process clause.
“The rationale of Hess was that the nonresident motorist gave his consent to the appointment of the agent upon whom process could be served. We see no good reason why the motorist could not also bind his personal representative by the same consent. The agency did not terminate upon Whisler’s death because the rights of third persons had intervened, namely, the injured plaintiffs and the state of Kentucky which was attempting to provide its residents with a remedy in its courts for damages sustained by them on account of the negligent use of its highways by a nonresident motorist.
“The legislative intent in the adoption of the 1954 amendment is clear. We think the amendment was a valid exercise of police power by the state. In the absence of any decision by the Court of Appeals of Kentucky on this question we feel that we should follow the better reasoned cases, particularly since they constitute the overwhelming weight of authority.”

This Court now adopts the foregoing as a correct exposition of the law.

Appellants next complain that no verified claim was filed as required by KRS 396.020 with the personal representative. This section specifically provides “that such demand need not be made if the personal representative of the decedent be a nonresident * * In this case Ned S. Williams was the executor of the decedent’s estate and Boyd F. Taylor, a Kentucky resident, was the ancillary administrator of the estate. Both were parties to the litigation. We think that the personal representative was Williams and as he was a nonresident no such demand was necessary. Also, since this claim sought unliquidated damages, no demand was required.

Appellants’ third complaint is that under CR 13.01 appellees could not assert an independent action when there was already pending in the same court an action between the same parties arising out of the same occurrence.

On June 6, 1962, the day before the Statute of Limitations ran, the appellees, defendants in the lower court, could not file an amended answer and counterclaim without giving a three day notice. (The rules of the Laurel Circuit Court required a three day notice for the filing of motions, including the motion to file an amended answer and counterclaim). If they gave notice, the statute would run against them. They filed an independent suit against the appellees. The cases were heard together and the issues determined. The situation would be different had the judgment already been entered in the first action. The fact that the first action was still pending and that they were heard together and all issues resolved in one trial carried out the rationale of Rule 13.01. As the record shows, a third action of Willie Dise, a guest passenger, was also heard with these two actions, and all issues in all the actions were resolved in one trial. The real purpose of Rule 13.01 is to require that all issues be resolved between the parties in one trial and to avoid the multiplicity of trials. We think the Court properly overruled the motions of the appellants to dismiss on each occasion.

The judgment should be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: WADDILL, Commissioner.

text:
    LOUISVILLE WHOLESALE LIQUOR COMPANY, Inc., et al., Appellants, v. Mary June ROYAL, Adm'x, etc., Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Rehearing Denied July 2, 1965.
    W. S. Heidenberg, Raymond F. Boss-meyer, Heidenberg & Bossmeyer, Louisville, for appellants.
    Josephine P. Hughett, H. Solomon Horen, Louisville, for appellee.
   WADDILL, Commissioner.

The appeal is from a judgment awarding appellee, the administratrix of the estate of George Royal, the sum of $7,500 against the appellants Curtis Harris and his employer, Louisville Wholesale Liquor Company. The crucial question presented is whether the appellants were entitled to a directed verdict. We answer this question in the affirmative.

This action arose from a collision on May 20, 1959, involving a car driven by Lem Jones and a truck owned by the Louisville Wholesale Liquor Company and driven by Harris. Royal, who was fatally injured in the collision, was a passenger in the Jones car. The collision occurred on Dixie Highway which consists of two paved lanes carrying northbound traffic and two paved lanes for southbound traffic. A dirt median strip twelve feet wide separates the four lanes but is interspersed by paved crossovers at irregular distances. The collision took place about 4:00 P.M. during a light rain which made the pavement slick.

The basic facts are not in dispute. Jones drove from the Weaver Tavern on the east side of the Dixie Highway, crossed the northbound lanes and stopped on the median before pulling onto the southbound lanes. He drove south for 600 feet at the speed of 20-25 miles per hour during which time his car was weaving back and forth across the center line of the southbound lanes. At the same time Harris was driving his truck in the passing lane in a northerly direction at a speed of 40 miles per hour, which was within the speed limit. Harris observed the weaving motions of the Jones car in the two southbound lanes when he was several hundred feet south of it. However, he maintained his speed and attended to driving on his own side of the median. He did not again see the Jones car until it skidded through a crossover at which time it was about six feet in front of his truck.

In describing the collision a disinterested eyewitness testified that he observed the .weaving motions of the Jones car and that without any indication it “made an abrupt turn and zoomed across the road.” A collision was then inevitable.

Appellants maintain the court erred in overruling their motions for a directed verdict and for judgment n. o. v. because the evidence conclusively shows that Harris was guilty of no negligence. Appellee maintains that Harris was negligent in that, having observed the erratic movements of the Jones car and knowing the highway was slick, he should have maintained a continuous lookout and not assumed that Jones would stay on his own side of the road. Reliance is had on Farris v. Summerour, Ky., 296 S.W.2d 708, but this case does not entirely support ap-pellee since we there absolved Farris of contributory negligence on the ground that he was not required to anticipate that Summerour would be driving in violation of the law. While it was the duty of Harris to keep a careful lookout, he was not required to anticipate that a car traveling in the opposite direction would suddenly change direction and move over a 12-foot median into an opposite lane of travel. Garvey v. Beasley, Ky., 356 S.W.2d 764.

-The uncontradicted evidence requires us to hold as a matter of law that there was no negligence on the part of Harris, nor any opportunity for him to have avoided the collision. Therefore, Harris’ motion for judgment n. o. v. should have been sustained.

The judgment against appellants is reversed with directions to enter judgment n. o. v. in their favor.


author: SCOTT REED, Special Commissioner.

text:
    WHITTENBERG ENGINEERING & CONSTRUCTION COMPANY, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Rehearing Denied June 25, 1965.

      William Mellor, Louisville, for appellant.
    James W. Hendricks, Thomas W. Speck-man, Gavin H. Cochran, Marshall, Cochran, Heyburn & Wells, Louisville, for appellee.
   SCOTT REED, Special Commissioner.

This is an action for indemnity. The appellee, Liberty Mutual Insurance Company, was the workmen’s compensation insurer of a subcontractor. Two employees of the subcontractor were injured on equipment owned by the general contractor who’ was the appellant, Whittenberg Engineering and Construction Company, and furnished by it to the subcontractor. Liberty claimed it was entitled to indemnity from Whitten-berg in the amount of workmen’s compensation benefits paid by it to the injured employees because it was Whittenberg’s negligence that caused it to be liable for and to make the payments.

A trial by jury resulted in a verdict in favor of Liberty to the extent of the benefits paid the two injured employees, amounting to $23,281.58. This verdict was returned on January 15, 1963. The next day Liberty tendered a judgment to the trial court adjudging it entitled to the amount of the verdict and the judgment was entered. Two days later, on January 18, 1963, Liberty tendered to the trial court an amended judgment which likewise adjudged that it was entitled to recover the amount of the verdict. On that same day Whittenberg paid the judgment and filed notice of appeal to this court. On February 14, 1963, twenty-nine days after the first judgment was entered, Liberty tendered a second amended judgment and for the first time claimed interest on the amount of the verdict from the date of payment to the injured employees. This motion recited that it was filed under CR 60.01. The trial court overruled the motion to amend on the ground that it had no right after ten days to modify or amend the judgment.

Whittenberg appeals from the verdict and judgment against it and Liberty cross-appeals from the action of the trial court in refusing to amend the judgment so as to allow it prior interest on the amount of the verdict.

It appears that Whittenberg had a general contract to construct a hospital in Louisville, Kentucky. It subcontracted the plastering work on the project to Charles J. Knight & Sons (hereinafter called Knight). As part of the subcontract Knight agreed to furnish workmen’s compensation insurance on its employees working on the project and to give Whittenberg evidence of such coverage. Knight insured its liability for workmen’s compensation payments to its employees working on this project with Liberty. Liberty notified Whittenberg that it had effected the insurance and agreed to give Whittenberg ten days’ notice of any cancellation of the coverage.

During its performance of the general contract Whittenberg constructed and maintained a hoist for the hauling of materials. Whittenberg made this hoist available to Knight for use in performing Knight’s subcontract for the plastering, though on all occasions and particularly on the occasion in question Whittenberg’s employees were in charge of maintaining and operating the hoist.

On the occasion which gave rise to this action two employees of Knight’s were riding on the hoist for the purpose of steadying some material which was being used in the performance of the project. The hoist fell about 70 feet and Knight's two employees were injured.

One of the injured employees brought an action against Whittenberg for negligence and sought common law damages. Liberty intervened in this action and asked that it be subrogated (cf. KRS 342.055) to the extent of compensation benefits paid by it to the suing employee in any recovery he might make. Whittenberg in this action by the employee moved for and was granted a. summary judgment dismissing the employee’s complaint and the intervening complaint of Liberty.

Later Liberty filed the instant action against Whittenberg for indemnity, alleging that Whittenberg’s negligence caused the loss. Whittenberg contended that the action was barred by the former judgment entered in the injured employee’s action; that Liberty was not entitled to indemnity in any event; and finally that Whittenberg was not negligent under the circumstances presented because the injured employees of the subcontractor, Knight, were merely licensees or trespassers on the hoist and no violation of duty to them by Whittenberg was shown. The trial court overruled these defenses and submitted the case to a jury under instructions to which no objection was made. The jury found that Whittenberg was negligent on the occasion mentioned and that its negligence caused the injury to Knight’s employees.

Whittenberg argues that it was not negligent on the occasion of the injury to the two employees because the injured employees were merely licensees or trespassers while riding on the hoist. The hoist was constructed and maintained by Whittenberg for hauling materials to and from the upper floors of the hospital building under construction. From time to time Whittenberg allowed subcontractors to use the hoist op-crated by a paid employee of Whittenberg in return for an hourly charge paid to Whittenberg.

There was a sign on the hoist which said “Keep off, no riders”.

There was testimony that Whittenberg considered the hoist to be for the hauling of materials only and that employees were instructed not to ride on it. There was also testimony that it was a general practice on the job for employees of Knight, as well as employees of Whittenberg, to ride the hoist at least for the purpose of loading and steadying materials being transported on it.

In any event, Whittenberg’s argument is confined to the proposition that the employees of Knight who loaded material onto the hoist and were riding it for the purpose of steadying the material were merely licensees or trespassers and as the proof showed that the hoist dropped because of defective construction and maintenance of the hoist, Whittenberg violated no duty to the injured employees and was not negligent.

Whittenberg relies upon two cases to sustain its position. The first is Ockerman v. Faulkner’s Garage, Inc., Ky., 261 S.W.2d 296, wherein it was held as a matter of law that there was no liability to a licensee by reason of the fall of a defective elevator. This was the case of a minister who went to a garage building to see the owner about a church improvement program. The minister was told that the owner was on the second floor. The minister undertook to ride a freight elevator consisting of a small platform without guard rails. The elevator slipped and fell a few feet until it was haulted by an automatic stop. The minister lost his balance and fell to the first floor. This court held that the minister was not on the premises as a business visitor to whom the possessor owed a duty to discover the actual condition of the premises and then make them safe or warn him of the dangerous condition.' The court took the view that the minister was a licensee to whom the garage owed no duty as to the condition of the premises other than that of not knowingly letting him run upon a hidden peril or wilfully or wantonly causing him harm. The other case relied upon by Whittenberg is Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4, in which we held as a matter of law that there was no liability on the part of an independent contractor carpenter to the employee of an independent contractor painter for injuries resulting from the fall of a scaffold which the painter borrowed from the carpenter. It was held that the painter was at most a licensee so far as the latter was concerned and that he took the facilities as he found them.

In both of these instances the visitor to the premises was not on a mission for the business benefit of himself and the person against whom liability was asserted. In the instant case, however, Knight’s two employees were engaged in performing work directly connected with the construction of the hospital. They were loading and transporting materials to be used in the construction of the hospital. Whittenberg was under contract as the general contractor to effect the construction of the hospital, and Knight, the employer of the two injured employees, was a subcontractor under Whittenberg to perform this construction. Therefore, there is no difficulty in concluding that the two injured employees on the occasion of their injury were on a mission for the mutual business benefit of their employer, Knight, and Whittenberg, the general contractor. We conclude that on the occasion of their injury the injured employees were business visitors or invitees so far as the use of the hoist was concerned and that Whittenberg had a duty to exercise ordinary care to avoid injury to them. See 2 Harper and James, The Law of Torts, Section 27-12, page 1478.

If Whittenberg failed to exercise ordinary care in the construction, installation and maintenance of the hoist and its failure to exercise ordinary care was the cause of the injury to the two injured employees, then Whittenberg’ was negligent on the occasion complained of and its negligence was the cause of the injuries.

The testimony concerning the sign placed on the hoist by Whittenberg apparently reading “Keep off, no riders'*, was vague and uncertain. The size of the sign was not described, the place on the hoist at which it was located was not described, and in any event the existence of the sign was merely a circumstance to be taken into account in determining whether Whittenberg used due care in the maintenance and operation of the hoist. It is true that on occasion a possessor of property on which there is a dangerous condition may discharge his duty of using due care by giving to his invitees a warning adequate to enable them to avoid the harm. Restatement of Torts, § 343(c). But in this instance the question is, was the warning adequate to enable the injured employees to avoid the harm? In view of the character of the testimony concerning the sign and the other evidence concerning the frequent riding of this hoist by employees of Whittenberg and of Knight for the purpose of loading and steadying equipment being transported on the hoist in the necessary performance of the project, we conclude that there was sufficient evidence to sustain the jury verdict that Whittenberg was negligent.

The next problem to' consider is whether Liberty, as the workmen’s compensation insurer of Knight, has a right to reimbursement from Whittenberg for payments made in the form of workmen’s compensation benefits to the injured employees.

Whittenberg concedes it was held in the cases of Ruby Lumber Co. v. K. V. Johnson Co., 299 Ky. 811, 187 S.W.2d 449, 166 A.L.R. 1215, and Johnson v. Ruby Lumber Co., Ky., 278 S.W.2d 71, that the workmen’s compensation insurer of a subcontractor could recover, by way of an action for common law indemnity, reimbursement from the general contractor whose negligence had caused the injuries to the employees.

Whittenberg argues that we should re-examine the Ruby Lumber Company cases and appears to contend that they were wrongly decided. In this connection Whit-tenberg cites cases from other jurisdictions wherein it was held that the subcontractor and its insurer could not recover from the general contractor indemnity for workmen’s compensation payments made to employees of the subcontractor injured through the negligence of the general contractor.

We have carefully reconsidered our holdings in the Ruby Lumber Company cases and have come to the conclusion that they were correct and proper.

One of the foreign cases relied upon by Whittenberg is Fidelity & Casualty Ins. Co. v. Sears, Roebuck & Co., 124 Conn. 227, 199 A. 93, 117 A.L.R. 565. It is interesting to note that the first of the Ruby Lumber Company cases was annotated in 166 A.L.R. at. page 1221. The Connecticut case relied on by Whittenberg was considered in the annotation. The annotator points out that in refusing to follow the approach of our Ruby-Lumber Company case the Connecticut opinion appeared to confuse the principles of contribution with the principles of indemnity. We have recently had occasion to comment upon the significant distinction between contribution and indemnity. See Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137 (decided February 12, 1965).

Another approach taken by another foreign authority relied on by Whittenberg is contained in the case of New Amsterdam Casualty Co. v. Boaz-Kiel Construction Co., 8 Cir., 115 F.2d 950, in which the court held that the workmen’s compensation statute concerned in that case “swept away” the common law rights of the subcontractor and its insurance carrier to recover indemnity from the general contractor for negligent injury to the subcontractor’s employees.

The view that a workmen’s compensation statute “sweeps away” all civil actions arising out of injuries compensable under workmen’s compensation acts is described as the minority view and is seriously questioned as valid by respectable authority. See 2 Larson, Workmen’s Compensation Law, § 72.64, p. 192.

We therefore conclude that the view we took of the matter in the Ruby Lumber Company cases is sound.

As a further contention in this respect Whittenberg urges that the Ruby Lumber Company cases should not be applied to this case because in the instant case the subcontractor contracted to provide workmen’s compensation insurance and the insurance company which wrote the policy issued a certificate to Whittenberg that the insurance was in effect and that Whittenberg would be notified in the event of cancellation. The Ruby Lumber Company cases held that the subcontractor or its insurer had a right of common law indemnity to recover reimbursement from a general contractor whose negligence caused loss by injury to employees covered by the workmen’s compensation act. This common law right of indemnity “exists independently of statute, and whether or not contractual relations exist between the parties, and whether or not the negligent person owed the other a special or particular legal duty not to be negligent.” Johnson v. Ruby Lumber Co., Ky., 278 S.W.2d 71, 73.

In the instant case, that Knight’s purchase of compensation insurance proceeded from a contractual obligation between Whitten-berg and Knight could not be of significance. Knight, not Whittenberg, was the insured party under the policy. Consequently, Whittenberg’s contention in this respect cannot prevail.

It may be noted in passing that by the existence of the insurance from Liberty to Knight, Whittenberg insulated itself against all liability created by the workmen’s compensation statute excepting benefits payable solely as the result of its own negligence.

We therefore conclude that Liberty had a cause of action against Whittenberg in the form of a common law right of indemnity for reimbursement of workmen’s compensation payments paid to employees of the insured subcontractor where the injuries giving rise to their right to be compensated resulted from the negligence of the general contractor.

The final argument urged by Whitten-berg is that the rule of res adjudicata barred Liberty’s action against it because the summary judgment entered in the suit by one of the injured employees for common law negligence against Whittenberg and in which suit Liberty intervened asserting rights of subrogation terminated the controversy in Whittenberg’s favor and operated as a bar to a new and independent suit by Liberty against Whittenberg.

We have heretofore reached the conclusion that Liberty had a separate independent cause of action against Whittenberg arising out of common law for indemnity in the form of reimbursement for compensation payments made to the two injured employees of Knight who were injured due to the negligence of Whittenberg. We have also concluded that this cause of action was independent of contract or statute. In the prior action one of the injured employees asserted the right to damages by way of an action for negligence at common law against Whittenberg. We are firmly committed to the proposition that under the provisions of KRS 342.060, which is the contractor-subcontractor section of our workmen’s compensation law, the general contractor is in effect made the employer of the employee of the subcontractor for the purposes of the compensation statute and that the general contractor thereby enjoys the legal immunity of an employer from suits by the subcontractor’s employee when the facts are such that he could be made liable for compensation. See McEvilly v. L. E. Myers Co., 211 Ky. 31, 276 S.W. 1068; Jennings v. Vincent’s Adm’x, 284 Ky. 614, 145 S.W.2d 537. Our position in this regard appears to be the sounder result than occurs when it is held, as is done by some courts, that if the facts necessary to the general contractor’s liability are not complete, as when the subcontractor is insured, the general contractor remains a third party subject to common law liability. See 2 Larson Workmen’s Compensation Law, § 72.31, p. 17S.

Liberty’s right to be subrogated to any recovery the injured employee who sued might have made against the general contractor, Whittenberg, is founded on KRS 342.05S, which is the statute relating to suits by employees covered under our compensation act against negligent third parties. The common law right of indemnity is a distinct and separate cause of action. Therefore, we are of the opinion that so far as the operation of the judgment rendered in the prior action by the injured employee against Whittenberg is concerned, it was founded on and asserted a separate and distinct cause of action than was asserted here in the instant case.

One of the essential elements of the rule of res adjudicata is identity of issue. A judgment in one cause of action is not conclusive in a subsequent action on a different cause of action if the questions of fact are not actually litigated and determined in the first action. See Restatement of Judgments, § 68, pp. 293-294, and Brown Hotel Co. v. Pittsburg Fuel Co., 311 Ky. 396, 224 S.W.2d 165.

The problem remains, however, as to whether the doctrine of collateral estoppel applies in that Liberty’s right to recover in the instant action is based upon Whittenberg’s negligence.

In the prior action by the injured employee against Whittenberg, the employee alleged that Whittenberg was negligent. Liberty intervened in that action asserting statutory subrogation. If the question of negligence by Whittenberg had been actually litigated and determined, then under the doctrine of collateral estoppel the question of Whittenberg’s negligence could not have been retried in the instant action. See Restatement of Judgments, § 68, pp. 293-294, comment (a).

It appears, however, that the employee’s action was dismissed by means of a summary judgment in which proceeding Whit-tenberg asserted its non-liability by reason of our construction of the general contractor-subcontractor statute under our Workmen’s Compensation Law already discussed, and Whittenberg was therefore entitled to a dismissal on this ground alone and it was unnecessary to reach the question of whether Whittenberg was negligent.

The record shows that Whittenberg properly presented its protected status under the workmen’s compensation act to the court in the proceedings which resulted in a summary judgment in its favor.

The party asserting the application of the doctrine of collateral estoppel by judgment must plead and prove that the question presented in the instant action was actually litigated and determined by the judgment in the prior action. This Whittenberg did not, and in our view, could not do.

Therefore, since the judgment in the prior action did not operate as a bar under the doctrine of res adjudicata or act as an estoppel on the issue of negligence under the corollary doctrine of collateral estoppel by judgment, it is our view that the trial court properly overruled these defenses and tried the instant action.

In those instances where the third party is answerable to the injured employee covered by our compensation act for his negligence, it may well be that we will not allow parallel actions by the insurer in the form of intervention in the employee’s suit under statutory subrogation and in addition an ac - tion for the separate and independent cause of indemnity by way of reimbursement for compensation payments made, but we need not decide that matter now as it is not presented in this case.

Consequently upon the original appeal of Whittenberg we conclude that the judgment against it was proper and should be affirmed.

We will now address ourselves to the cross-appeal of Liberty complaining of the trial court’s refusal to enter an amended judgment allowing prior interest, on the amount of the verdict.

We need not determine whether Liberty was entitled to the prior interest as a matter of law because we have concluded that as a matter of procedure we are not authorized to disturb the judgment.

It is our view that where failure to include interest is a clerical error it is correctible under CR 60.01, but where no clerical error is shown, and certainly none is shown here, then relief may be had only under the provisions of CR 59 or CR 60.02 or by appeal. See Moore’s Federal Practice, § 60.06(4), p. 4051.

The motion to amend the judgment to allow prior interest could not be considered under CR 59 because CR 59.05 provides that relief under this rule shall be confined to those instances where the motion is served no later than ten days after the entry of the final judgment.

Liberty’s motion to amend the judgment to allow prior interest, if we consider it an application for relief under CR 60.02, cannot be sustained because there was no showing by Liberty to the trial court, and indeed there is no attempt by Liberty to show here, the existence of mistake, inadvertence, surprise or excusable neglect, which showing is required by the provisions of CR 60.02.

We are of the opinion that the judgment of the trial court was proper and we respectfully recommend that it be affirmed both on the original appeal and on the cross-appeal.

The opinion is approved and the judgment is affirmed on both the appeal and cross-appeal.