author: CLAYTON, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. J. C. BARRETT, Appellee.
    No. 5569.
    Court of Civil Appeals of Texas. El Paso.
    March 20, 1963.
    Rehearing Denied April 17, 1963.
    Turpin, Kerr, Smith & Dyer, Thornton Hardie, Jr., Max N. Osborn, Midland, for appellant.
    Warren Burnett, Lee Arnett, Odessa, for appellee.
   CLAYTON, Justice.

From a judgment on jury verdict awarding plaintiff maximum benefits under the Texas Workmen’s Compensation Law for total and permanent disability from injuries suffered September 7, 1959, defendant appeals.

Plaintiff was injured while working as a roughneck on a drilling rig in Crane County, Texas. His claim for Workmen’s Compensation was not filed with the Industrial Accident Board until on or about January 26, 1961, approximately sixteen months after the injuries were sustained. Article 8307, section 4a, V.A.C.S., requires such claims to be filed within six months after the occurrence of the injury. However, “good cause” may be shown for failure to file in time, but “[wjhen a claim is not filed within the statutory period of six months the good cause must continue to the date when same is actually filed” and “[t]he test of good cause for delay is that of ordinary prudence”. Consolidated Casualty Insurance Company v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (S.Ct., 1955).

Plaintiff apparently bases his claim to ■“good cause” for the late filing on two factors: First, that defendant’s claim adjuster was said to have told plaintiff within about ten days after the accident that the latter’s claim was being filed with the Industrial Accident Board (denied by the adjuster), and second, that plaintiff began receiving compensation checks and engaged in a number of conversations with the adjuster culminating in an offer by the adjuster, in January of 1961, of $5,500.00 in settlement of the claim.

The sequence of events was this:

Plaintiff was injured on September 7, 1959.

On or about September 17, 1959 the adjuster for the defendant insurance company went to see the plaintiff and at that time took a statement from plaintiff as to how the accident occurred, which statement was signed by plaintiff. Plaintiff contended that the adjuster told him that he (the adjuster) '“wanted to file an accident claim or report. I believe he called it a claim”. There were two sets of papers that the adjuster filled out and he “insinuated” that he would file one copy with the Industrial Accident Board for the plaintiff. Plaintiff’s wife and stepdaughter were present at the time of this occurrence and testified to the language employed by the adjuster. The wife testified : “He said it was a claim or something to that effect, that he was going to send one to the Accident Board in Austin, and one would be sent to the Midland Office for the files”. The step-daughter testified: “He said that one of the claims went to the Industrial Accident Board and the other went to his file”.

Plaintiff further testified that “shortly” after he was hurt he received a letter from the Industrial Accident Board enclosing two claim forms and advising plaintiff that if he had already filed the claim to disregard the letter. Plaintiff stated that he took the matter up with the adjuster who said “that was all taken care of, and to just disregard those” (forms), which plaintiff did. Plaintiff’s wife corroborated this conversation with the adjuster but nevertheless, on about January 26, 1961 the wife wrote a letter to the Board and enclosed filled-out claim forms.

About a week or two after the visit from the adjuster on September 17, 1959 the plaintiff began to receive from defendant compensation payments in the amount of thirty-five dollars a week. There were seventeen such weekly payments “which included the first two weeks that they had to pick up * * * that they skipped on the first part of it”.

From the time of the accident and continuing until late December of 1960 the plaintiff was receiving medical attention from various doctors under instructions from the claim adjuster and was being reimbursed for necessary travel expense in connection therewith through checks received from the defendant insurance company. Two such checks were introduced in evidence and were dated February 13, 1961.

For some eighteen months after plaintiff’s injuries were sustained the claim adjuster was “negotiating” with plaintiff about settling his case, talking in “terms of a substantial amount of money”. In January of 1961 the adjuster offered plaintiff $5,500.00 in settlement, conditioned upon plaintiff’s waiving any future medical treatment. This offer the plaintiff rejected, and was informed by the adjuster a few days later that defendant company would not pay any larger amount. The next day plaintiff consulted an attorney which resulted in suit being filed.

Defendant, prior to trial and upon learning that counsel for the plaintiff would request the court for permission to go into the matter of the offer in settlement in the trial, filed his motion to exclude such testimony on the ground: 1) that the same would be highly prejudicial, 2) would not be admissible as testimony on any ground, 3) would have no bearing on the case, 4) that if such offer was ever made it was at a time long after the statutory six months had elapsed from the date of the injury and could have no bearing on “good cause” for the delayed filing of claim, and 5) being testimony concerning an offer in compromise, it would be against public policy as tending to discourage such offers. The motion to exclude was overruled by the court and plaintiff’s counsel was allowed to elicit from plaintiff in the trial, over further objection of defendant, that in January of 1961 the adjuster had offered plaintiff $5,500.00 to settle the case.

The offer was undisputed and was not an issue before the jury. The jury found in answer to special issues that the adjuster caused plaintiff to believe that the latter’s claim had been filed with the Industrial Accident Board within six months from the date of injury; that plaintiff believed, up until the time his claim was actually filed, that it had already been filed with the Board by the adjuster; that such belief prevented plaintiff from filing his claim until the time that it was actually filed, and that such belief constituted “good cause”, as that term was appropriately defined by the court, for not filing his claim sooner than it was actually filed. Based upon other jury findings, maximum benefits were allowed plaintiff in the judgment.

In each of appellant’s three points of error complaint is made that the trial court erred in overruling defendant’s motion to exclude all testimony concerning the alleged “offer of compromise” made to plaintiff after the time for filing plaintiff’s claim had elapsed, and in permitting such testimony to go before the jury. If the complained-of testimony constituted an offer of compromise and if it were introduced as an admission of liability on the part of the defendant, it would not have been properly admissible.. 24 Tex.Jur.2d 194, ¶627 and the many cases therein cited. But “although inadmissible as an admission of liability, (an offer of compromise) may be admissible as relevant circumstantial evidence to prove a fact other than that of liability, such as due diligence” etc. 31 C.J.S. Evidence § 286, p. 1046. This rule seems directly applicable to the case at hand, where the defense was being urged that claim had not been filed with the Industrial Accident Board within the time required by law and that “good cause” (or due diligence) did not exist. We have seen how certain payments were made, and how meetings and negotiations were being carried on between the plaintiff and defendant’s adjuster from about the date of plaintiff’s injuries until the very month in which the latter’s claim was actually filed. Plaintiff claimed to have relied upon a supposed statement by the adjuster made shortly after the injuries were sustained that the adjuster was filing the claim. His testimony in this respect, corroborated by his wife and stepdaughter, was believed by the jury which found in his favor on the “good cause” issue. Texas Employers’ Ins. Ass’n v. McDonald, 238 S.W.2d 817 (Civ.App., wr. ref.). The offer in settlement was a further, persuasive circumstance bearing on this issue. We feel that there was no abuse of discretion on the part of the trial court, under all the facts and circumstances, m admitting the complained-of testimony, and such a decision is within the discretion of the court. Texas Law of Evidence, McCormick and Ray, Vol. 2, p. 32, ¶ 1142; Merchants’ Cotton Oil Co. v. Acme Gin Co., 284 S.W. 680 (Civ.App., no wr. hist.); Ditto v. Piper, 244 S.W.2d 547 (Civ.App., wr. ref. N.R.E.); Leija v. American Automobile Ins. Co., 242 S.W.2d 814 (Civ.App., dism.).

Had there been a request on the part of the defendant to limit the purpose for which the testimony might be considered it unquestionably would have been so limited by the trial court, but no such request was made. Fisher Construction Co. v. Riggs, 320 S.W.2d 200 (Civ.App., r. o. g.); 17 Tex.Jur. 361, ¶122.

Finding no error in this record, the appellant’s three points of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    John L. GOWEN, a Minor, b/n/f G. A. Gowen, Appellant, v. Leo F. WILLENBORG, Appellee.
    No. 14081.
    Court of Civil Appeals of Texas. Houston.
    March 28, 1963.
    Rehearing Denied April 18, 1963.

      W. James Kronzer, Houston, and Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellant.
    Russell Talbott, J. S. Covington, Jr., and Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   COLEMAN, Justice.

This is an attractive nuisance case. The trial court rendered a summary judgment in favor of the defendant.

Appellee erected a billboard on leased premises near the intersection of Gulf Freeway and Berkley Street in the City of Houston, Texas. John L. Gowen, a child eleven years of age, attempted to climb the sign on some step-like projections formed by the supporting structure of the sign. When he reached a point near the top of the sign, wasps emerged from a partially concealed nest and stung him. He started climbing down and fell when he missed his footing. As a result of the fall, he sustained serious injuries. The fall was caused by the wasp stings and not by a structural defect in the billboard. Appellee had looked at the sign on several occasions after its completion. The wasp nest was large and the record indicates that it was clearly visible from the ground. Appellee testified that he did not know of the presence of the wasp nest on the sign. Appellant did not allege that appellee had actual knowledge of the existence of the wasp nest.

The rule laid down in Vol. II, p. 920, § 339, of the Restatement of the Law of Torts, has been approved and explained by the Supreme Court of Texas in Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843; Massie v. Copeland, 149 Tex. 319, 233 S.W. 2d 449; and Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587. This section provides:

“A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of' maintaining the condition is slight as compared to the risk to young children involved therein.”

Conditions (a), (c) and (d) are either-satisfied as a matter of law or else a fact issue is raised under the record in this, case. By reason of condition (b) there-can be no liability' unless the possessor knows and realizes, or should know and' realize, that the structure or artificial condition maintained by him involves an unreasonable risk of serious bodily harm to-trespassing children.

It is not contended that a structure-involves an unreasonable risk of harm merely because of the danger of falling, such: danger being open and obvious and known, even to small children. Stimpson v. Bartex Pipe Line Co., 120 Tex. 232, 36 S.W.2d. 473.

In the Eaton case, supra, the court said: “The effect of these late cases is to abolish as to young children the distinction between trespassers, licensees and invitees when the four conditions have been satisfied and to impose on the landowner under such circumstances a duty of ordinary care to protect them from injury. * * ⅜ ” (Emphasis added.)

In Banker v. McLaughlin, supra, the court cites Gulf Production Co. v. Quisenberry, 128 Tex. 347, 97 S.W.2d 166, as authority for the proposition that where a company must have anticipated the presence •of children on its premises and “ * * * knowing of conditions likely to cause injuries to persons coming on the premises, ‘was bound to use the care of an ordinarily prudent person’ to prevent such injuries.”

The court, in Banker v. McLaughlin, supra, also cited Prosser on Torts (1941), “Trespassing Children,” as follows: “The better authorities now agree that the element of ‘attraction’ is important only in so far as it may mean that the trespass is to be anticipated, and that the basis of liability is merely the foreseeability of harm to the child,” (Emphasis added.)

If the duty to use ordinary care to prevent injury to a trespassing child arises from the fact that the trespass is to be anticipated, then the condition causing harm, where there is no actual knowledge, must be such as would have been discovered by a reasonable inspection by the possessor or landowner. The evidence in this case is such as to raise a question of fact as to whether or not the dangerous condition would have been discovered on a reasonable inspection. While no evidence was presented as to the length of time the nest had been attached to the billboard, such evidence could be procured, and the fact that the nest was large and complete would be sufficient to demonstrate existence of a fact issue.

However, the rule set out in the Restatement of Torts and adopted by our courts concerns artificial structures only. The liability of an owner or possessor of land for injuries to children caused by natural conditions is governed by the usual rules relating to trespassers, licensees and invitees. The nest built by wasps is a natural condition and is not in itself dangerous. Knowledge of the location of a wasp nest at most would be knowledge that wasps are likely to be found at that location. Destruction of the nest would not necessarily remove the danger of an attack of the stinging insect at that location. It would remove the warning sign and might or might not cause the wasps to remove themselves to another scene of activity.

Has the child been attacked by the same wasps while attempting to climb another of the billboards located on the property, we would have no difficulty in determining the question of liability of the possessor because as to that structure it could hardly be argued successfully that the artificial structure involved an unreasonable risk of harm to a trespassing child. Generally the law does not require the owner or possessor of land to anticipate the presence of, or guard an invitee against harm from, animals ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality. 4 Am.Jur. 2d, Animals, Sec. 80, et seq.; Restatement of the Law of Torts, Ch. 20.

Artificial conditions, such as farm ponds, frequently become the abode of poisonous snakes, and stinging insects are common in hunting lodges and summer homes, but no cases have been found where a duty of ordinary care has been imposed on the owner or possessor of such premises. Written warnings would be of little practical effect in the case of young children who trespass upon such premises and barriers effective to prevent their access to the premises would be unreasonably burdensome to the possessors in many instances. It has not been determined that public policy requires the imposition of liability in such cases. The presence of dangerous insects or animals in or near an artificial condition or structure, which does not in itself involve an unreasonable risk of death or serious bodily injury to a trespassing child, does not transform such a condition or structure into one involving such a risk. An unreasonable risk of serious bodily injury may be present, but it is not presented by the structure or artificial condition.

The trial court must determine in each case such as this whether or not the property owner or possessor owes a duty to the child. Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449. Here the trial court properly found no duty. In the absence of a duty toward the child, there is no jury issue material to the decision of the case.

The judgment of the Trial Court is affirmed.


author: DENTON, Chief Justice.

text:
    Delbert D. FLOCK, Appellant, v. Wayne KELSO, Appellee.
    No. 7228.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 11, 1963.
    Harris E. Lofthus, Amarillo, for appellant.
    A. Curtis Neal, Amarillo, for appellee.
   DENTON, Chief Justice.

This is an appeal from a judgment in favor of appellee, Wayne Kelso, against Delbert D. Flock in a suit on a sworn account and the foreclosure of a constitutional lien on a dirt grinding machine. Flock originally filed suit against Kelso for damages for the alleged unlawful taking of the machine from Flock’s possession. Kelso filed a cross-action seeking recovery for the labor and materials furnished in manufacturing the machine, and for the foreclosure of a constitutional lien. Based upon the jury’s verdict, the trial court entered judgment in favor of Kelso in the amount of $1,942.69 and for the foreclosure of the lien. Flock was denied recovery on his cause of action, and after his motion for new trial was overruled by operation of law he timely perfected this appeal.

Appellant’s only point of error urged here reads: “The court erred in overruling Flock’s motion for new trial.” By a counterpoint, appellee challenges appellant’s point of error as being in violation of Rule 418, Texas Rules of Civil Procedure, in that it presents no specific complaint for review.

It is well established that Rule 418 requires a point of error to direct the attention of the court to the particular error relied upon, and that such point must not be multifarious or too general. Appellant’s motion for new trial contains eight grounds of alleged error as a basis for setting aside the trial court’s judgment. We are of the opinion the point of error is too general and multifarious to be considered by this Court on appeal. Dallas Fountain & Fixture Company v. Hill (Tex.Civ.App.), 330 S.W.2d 648 (Refused) (NRE); Tindall v. Tacconelly (Tex.Civ.App.), 328 S.W.2d 909 (Refused) (NRE); United States Liability Insurance Company v. Baggett (Tex. Civ.App.), 285 S.W.2d 804 (Refused) (NRE); Carnes v. Kay (Tex.Civ.App.), 210 S.W.2d 882 (NWH). Although we are mindful of the policy of appellate courts to indulge a liberal construction in favor of the sufficiency of a point of error, the statement and argument under the point are not sufficient to remove the obvious defects in appellant’s point of error,

In reviewing the brief, we deduce that appellant is contending there is no evidence to support the jury’s finding that Flock’s loss of the use of the machine was not the result of Kelso’s own action. Assuming the point of error is adequate, we are of the opinion the complaint of “no evidence” is without merit. There was evidence to support the jury’s findings that the machine was taken from Kelso’s possession without his knowledge and consent; that Kelso was not acting with malice in retaking the machine from Flock; and that Flock acted with malice in filing a criminal complaint against Kelso and in sequestering the machine. These findings, supported by the evidence, are sufficient to bring us to the conclusion the finding complained of is supported by the evidence.

The judgment of the trial court is accordingly affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    Donald D. SPENCER, Plaintiff in Error, v. TEXAS FACTORS, INC., Defendant in Error.
    No. 16153.
    Court of Civil Appeals of Texas. Dallas.
    March 22, 1963.
    Rehearing Denied April 19, 1963.

      Dixon, Alley & Petrovich, Travis Alley, Fort Worth, for plaintiff in error.
    Passman & Jones and Bill C. Hunter, Dallas, for defendant in error.
   BATEMAN, Justice.

Plaintiff in error seeks reversal of a money judgment by default rendered against him. Service of citation was had under Rule 106, Vernon’s Texas R.C.P., by serving his wife at his usual place of abode.

He presents a motion for reversal because of his alleged inability to obtain a full and complete Statement of Facts, presenting that since substituted service is authorized by Rule 106 only “where it is impractical to secure personal service” it would have been erroneous for the court below to have signed the order permitting substituted service without hearing and considering evidence proving that it was impractical to Secure personal service, that he was entitled to have this court review such evidence and determine its sufficiency vet non, and that his inability to obtain a statement of what evidence, if any, was pre-' sented and considered by the court entitles him to a reversal. We sustain this motion.

The record before us is far from satisfactory on this point. The order permitting substituted service, which was made by another district judge sitting for the court in which the case was pending, recites that evidence was heard; but this same judge several months later signed a certificate labeled “Statement of Facts” which recited that “no testimony was received by the court prior to the entry of such order and no other evidence being considered by the court other than such motion,” and then several months after that signed another certificate reciting that at the time he certified that he heard no evidence he “had no independent recollection of what evidence, if any, was” received or considered in passing upon the motion for an order authorizing service under Rule 106. He then signed an “Amended Certificate and Affidavit” and an “Order Amending, Correcting and/or Supplementing the Record and Directing Certification and Transmission of Supplemental Transcript to Court of Civil Appeals” in both of which he stated that “Defendant is unable to obtain the Statement of Facts covering the entry of the order authorizing service under Rule 106, T.R.C.P.,” other than as shown by his own amended certificates mentioned above.

The rule authorizing substituted service, being in derogation of the common law and under some circumstances a harsh rule, must be strictly followed. A trial court should not sign an order authorizing such service without hearing and considering evidence of probative value to the effect that it was impractical to obtain personal service. Otherwise, defendants and the courts would be exposed to possible fraudulent allegations of impracticality which could not be supported by proof, resulting in great injustices.

It is obvious from the record before us that it was impossible for plaintiff in error to obtain a statement of facts which would enable this court to review the evidence, if any, and determine its sufficiency to support the order in question. That being true, the judgment must be reversed, and this we do on the authority of 3-A Tex.Jur. 686; Strode v. Srygley, Tex.Civ.App., 342 S.W. 2d 638, err. ref. n. r. e., and Johnson v. Brown, Tex.Civ.App., 218 S.W.2d 317, err. ref. n. r. e.

Reversed and remanded.


text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. James L. HIGHTOWER, Appellee.
    No. 14061.
    Court of Civil Appeals of Texas. Houston.
    March 14, 1963.
    Rehearing Denied April 18, 1963.
    Vinson, Elkins, Weems & Searls, Sam W. Davis, Jr., Houston, for appellant.
    Bill Allen, Houston, Hill, Brown, Kron-zer, Abraham, Watkins & Steely, Houston,, of counsel, for appellee.
   COLEMAN, Justice.

Appellant Insurance Company has appealed from a judgment by which appellee Hightower was awarded compensation under the Texas Workmen’s Compensation Act for total and permanent disability. It is appellant’s contention that there was no evidence to support the finding of the jury that appellee’s disability was permanent, or, in the alternative, insufficient evidence, or that such finding was so against the great weight and preponderance of the evidence as to be clearly wrong.

Appellee’s back was injured when he fell down some stairs. He was immediately carried to Dr. Ralph Liles, who treated him for about six weeks. After Dr. Liles discontinued his treatment, appellee was treated by Dr. Marion J. McCallum for about nine months until the time of this trial. Appellee was examined by an orthopedic surgeon selected by Dr. McCallum and, at the request of appellant, by a specialist designated by agreement of counsel. Neither of these specialists testified at the trial.

Dr. McCallum received Pre-Medical and M. D. degrees from the University of Colorado. He served an internship at the Denver General Hospital, where he had the opportunity to observe, and assist in, the treatment of numerous injury cases. He served in the Air Force as a doctor and treated injury cases. He practiced his profession for some years in Colorado, where he was company physician for three coal mining companies. Since 1949 he has practiced medicine in Harris County, Texas, and he estimated that 15% to 20% of his practice consisted of caring for injuries as distinguished from illnesses caused by disease.

Dr. McCallum testified that the injury suffered by appellee resulted in an injured intervertebral disk permitting pressure on nerve roots. It was his opinion based on reasonable medical probability that the condition was permanent and that treatment other than surgery would result in no permanent improvement. He testified that ap-pellee was not able to perform the usual tasks incident to manual labor in such a manner as to be able to obtain and retain employment.

Appellee testified that during the year prior to his injury he had worked either five or six days in each week with one exception; that he had been with the same employer for four years during which time he had suffered two other injuries, but that he had not filed claims for compensation although he had been paid weekly benefits for a short time while he was unable to work. He testified that he had tried to work to get enough money to buy food and essentials for himself and his wife, who had been forced to undergo a serious operation; that he had secured several positions, but was unable to do the work and either was not retained by his employer or had to quit the job. In the year following his injury, he was able to work only nine weeks.

Appellant contends that Dr. McCallum testified that he was not an expert and that his testimony would amount to no more than a scintilla of evidence. The record reflects that the doctor testified that the operation which he thought would benefit appellee probably belonged to specialists in bone and joint work; that he was not an expert, but that he had assisted in such operations.

The doctor’s testimony was clear and satisfactory. While he admitted that many of the recognized tests used to demonstrate nerve root irritation were negative, and his testimony shows that he had little objective evidence on which to base his diagnosis, these were matters proper for consideration in weighing his testimony but did not render it inadmissible. Dr. McCallum’s experience and training were properly placed in evidence and qualified him to testify to opinions on medical matters as an expert.

The only witness called by appellant was Dr. Liles, who testified that in his opinion appellee would not have been disabled from doing his regular work within a week or ten days after he last saw him. He testified concerning his examination and treatment of appellee and that in his opinion he might have suffered a muscular strain or bruise in the fall. He did not examine appellee after he released him to go back to work.

A careful consideration of all the testimony leads us to the conclusion that the answers made by the jury to the issues submitted by the court are supported by sufficient evidence of probative force and are not so contrary to the weight and preponderance of the evidence as to be clearly wrong. Trinity Universal Insurance Company v. Scott, Tex.Civ.App., 342 S.W.2d 348, writ ref., n. r. e.; Texas General Indemnity Company v. Bledsoe, Tex.Civ.App., 344 S.W.2d 527, writ ref., n. r. e.; American General Insurance Company v. Florez, Tex.Civ.App., 327 S.W.2d 643; Traders & General Insurance Company v. Nored, Tex. Civ.App., 341 S.W.2d 492, writ ref., n. r. e.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    HIDALGO COUNTY WATER IMPROVEMENT DISTRICT NO. TWO et al., Appellants, v. Wilfred J. DEAN et ux., Appellees.
    No. 14060.
    Court of Civil Appeals of Texas. San Antonio.
    March 13, 1963.
    Rehearing Denied April 10, 1963.
    Charles E. Thompson, McAllen, Turner; White, Atwood, Meer & Francis, C. Sidney McClain, Dallas, Strickland, Wilkins, Hall & Mills, Mission, Stafford, Atlas & Spil-man, McAllen, for appellants.
    Robert H. Kern, Jr., McAllen, Black & Stayton, Austin, for appellees.
   MURRAY, Chief Justice.

This is a suit by appellees in the form of trespass to try title, seeking to recover from appellants, title and possession of an undivided one-half interest of the mineral estate in and under “the North 17.75 acres of Lot 3, Block 16, Steele and Pershing Subdivision of lands in Porcion 67, and the East one-half of Porcion 66, Hidalgo County, Texas.” The trial was before the court without the intervention of a jury and resulted in judgment in favor of appellees against appellants for the title and possession of the undivided one-half interest of said minerals, from which judgment the appellants have prosecuted this appeal.

This is the second appeal of this cause. On the former trial, the court granted appellants’ motion for a summary judgment, which judgment was reversed by this Court and the cause remanded for a trial on the merits. Dean v. Hidalgo County Water Imp. Dist. No. Two, Tex.Civ.App., 320 S.W.2d 29. Reference is here made to our former opinion for a more detailed statement of the case.

W. E. Pope is the common source of title to the 17.75 acre tract. This tract purportedly was conveyed by the Water District to W. E. Pope through a sheriff’s deed dated January 5, 1926. In appellees’ chain of title is a tax deed conveying the 17.75 ■acre tract to W. E. Pope. The order of sale was issued out of the District Court of Hidalgo County in Cause No. U-64. It is the contention of appellants that this attempted sheriff’s sale of the 17.75 acre tract was void and conveyed nothing to W. E. Pope, first, because W. E. Pope had conveyed the land to the Water District and paid the taxes before the deed was executed, and second, because the order of sale was functus officio when executed. The trial court properly held that the Water District having caused the order of sale to issue and the land sold at public sale for a consideration of $500.00, which was paid to the Water District, is now estopped to •claim that it was the owner of the land at the time of the sale, that no taxes were due at that time, and that no lien for taxes existed. Peters v. Clements, 46 Tex. 114.

The order of sale was not functus •officio at the time it was executed. The fact that the order was dated on the typewriter December 1, 1924, and the four stricken out and a “5” written with ink over it, did not render the order of sale invalid. The evidence shows nothing more than the four was a mistake and was changed to five.

It will be borne in mind that here we have a collateral attack upon a judicial foreclosure, where no presumptions of irregularity are indulged in — all proceedings in a judicial foreclosure are presumed to be regular. Rotge v. Murphy, Tex.Civ. App., 198 S.W.2d 932; Seymour v. Schwartz, Tex.Civ.App., 172 S.W.2d 138.

Appellants next complain that the sale to W. E. Pope was void because there was no return made by the sheriff on the order of sale. We overrule this contention. It constitutes a slight irregularity, not sufficient to render the sale subject to collateral attack. Harris v. Mayfield, Tex. Com.App., 260 S.W. 835; Tudor v. Orr, Tex.Civ.App., 179 S.W.2d 796; Cockrell v. Steffens, Tex.Civ.App., 284 S.W. 608.

The trial court properly concluded as a matter of law, as follows:

“The water district, having brought the foreclosure suit against W. E. Pope and having prosecuted it to conclusion by having the sheriff convey the property to W. E. Pope in consideration of $500.00 in cash, is estopped to contend that Pope acquired no title through the foreclosure proceeding.” See our former opinion, Tex.Civ.App., 320 S. W.2d 29, 31.

The remaining contentions presented by appellants are sufficiently discussed in our former opinion and it would serve no useful purpose to reiterate them here.

All points raised by appellants on this appeal are overruled and the judgment of the trial court is in all things affirmed.


author: MOREMEN, Judge.

text:
    Carl PRICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    Rehearing Denied May 3, 1963.
    John Y. Brown, Sr., John Y. Brown, Jr., Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Carl Samuel Price, was indicted for the crime of murder, tried in the Pulaski Circuit Court, found guilty of manslaughter and sentenced to ten years’ imprisonment.

The appellant, before the trial began, moved to discharge the entire petit jury panel on the ground that it had not been selected in accordance with the requirements of sections 29.115 and 29.135 of Kentucky Revised Statutes. Subsection (1) of the latter section is, in part:

“At each term of circuit courts having terms, the judge shall, in open court, draw from the drum a sufficient number of names not to exceed sixty, to procure twelve persons to act as grand jurors for the next term of court and to secure not less than twenty-four nor more than thirty-two persons to act as petit jurors for the trial of civil and criminal cases at the next term; record the names upon paper, certify and sign it.”

The requirement that at each term of court the judge shall draw the list in open court for the succeeding term should be particularly noticed. Appellant contends that it was not met.

The testimony of the clerk of the Pulaski Circuit Court was taken and he stated that he was present when the panel was drawn from the wheel. It appears that the drawing was had in the vault of the circuit clerk’s office. The vault is a large room about 30x25 feet. The circuit clerk’s office is on a different floor from the circuit court room, but it is often used by the judge of that court for the purpose of hearing motions, lunacy proceedings and the great proportion of cases which are tried before the court without a jury. The vault adjoins the main circuit clerk’s office. It was shown that both the clerk and his deputy were in the clerk’s office at the time Judge Tartar withdrew the names from the jury wheel.

After hearing this testimony the court overruled the motion and this order was entered:

“This is to certify that the present standing jury and the jury summoned was drawn from the jury wheel in compliance in every respect and conformity of the law thereto. I withdrew the names from the jury wheel, transcribed them and delivered them to the clerk. I have followed to the letter of the law the Court of Appeals,”

and the case was tried.

After the trial, in support of a motion for a new trial, the deposition of Charles Landrum, Jr., an attorney, was taken. He stated that on Saturday, the 18th of August, he went to the courthouse in Somerset. (No one mentioned the year, but it was 1962). After inquiry he learned that the circuit judge was in the vault. He found Judge Tartar seated at a small table with an open jury drum on it. At the time he entered the judge was writing names on a piece of paper — presumably he was transcribing the names of jurors. No names were drawn while he was present. The judge was alone when he entered the vault. On cross-examination Landrum testified that the door to the vault was open and everyone was free to pass in and out. He stated that he himself had attended rule day in this same vault.

We have several times held that in the selection of a jury there must be substantial compliance with the procedural steps outlined in the statute, and that “the right and power to disregard any one of these statutory provisions do not lie within the privilege of the judge of the court.” Williams v. Com., 254 Ky. 277, 71 S.W.2d 626; Kitchen v. Com., 275 Ky. 564, 122 S.W.2d 121; and Bain v. Com., 283 Ky. 18, 140 S.W.2d 612.

While our opinions achieve unanimity in condemning even the slightest irregularity in the selection of a jury, judgments have not always been reversed because of the deviations.

In the Kitchen case the judge read the names drawn by him to the clerk and the deputy clerk of the court in an audible voice while various members of the bar were present in the courtroom, and the names were written by the clerk or his deputy. The opinion carefully pointed out: “We are not reversing this judgment on the ground there was a violation of Sec. 2443 in drawing the names of the grand and petit jurors from the wheel,” but the practice was severely condemned.

In Hopkins v. Commonwealth, 279 Ky. 370, 130 S.W.2d 764, where the ground relied on for reversal was that the panel was not drawn from the jury wheel by the presiding judge in open court and the list of jurors was not delivered by the judge to the clerk in open court, but in the clerk’s office, and where the regular judge filed an affidavit, which stated that he drew the names from the wheel in open court and later delivered the list to the deputy clerk in the clerk’s office, we said:

“This language, taken in connection with section 2241, evidently means that the circuit judge shall deliver the jury list to the clerk in open court. However, we regard this provision of the statutes as directory and not mandatory. If such slight irregularities as this were permitted to be used as an excuse to obtain a new trial, there would be few trials in which a reversible error would not occur. In the absence of any showing that there was a possibility that the jury list had been tampered with, we are of the opinion that the failure of the circuit judge to comply literally with the directions of the statute was not in any way prejudicial to the defendant’s substantial rights.”

In Tai.ence v. Com., Ky., 265 S.W.2d 40, where the charge was made in an affidavit that the judge in drawing the names from the drum had deviated from the meticulous directions of the statute, but, as was done in the instant case, where the judge placed in the record a statement to the effect that he had selected the jurors according to the statutory directions, we said:

“Be that as it may, the statement of the trial judge supported by the presumption of regularity must be accepted as revealing the facts. Hopkins v. Commonwealth, 279 Ky. 370, 130 S. W.2d 764.”

This opinion is of little value to us because the facts concerning the alleged deviation are not set out in the opinion. We presume that such a certification would be conclusive where there is no showing by definite proof that the court had not followed the Instructions contained in the statutes.

In Hopkins v. Com., 279 Ky. 370, 130 S. W.2d 764, the judge made a drawing when court was in session but failed to deliver the list to the circuit clerk in open court. This informality was excused on the ground that it was a “slight irregularity.” The difficulty with the opinion lies not in the decision it embodied but in the use of the words “we regard this provision of the statute as directory and not mandatory.” Although the quoted language is broad we must interpret its meaning in connection with the facts there presented. There was no irregularity until the court, having discovered that the clerk was not present in open court, carried the list to the clerk’s office. We believe the opinion intended that the provision concerning the delivery to the clerk (in an otherwise entirely correct drawing) was “directory and not mandatory” — not the entire section. In the light of many opinions requiring strict adherence to procedural steps designated in the statutes we feel certain that it was not intended that a judge might cavalierly disregard all of them.

When we return to the facts of the instant case and the statute (KRS 29.135), we find a substantial deviation. The statute requires, inter alia, two important steps, (1) that at each term a drawing must be had for the next or succeeding term and (2) it be done in open court.

The terms of the Pulaski Circuit Court are:

2nd Monday in January 24 days

“ “ “ February “ “

1st “ “ May “ “

2nd “ “ June “ “

1st “ “ September “ “

2nd “ “ October “ “

This case was tried at the September term of court. The jury should have been drawn during the June term which began on the second Monday in June and lasted twenty-four juridical days. That term expired on July 7. The drawing was not had until August 18, long after the June term was over. We are of opinion that in this regard the court’s action does not satisfy that portion of the statute which requires that at each term of court the judge shall draw a sufficient number of names to procure jurors for the next term of court.

We are next confronted with defining the meaning of the expression “open court” as used in the statutes. This phrase is somewhat ambiguous and indefinite. Backed by ample authority in Townsley v. State, 103 Tex.Cr.R. SOS, 281 S.W. 1054, it was said:

“The proceedings of court usually occur in the particular room set apart by the commissioners for holding the sessions of court in, but we think if the court is actually in session, that is ‘open’ as distinguished from vacation, recess, or adjournment, an act of the court would not be invalid solely because done in the clerk’s office in the courthouse, and not in the courtroom.”

See also Loke v. State, Tex., 254 S.W.2d 137.

If we accept the foregoing definition it may be seen that the drawing in the vault did not render the act invalid, but under the same definition the act would be invalid because the court was not actually in session.

In Louis Werner Stave Co. v. Marden, Orth & Hastings Co., 2 Cir., 280 F. 601, it was written:

“The expression ‘in open court’ refers generically to the occasion when the judge is hearing a cause or some part thereof in public, in the sense of the right of the public to attend.”

In U. S. v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853, the court held that the term “open court”, in a section of the Naturalization Act was used in contradistinction to a judge sitting in chambers.

In Rush v. State, 253 Ala. 537, 45 So.2d 761, it was held the words “open court” mean that it is open for transaction of business of court at a time when the court can properly exercise its functions. The court appeared to have the opinion that any procedure which did not amount to a “star chamber” session was valid. It was pointed out: “This does not mean that the judge must necessarily be acting in the courtroom. The office of the clerk is a part of the quarters provided for the court.”

A good number of cases are collected in Vol. 29 of Words and Phrases. Nearly all opinions seem to vary somewhat in individual definitions.

The circuit courts have not had full and complete instructions to guide them in the selection of jurors. The statutes are incomplete and lack artistry. The opinions are not unanimous in thought, so it is easy to understand why there has been a variance in procedure among the circuit courts of this commonwealth.

Without engaging further in semantic exercise to determine the meaning of the phrase “open court” we will attempt to-describe the method by which jurors should be selected:

During one term the judge should' draw the jury list for the succeeding term. This must be done at a regular session of the court held on a juridical day. On that day court should be opened in the ritualistic-way and the sheriff or a similar officer should open the court with the legalistic-prayer that has been used from time immemorial. Some time during that day, before court is formally recessed or adjourned, the names should be drawn from the jury wheel, preferably in the presence of the-sheriff and the clerk, at a time when the public is free to come and go. Even the appearance of a trace of “star chamber”' character should be avoided and the act should be performed openly and notoriously. We do not believe that on all occasions it is necessary for the judge to be sitting in the room which has actually been designated as. the courtroom, but if he is not acting in the-designated courtroom itself, it should beat a place which is temporarily devoted to' the uses of the accepted courtroom and at a time when it is generally known that it is. so employed.

The facts in the instant case disclose-that the jury was selected under conditions. far different from those outlined above. There is not the slightest intimation in the record that the honorable judge who drew the jury list deviated from what he believed to be the proper method of selecting a jury. If the list had been drawn during a regular session of court from the bench in open •court, we are certain that the quality of the jury would not have been different.

It is only after the most painstaking lucubration that we have concluded that the highly technical ground such as has been advanced here was sufficient to cause this judgment to be erroneous. The jury system has been almost sacred in our jurisprudence and the general safeguards which are provided must be followed so that there will never be even a slight intimation of disrepute.

The judgment is therefore reversed.


author: PALMORE, Judge.

text:
    William C. LEEP, Appellant, v. KENTUCKY STATE POLICE et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 12, 1962.
    As Modified on Denial of Rehearing April 19, 1963.
    See also 340 S.W.2d 600.

      R. I. McIntosh, Woodward, Hobson & Fulton, Louisville, for appellant.
    Thomas A. Ballantine, Jr., McElwain, Dinning, Clarke & Winstead, Louisville, for appellees.
   PALMORE, Judge.

The question here is whether the evidence before the Workmen’s Compensation Board compelled, as a matter of law, a finding of total permanent disability by .reason of a leg injury, thus eliminating KRS 342.110 as a limitation on the award. Cf. Department of Mines & Minerals v. Castle, Ky.1951, 240 S.W.2d 44.

In February of 1950 the appellant, a state trooper, suffered a severe injury, including a compound fracture, to his leg below the knee. Since that time there has never been a satisfactory union of the bones (nor, evidently, a healing of the skin and other soft tissues), and when the evidence was taken in 1957 amputation of the leg was indicated as the eventual probability. (Had the amputation already occurred the award would, of course, be limited by KRS 342.105. Holt v. West Kentucky Coal Co., Ky.1961, 350 S.W.2d 155.)

At the time of the injury in this case, what is now the first sentence of KRS 342.110(2) read as follows: “In no event shall compensation for an injury to a member exceed the amount allowable for the loss of such member.” But as pointed out in Holt v. West Kentucky Coal Co., Ky. 1961, 350 S.W.2d 155, it was held in Department of Mines & Minerals v. Castle, Ky. 1951, 240 S.W.2d 44, that the limitation did not apply to cases of permanent total disability, and this ruling was followed in Hardy Burlingham Mining Co. v. Sawyer, Ky.1953, 254 S.W.2d 350, and Clark v. Gil-ley, Ky.1958, 311 S.W.2d 391. In 1960 both KRS 342.110 and KRS 342.095 were amended to reflect the law as it had been thus construed. Though we criticized this result (under which the compensation of a claimant 98% disabled by reason of injury to one of the members listed in KRS 342.105 is limited by KRS 342.110, but if he is 100% disabled and there is no severance KRS 342.110 does not apply at all) in the Holt case, in view of the fact that it had now become statutory we did not undertake to rectify it. The construction applicable to the instant case therefore is governed by the Castle decision.

Following his injury the appellant was assigned to office duty as a radio operator. He voluntarily resigned his employment with the state police in December of 1951, and during part of the interim since then he did a different type of work for another employer and earned approximately $4600 per annum before being discharged incident to a reduction in force. This subsequent employment appears to have been a decisive factor in the Board’s finding against total disability, as evidenced by the following excerpt from its opinion:

“ * * * the evidence does not warrant a finding of total disability for work, for he has worked, regularly and in responsible, well paid positions, during a major portion of the time subsequent to the injury.”

But the term “total disability for work” as used in KRS 342.095 has been construed to mean “that if a workman is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired, he is entitled to compensation for total disability.” E. & L. Transport Co. v. Hayes, Ky.1960, 341 S.W. 2d 240, 241. (The writer of this opinion does not believe this construction is justified by the language of the statute, but the majority of the court is disinclined to reconsider it.) Hence the fact that appellant has been able to earn substantial wages at a different type of work was not a dispositive consideration in this case. As we view it, the question was whether he is totally disabled to perform the duties generally required by his calling, that of a state police officer, and if the evidence on that point leaves room for a reasonable difference of opinion the finding of the board must stand.

On this point we think the testimony of the appellant and his physician made a sustainable case of total disability which must prevail unless support to the contrary is provided by the defense testimony of Dr. Charles F. Wood, the crucial portions of which are as follows:

“Q. Doctor, on June 24, 1957 when you took the history and examined Mr. Leep, what would be your opinion as to the percentage of his disability if any to the body as a whole to perform the duties of a highway patrolman” ?
“A. I think in the condition that Mr. Leep was in when I saw him he would be, I would say, unable to function as a highway patrolman to do all of the duties of that job.
“On a percentage basis I would estimate with his cast and with the limitations of his activity due to the right lower extremity being immobilized in the cast, that he would have at least a 75% disability to the right lower extremity which would be somewhere between 35 and 50% disability to the man as a whole, I believe according to the way the leg rates in relation to the body as a whole. [Emphasis added.]
******
“Q. Doctor, would Mr. Leep be able to take or to to do any physical exercise so far as being able to stand on his feet for any considerable length of time” ?
“A. I should think he would be limited pretty much to sedentary work.”

Dr. Wood’s use of the qualifying language, “according to the way the leg rates in relation to the body as a whole,” in estimating percentage of disability indicates to us that he was speaking in terms of overall physical impairment rather than the appellant’s disability as a police officer. This is emphasized by his subsequent statement that appellant “would be limited pretty much to sedentary work.” Therefore, the 35% to 50% estimate was not responsive to the question and does not support the board’s conclusion that appellant’s total permanent impairment, within the meaning of KRS 342.095, is but 50%.

There are, of course, certain specialized duties in the scope of police work that can be performed in the office or laboratory and are “sedentary” in nature, but it seems to us that when a man is permanently crippled and reduced to sedentary work his ability to secure employment as a police officer is virtually at an end, and if that was his line of work he is totally disabled within the meaning of KRS 342.095. Cf. Olson v. Triplett, 1934, 255 Ky. 724, 75 S.W.2d 366, 367, 369.

Upon the whole case we find no substantial evidence to support the board’s finding that appellant’s permanent disability was less than total.

Reversed with directions that a judgment be entered on the basis of total permanent disability, subject to proper credits as indicated by the record.


author: CROSS, Judge.

text:
    Tillie B. STEIN, Administratrix of the Estate of Oscar Stein, Deceased, Appellant, v. Oscar C. BRUCE and Ruth Y. Bruce, Respondents.
    No. 23675.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Harry T. Limerick, Jr., and James A. McGee, Columbia, for appellant.
    George A. Spencer and Roger D. Hines, Columbia, for respondents.
   CROSS, Judge.

Plaintiff administratrix appeals from the trial court’s order and judgment sustaining defendants’ motion to dismiss her petition on the ground that it fails to state a cause of action upon which relief can be granted.

The petition is in two counts. Count one contains allegations to the following effect: Plaintiff is the administratrix of the estate of her deceased husband, Oscar Stein, by authority of appointment made by the Orphans’ Court of Philadelphia, Pennsylvania. On or about September 9, 1954, Oscar Stein entered into a real estate sales contract with agents acting on behalf of defendants whereby he agreed to purchase property located in the State of Pennsylvania for the total sum of $19,000.-00. The contract provided for a total down payment of $1900.00 and required a final settlement by the payment of the purchase price balance of $17,100.00 on or before December 9, 1954. In so providing, the parties stipulated in the contract that “Said time is hereby agreed to be the essence of the agreement”, and that, “Should the buyer fail to make settlement as herein provided, the sum or sums paid on account are to be retained by the seller, either on account of the purchase money, or as compensation for the damages and expenses he has been put to in this behalf, as the seller may elect”. The contract also contains the following clause: “This agreement to extend to and' be binding upon the heirs, executors, administrators and assigns of the parties hereto”.

Oscar Stein made the $1900.00 down payment as was agreed but did not pay the purchase price balance on or before December 9, 1954, as the contract provided. Instead, he entered into a supplemental' agreement with defendants whereby, in consideration of $1000.00 paid to them, the closing date of the sale was extended to December 31, 1954, and it was agreed “to arrange for a loan of $6000.00”. Oscar Stein died on December 24, 1954.

Plaintiff further alleges in count one that under the laws of Pennsylvania it was impossible in the ordinary course of administration to have appointed an administratrix for the estate so as to “close the deal” as agreed by deceased; that plaintiff widow, of Jewish faith, in the observance of a Jewish ritual of mourning, was required to remain in the house seven days after her husband’s death; that after letter of administration were granted to plaintiff on January 4, 1955, her attorney’s request for an additional extension of time for fulfillment of the contract was refused by defendants; that thereafter plaintiff offered to purchase the property under the contract terms, but learned that it had been sold to another purchaser for $19,000.00; that on January 26, 1955, plaintiff demanded the return of the total sum of $2900.00, and defendants refused to return that sum or any part of it. The prayer of count one is a naked request for judgment against defendants in the sum of $2900.00, with interest, and for costs.

The allegations of count two are identical with those set out in count one except for the addition of one further paragraph to the effect that if there was a breach of the contract because of the buyer’s untimely death and the inability of the estate to carry out the contract according to its terms, “then it would he a penalty and unconscionable” for the defendants to retain the $2900.00 since the property was resold for the same sale price within a short space of time. Count two contains the alternative prayer for judgment, “if it is determined there was a breach of contract”, for return of the $2900.00 paid under the contract (s), less any actual damages sustained by defendants as a result of the contract’s breach.

Preliminarily, we deem it appropriate to say of count one that it contains no allegation that defendant breached the contract or that plaintiff was damaged. Plaintiff merely prays for judgment without pleading any specific legal justification therefor. Nonetheless, plaintiff contends that count one states a cause of action, first, on the theory that there was no breach of the contract on her part or by the original vendee. Plaintiff argues that the time for performance of the contract was extended by her husband’s death because “certainly the delay caused by a man dying could not be considered a wilful breach of contract”. Therefore, says plaintiff, she is entitled to the return of the entire $2900.00.

Plaintiff’s view of the law in respect to the effect of death of one of the parties to a contract is not in harmony with settled legal principles. It is the general rule that when a person by his contract charges himself with an obligation possible to be performed, he must perform it, unless its performance is rendered impossible by the act of God, by the law, or by the other party. In case a party desires to be excused from performance in the event of contingencies arising, it is his duty to provide therefor in his contract. 17 C.J.S. Contracts § 459, pp. 946-947; Bronstein v. First National Bank of Pittsburg, 30 Pa.Dist.R., 177; Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742. In the last cited case it is stated that “if a party, by his' contract, charge himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him”.

It may be conceded that, as a general rule, contracts to perform personal acts are considered as made on the implied condition that the party shall be alive and capable of performing the contract, so that death or disability will operate as a discharge. 17 C.J.S. Contracts § 465, p. 957. However, the foregoing rule does not apply where the acts are of such a character that they may as well be performed by others, as by the promisor’s personal representatives, or where it is apparent from the terms of the contract that performance by others was contemplated. The death of a party does not excuse nonperformance of a contract embodying a personal right which passes to the personal representatives of the deceased party. 17 C.J.S. Contracts § 465, p. 959; In re Book’s Estate, 297 Pa. 543, 147 A. 608; Young v. Gongaware, 275 Pa. 285, 119 A. 271; In re Troutwine’s Estate, 117 Pa.Super. 525, 178 A. 302.

The contract in this case did not require Oscar Stein to perform any act of a personal nature. Furthermore, the contract clause reading, “This agreement is to extend to and be binding upon the heirs, executors, administrators and assigns of the parties hereto”, clearly reveals that the parties intended, in the eventuality of either’s death, that the agreement would be performed on his behalf by one (or more) of the persons named in the quoted provision. Therefore, it must be held that when Oscar Stein died the contract became binding upon this plaintiff as his successor. The unfortunate death of Mr. Stein did not halt the contract’s operation, or nullify its specific provision that “time (was) to he of the essence”. It was still incumbent upon the administratrix to satisfy the terms of the agreement within the time agreed upon by the original parties.

Plaintiff has exhibited no authority to the effect that the time for performance of a contract may be extended because of the death of a contracting party and the resulting necessity for and delay incident to administration. Purdon’s Penna. Statutes Annotated, Title 20, Sections 320.501 and 320.603, cited by plaintiff, do not so provide. Section 320.501 merely provides that a personal representative has the right to take possession of and administer the decedent’s estate. The general import of Section 320.603 is that an action to enforce any right or liability which survives a decedent may be brought by or against his personal representative. These provisions are no more than legal declarations of the rights and duties which the parties to the contract provided for by their own agreement. Plaintiff also cites McDaniel v. Rose, Mo.App., 153 S.W.2d 828. The case is not in point. The contract considered there was for personal services to be rendered to the decedent, and the court held that it was unenforcible against the estate after the decedent’s death.

We find no merit in the contention above considered.

Plaintiff additionally argues that count one of the petition states a cause of action on the ground that it alleges facts from which it can be found that the sum named in the contract as liquidated damages is unreasonably large, and that it must therefore be considered as a penalty and void. Under such findings, plaintiff insists, she would be entitled to recover of defendants the entire “down payment” of $2900.00. The contract in question was executed in Pennsylvania and the land was located in that state. All the parties to the contract lived in Pennsylvania. Therefore, our determination of the instant question depends upon whether the down payment in issue is held to be liquidated damages or a penalty under law applicable in the State of Pennsylvania. The issue is a question of law to he resolved by our construction of the contract. 25 C.J.S. Damages § 102, p. 657; Laughlin v. Baltalden, Inc., 191 Pa.Super. 611, 159 A.2d 26.

The term “liquidated damages” signifies the damages, the amount of which the parties to a contract stipulate and agree, when the contract is entered into, shall be paid in case of breach. As distinguished from liquidated damages, a penalty is a sum inserted in a contract, not as a measure of compensation for its breach, but rather as a punishment for default, or by way of security for actual damages which may be sustained by reason of nonperformance, and it involves the idea of punishment. 15 Am.Jur., Damages, Sec. 240, p. 671.

In determining whether contractual provisions are to be interpreted as providing for liquidated damages or for a penalty, the courts have enumerated various tests, criteria and factors to be considered. In the recent case, Laughlin v. Baltalden, Inc., 191 Pa.Super. 611, 159 A.2d 26, the Supreme Court of Pennsylvania restates the rules generally applicable to the present inquiry, as follows:

“The name by which such a clause may be called is but of slight weight, and the controlling elements are the intention of the parties and the special circumstances of the case. Keck v. Bieber, 148 Pa. 645, 646, 24 A. 170. As restated by the Supreme Court in Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 146 A.2d 714, 717, the question is to be determined ‘by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject matter and its surroundings; and that in this examination we must consider the relation which the sum stipulated bears to the extent of the injury which may be caused by the several breaches provided against, the case or difficulty of measuring a breach of damages, and such other matters as are legally or necessarily inherent in the transaction.’ See also, Emery v. Boyle, 200 Pa. 249, 49 A. 779; Vrooman v. Milgram, [124 Pa. Super. 145, 188 A. 538] supra. Real estate transactions, involving breaches in performance, are peculiarily within that class of cases where the measure of damages is difficult to ascertain. It is for that very reason that the practice has developed of inserting in sales agreements a sum certain, agreed to by the parties, as the amount which will be considered as compensation for a breach in performance. This may be the amount of the deposit or hand money, or it may be a sum in a lesser or greater amount, depending upon the consideration involved. Generally, we have held that where a purchaser repudiates an agreement of sale of real estate containing a provision for liquidated damages, the vendor is entitled to the sum agreed upon as liquidated damages. Tudesco v. Wilson, 163 Pa. Super. 352, 60 A.2d 388. Where the obligation to purchase has been repudiated, especially where new construction is involved, the vendor usually has the continuing obligation of paying interest on any construction loan, insurance, taxes, broker’s commission, maintenance charges and utilities until the property is actually sold”.

The foregoing quoted statement is essentially a composite of judicial expression contained in earlier Pennsylvania cases which include Keck v. Bieber, 148 Pa. 645, 24 A. 170; Kunkle et al. v. Wherry, 189 Pa. 198, 42 A. 112; Kraft v. Michael, 166 Pa.Super. 57, 70 A.2d 424; Lichetti v. Conway, 44 Pa. Super. 71; Ellis v. Roberts et ux., 98 Pa. Super. 49; and Sautter v. Rowland, 285 Pa. 212, 131 A. 733.

The clear language of the contract and the circumstances surrounding the transaction import that the parties intended to stipulate for the retention of the down payment sum as liquidated damages and not as a penalty. That they so intended is strongly supported by the fact that the sale of real estate was the subject matter of the contract. “Damages arising from a breach of a contract for the purchase or sale of real estate are usually so uncertain and difficult of ascertainment that the tenancy of the courts generally has been to sustain covenants of the parties liquidating the damages in such cases, unless they are unconscionable or grossly disproportionate to the injury provided against”. Ellis v. Roberts et ux., 98 Pa.Super. 49. And, as the court said in Lichetti v. Conway, 44 Pa.Super. 71, “Of all facts difficult to establish, however, the value of land is one of the most difficult; in many neighborhoods sales of land are not frequent and no two persons will precisely agree as to the value thereof. Covenants of the parties liquidating the damages in such cases, when not unconscionable, will be enforced by the courts”. Under the foregoing principles of law which govern our deliberations, we must assume that the actual damages resulting from the breach of the real estate sales contract in this case are uncertain in amount and difficult to ascertain or prove, particularly since there is nothing in the contract that furnishes a guide for the determination of damages. Therefore, it will be our duty to hold that the stipulated sum is for liquidated damages unless we determine it to, be unreasonable in amount as a forecast of probable damages and disproportionate to the amount of damages that could probably result from the breach. We next consider that question.

The amount stipulated in the contract as liquidated damages to be forfeited in event of its breach is the sum of $1900.-00 — exactly 10% of the purchase price. It is not, as plaintiff assumes, the sum of $2900.00. The sum of $1000.00 paid by Oscar Stein on (or about) December 9, 19S4, three months after the contract was executed, did not represent a stipulated down payment nor was it stipulated to be a sum representing liquidated damages. That sum was paid to defendants as consideration for the extension of time granted for performing the contract — the price of forbearance on the part of defendants from declaring a forfeiture on the part of the purchaser at the termination of the original three month contract period.

We do not believe that an amount representing 10% of the total purchase price is an unreasonable provision for liquidated damages in this case, or that it is disproportionate to the probable damages defendants suffered by the breach of the contract. It is apparent from the record that defendants had engaged real estate agents to sell the property and that the sale was effected through them. It is a reasonable inference that defendants were obligated by contract to pay those agents a commission for selling the real estate, that the commission was in fact paid, and further, that it represented a substantial portion of the 10% down payment retained after the breach. Furthermore, defendants were burdened by the contract for almost four months. During that interim their property was necessarily “off the market”. They were constrained by the contract to reject all other offers of purchase, and forego any opportunity presented to sell it for a higher price. Meanwhile, they were subject to the outlay of money for maintenance of the property and for any continuing obligation such as interest, insurance, taxes, maintenance charges and utilities. Additionally, defendants were deprived of the use of their money and the opportunity of its investment.

We find ample precedent in Pennsylvania cases for ruling that 10% of the purchase price is a reasonable stipulation for liquidated damages. See: Kraft v. Michael, 166 Pa.Super. 57, 70 A.2d 424; Tudesco v. Wilson, 163 Pa.Super. 352, 60 A.2d 388; Sautter v. Rowland, 285 Pa. 212, 131 A. 733, and Laughlin v. Baltaldin, Inc., supra.

We have duly considered the cases and authority cited by plaintiff, but do not find them persuasive on the present question. Plaintiff cites certain sections of statute law from Purdon’s Penna. Statutes Annotated and urges them as authority for holding that the down payment in this case is a penalty and therefore void. The cited statutes are a part of Pennsylvania’s Uniform Commercial Code which applies only to the sale of personal property. We reject them as authority on the issue in this case arising from the sale of real estate.

In view of all the foregoing, it is our conclusion that count one is barren of any allegation upon which relief can be afforded plaintiff.

What we have said relative to the sufficiency of count one necessarily disposes of plaintiff’s contention that count two states a cause of action. The gravamen of count two is that the retention of the stipulated down payment sum as liquidated damages would be unconscionable, and that such sum amounts to a penalty instead. Since we have decided these questions otherwise, it is also our ruling that plaintiff has stated no cause of action in count two.

One additional issue has been raised by defendants. They contend that plaintiff has no legal capacity to institute suit in Missouri. Defendants insist that plaintiff’s authority under letters of administration granted in the State of Pennsylvania does not include the extraterritorial power to prosecute an action in a foreign state, and that the State of Missouri has not provided by law that she may bring suit in the courts of this state. However, it is not necessary that we decide the question, since it has been determined that plaintiff alleges no cause of action in her petition.

The judgment is affirmed.

All concur.

      . See: Annotation, Provision in land contract for forfeiture of payments as one for liquidated damages or penalty. 6 A.L.R.2d 1401.


text:
    STATE of Missouri at the Relation of Floyd SUMMERS et al., Relators-Appellants, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Respondent.
    No. 23565.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, for appellants.
    Glenn D. Evans, Thomas J. Downey, Jefferson City, for respondent.
   CROSS, Judge.

This is an appeal, by 152 residents of Montgomery County, from the order and judgment of the Circuit Court of Cole County dismissing their petition for a review of certain orders entered by respondent Missouri Public Service Commission in three cases originating before that agency, in which they participated as relators, petitioners or interested parties. Two of the cases are in the nature of applications by two contesting telephone companies for authority from the Commission to render service in the general area of appellants’ residence, which formerly had been served by a mutual company. The third case was filed by appellants and amounts to an application for the Commission’s order to require a third telephone company to provide its services in the area. We identify these proceedings in the order of their filing with the Commission.

Case No. 14,613 was filed on December 28, 1960, by the Midwestern Telephone Company, requesting an extension of its existing certificate authority so as to include the desired area. Thereafter, and on January 16, 1961, the Bellflower Telephone Company (a mutual company) filed Case No. 14,603 as an application for a certificate of convenience and necessity to serve the disputed territory. The Commission consolidated those two cases, held a joint hearing thereof on February 21, 1961, and took the matters heard under advisement. After this hearing and before any decision, the Bell-flower Company moved to reopen its case (No. 14,603) for the introduction of additional evidence. That motion was denied by the Commission.

The appellants entered this controversy on March 15, 1961 — after the joint hearing of the consolidated Midwestern and Bell-flower cases, and before any decision or order theréin — by filing a petition with the Commission asking “that the public in the area surrounding Bellflower and including the disputed territory, be given an opportunity to be served out of Montgomery City, their county seat, by the Southwestern Bell Telephone Company”. The proceeding so arising on appellants’ petition (the third case) was designated by the Commission as Case No. 14,655. Pursuant to the petition, the Commission “asked Southwestern Bell Telephone Company to satisfy the request for telephone service out of Montgomery City and the Southwestern Bell Telephone Company asked for further time until May 1, 1961 to satisfy the request”. On March 22, 1961, appellants filed a motion in that case requesting the Commission to defer any decision in the consolidated cases (Midwestern’s No. 14,613 and Bellflower’s No. 14,603) until after the hearing of appellants’ application to require the rendition of service by Southwestern Bell.

On March 31, 1961, the Commission denied Bellflower’s application to reopen Case No. 14,603, and likewise denied appellants’ motion to defer decision of Midwestern and Bellflower’s applications in Cases No. 14,-613 and 14,603, until a hearing was held on appellants’ application seeking telephone service from Southwestern Bell. Also, on the same day, the Commission decided Cases No. 14,613 and No. 14,603 on their merits by issuing a report and order approving the application of Midwestern to serve the disputed territory and denying Bellflower’s application.

On April 14, 1961, appellants filed their motion praying the Commission to set aside all its orders entered on March 31, 1961, and to grant a rehearing, in all three cases. That motion was denied by the Commission on April 17, 1961. In support of the motion it is alleged therein that the Commission’s orders were arbitrary, illegal, unlawful, improper, unjust and unreasonable for reasons which are also incorporated in appellants’ petition for certiorari or review which was thereafter filed in the circuit court. The motion to set aside the orders made on March 31, 1961, and for a rehearing in all the cases was denied by the Commission on April 17, 1961.

In due time, and on May 1, 1961, appellants petitioned the Circuit Court of Cole County for a review of all three cases by filing therein their pleading entitled “Petition for Writ of Certiorari or Review” in which they pray that court to determine the reasonableness, lawfulness and legality of the Commission’s orders, above noted, pray that they be granted a rehearing in “said Case No. 14,655, Case No. 14,613 and Case No. 14,603”, and further pray the issuance of a writ of certiorari or review commanding the Commission to certify to the circuit court complete transcripts of the record of proceedings in each of the three cases.

As supporting grounds for the relief prayed in appellants’ petition for review, they allege therein that the orders of the Commission were “arbitrary, illegal, unlawful, improper, unjust and unreasonable” because (a) the decisions in the consolidated cases (No. 14,613 and No. 14,603) made after hearing only the evidence of Midwestern and Bellflower, are untimely and premature, since it would be “in the public interest for respondent to hear the 152 petitioners and relators (on their request for service by Southwestern Bell) before rendering a decision”; (b) inasmuch as a majority of the patrons in the area affected want to be served out of their county seat by Southwestern Bell, they should be granted an opportunity to be heard before the Commission decides the whole matter; (c) the Commission's own files and records disclose that out of approximately 90 houses in the disputed territory, only 4 prospective patrons want Midwestern service, while 38 have signified they want to be served by Southwestern Bell, and that, therefore, the grant of authority to Midwestern is a denial to the majority of the people of an opportunity to obtain telephone service from the company they prefer; (d) the allocation of the area to Midwestern without hearing evidence in Appellants’ Case No. 14,655 has the effect of denying their application for service by Southwestern Bell without an opportunity to be heard, for the reason that the prior grant of authority to Midwestern would be irrevocable, “so that any hearing coming later on the same or similar issues comes too late to grant any relief as requested by Relators and Petitioners in Case No. 14,655”. Appellants further allege that because of the reasons above set forth, they were denied a hearing before the Commission, all in contravention of the law and the Constitution of Missouri.

As additional grounds to support the petition for review, appellants have incorporated therein, by reference, the allegations that were specifically set forth in their motion addressed to the Commission to set aside all orders made in the three cases and to grant rehearings therein. Included in those allegations are averments to the effect that the Commission, in the entry of certain of the orders challenged, made findings of fact that were not supported by and were contrary to the evidence ; that the Commission erred in stating “Conclusions” in support of those orders that were not justified by the record; that Midwestern’s facilities are inadequate; that it often uses old, worn and second hand equipment; that it uses trees a great deal instead of poles; and, that its service heretofore rendered has not been satisfactory to its patrons.

Forthwith upon the filing of the described petition for review, the trial court issued its writ of certiorari or review and ordered the Commission to certify and return to it a full and true copy of the record in Cases No. 14,655, 14,613 and 14,603.

Thereafter, the respondent Commission filed its motion to dismiss appellants’ petition for review and to quash the writ of certiorari or review issued by the circuit court. In support of the motion it is alleged generally that the petition for review was untimely, under applicable law, because there had not been a “final determination of the subject matter of the proceedings before the Commission”. However, the only specific allegation to support the general averment of “untimeliness” is that “inasmuch as the Commission has not acted on the merits in Case No. 14,655, a Writ of Review to determine the lawfulness or reasonableness of the Commission’s Order, as contemplated by the statutes, is premature”. There is no allegation that appellants’ petition for review is untimely as to the consolidated cases of Midwestern and Bellflower (Cases No. 14,613 and No. 14,603) or that there has not been a final determination of those proceedings before the Commission. On the contrary, the Commission specifically admits in its motion that “Final orders have been entered by the Commission in cases numbered 14,603 and 14,613, and a review for the purpose of determining the lawfulness and reasonableness of the orders entered in these cases is timely”.

After hearing the motion to dismiss, the circuit court entered the following order: “Thereafter, on September 26, 1961, the Court, again considering presentation of counsel and being now fully advised in the premises, finds the issues for the respondent and against the relators, and grants respondent’s motion to dismiss”. We interpret the foregoing as an order quashing the writ of certiorari or review and dismissing appellants’ petition on which it was issued. And, since the trial court specified no reason for such action, we assume that the order was based on the only specific ground of complaint contained in the motion to dismiss, to-wit: that the petition for review is premature as to Case No. 14,655.

This appeal presents only one question for our consideration: whether the circuit court erred in quashing the writ and dismissing the petition for review.

In resolving the issue, we first consider whether appellants are parties who are legally entitled to petition for judicial review of the three cases. We are apprised by the fact allegations before us that appellants are the original petitioners who initiated Case No. 14,655. Appellants entered Cases No. 14,613 and 14,603 by intervention and for the purpose of filing their motions for rehearing in those proceedings. That procedure was authorized by Section 386.500, which provides, in part, as follows:

“After an order or decision has been made by the commission any corporation or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, and the commission shall grant and hold such rehearing, if in its judgment sufficient reason therefor be made to appear;”.

Under clear rulings of the Supreme Court, appellants, as members of the general public and telephone utility patrons in the disputed area, had the right to institute Case No. 14,655 as interested parties, and also had sufficient interest in Cases No. 14,613 and No. 14,603, to justify their intervention as parties to those proceedings. In State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W. 2d 40, the court said: “Considering the Public Service Commission Act as a whole, it seems apparent that parties to cases before the Commission, whether as complainants or intervenors are not required to have a pecuniary interest, or property or other rights, which will be directly or immediately affected by the order sought or even its enforcement. The reasonable construction seems to be that the interest necessary to authorize intervention should be the same as that required to become a complainant upon whose complaint a case is commenced. Any local partisan interest in the situation involved, such as a customer, (or) representative of the public in the locality or territory affected ***is***a sufficient basis for intervention.” It necessarily follows that when the Commission denied the motions for rehearing in each of the three cases, appellants were interested parties to those proceedings, and, as such, were vested with all rights afforded them by the law to petition for and be accorded a judicial review of the Commission’s final orders and decisions. “The commission and each party to the action or proceeding before the commission shall have the right to appear in the review proceedings.” State ex rel. Consumers Public Service Co. v. Public Service Commission, supra.

It is provided by Article V, Sec. 22 of the 1945 Missouri Constitution, V.A.M.S., that all final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi judicial and affect private rights “shall be subject to direct review by the courts as provided by law”. The quoted provision guarantees the right to judicial review, but leaves it to the legislature to provide the method of such review. Warnecke v. State Tax Commission, Mo.Sup., 340 S.W.2d 615; also see Ward v. Public Service Commission, 341 Mo. 227, 108 S.W.2d 136; State ex rel. Burns v. Stanton, Mo.App., 311 S.W.2d 137.

Pursuant to the cited constitutional guaranty, the legislature has made provision for judicial review, by the circuit court, of final orders and decisions of the Public Service Commission, by the enactment of Section 386.510, V.A.M.S. That statute is essentially definitive of appellants’ rights in this controversy. We quote, in part, therefrom:

“Within thirty days after the application for a rehearing is denied * * * the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review (herein referred to as a writ of review) for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined. * * * Such writ shall be made returnable not later than thirty days after the date of the issuance thereof, and shall direct the commission to certify its record in the case to the court. On the return day the cause shall he heard by the circuit court, unless for a good cause shown the same be continued. No new or additional evidence may be introduced upon the hearing in the circuit court but the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it. The commission and each party to the action or proceeding before the commission shall have the right to appear in the review proceedings. * * * The circuit courts of this state shall always be deemed open for the trial of suits brought to review the orders and decisions of the commission * * *”. (Emphasis supplied.)

Inasmuch as appellants are interested parties within the meaning and intendment of Section 386.510 (as we have demonstrated), and have invoked that statute by filing their petition for review within the time prescribed therein, therefore, it has become incumbent upon the circuit court to do and perform all judicial acts commanded of it by the enactment. It has become the mandatory duty of that court to issue its writ of review in each of the three cases which may have been finally decided by the Commission, to review such causes on the evidence and exhibits introduced before the Commission, to determine the reasonableness and lawfulness of the final orders and decisions made therein by the Commission, and to render judgment accordingly, and in the public interest.

There has been no final order or decision in Case No. 14,655 — appellants’ application seeking telephone service from Southwestern Bell. No hearing has been held in that proceeding from which a record could be certified to the circuit court. An attempted appeal or review at this time is premature. We necessarily rule that appellants’ petition for review does not establish their entitlement to a review of Case No. 14,655.

We rule otherwise as to consolidated Cases No. 14,613 and No. 14,603. It is clearly apparent from appellants’ pleading, and stands confessed by the Commission, that final decisions have been rendered in those proceedings and that “a review for the purpose of determining the lawfulness and reasonableness of the orders in these cases is timely”. It is conclusively established that appellants are entitled to have a review of the consolidated cases by the circuit court in accordance with the procedure afforded by Section 386.510.

Notwithstanding, the Commission undertakes to defend the dismissal of review proceedings as to the consolidated cases by suggesting that appellants may have a review of those cases by intervening in another review proceeding wherein Bellflower has petitioned the Circuit Court to review Cases No. 14,613 and No. 14,603 (Bell-flower’s petition for review was filed on May 15, 1961 — fourteen days after the filing of appellants’ petition). We find no merit in that suggestion. Appellants were first to institute review proceedings under the provisions of Section 386.510. When they filed their petition therefor on May 1, 1961, they became entitled to all the remedial relief afforded them by the Constitution and the cited statute. The fact that Bellflower thereafter instituted a like proceeding does not in any degree affect or diminish appellants’ legal right to maintain the physical structure of their own proceeding and to prosecute that proceeding to such a termination as the law provides. It is not incumbent upon appellants to file still another pleading and endeavor to intervene in Bell-flower’s review proceedings to obtain the relief to which they are entitled under their own petition. To permit the dismissal of appellants’ valid review proceedings on the theory that they might intervene in Bell-flower’s review proceedings would amount to nullification of Section 386.510 and the constitutional guaranty under which that statute was enacted. However, it is not our intention, by anything we have heretofore said in the premises, to suggest that the circuit court may not, in its discretion, consolidate the two review proceedings for a joint hearing thereof.

We conclude that the judgment should he reversed and the cause remanded with directions to the circuit court that it (1) set aside its order granting respondent’s motion to dismiss appellants’ petition for review; (2) re-issue its writ of certiorari or review directing the Public Service Commission to certify and return to the court a full and true copy of the record in each of Cases No. 14,613 and 14,603; (3) hear each of said causes in the manner provided by law, determine the reasonableness or lawfulness of the orders and decisions rendered therein by respondent and enter judgment accordingly; and (4) remand Case No. 14,655 to the Public Service Commission for such disposition as the law provides.

It is so ordered.

All concur.