author: STEPHENSON, Justice. HIGHTOWER, Chief Justice.

text:
    Frazier ESCO, Appellant, v. ARGONAUT INSURANCE COMPANY, Appellee.
    No. 6786.
    Court of Civil Appeals of Texas. Beaumont.
    June 16, 1966.

      Adams & Browne, Beaumont, John T. Lindsey, Port Arthur, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a case brought under the Workmen’s Compensation Law. Judgment was rendered for plaintiff based upon a compromise settlement agreement. The parties will be referred to here as they were in the trial court.

The parties announced ready for trial and a jury was selected. The plaintiff had been giving testimony, but following a recess, the attorneys informed the court that the case had been settled. The jury was discharged and the court proceeded to hear further testimony from plaintiff as to the terms of the settlement. Following such testimony the court said: “All right, I will approve the settlement.” All of this transpired on Monday, March 30, 1964, and on Friday of the same week plaintiff told his attorney who told defendant’s attorney that he was not willing to accept such settlement. At such time, the releases had not been executed, the written form of the judgment had not been approved by the attorney for plaintiff and had not been signed by the court. Defendant filed a motion for judgment and following a hearing a judgment was entered November 23, 1964, for plaintiff for the amount that had been agreed upon and announced to the court back on March 30, 1964.

A second attorney represented plaintiff in resisting defendant’s motion for judgment. Evidence was heard by the trial court on such motion, which is a part of the record in this court. A transcript of the testimony given by plaintiff March 30, 1964, in reference to the compromise settlement agreement was offered in evidence. On the hearing of the motion for judgment, plaintiff testified: That his original attorney had asked him to take the settlement of $3,750.00 and told him that another suit would be filed for some more money. That this was the only reason he agreed to accept $3,750.00. That he found out before Friday, when the papers were to be executed, that he could not file another suit and that under such circumstances he was not willing to accept $3,750.00 in settlement of his case.

Plaintiff’s original attorney also testified on the hearing of defendant’s motion for judgment and denied that he had told plaintiff that a new suit would be filed.

Plaintiff’s first series of points urge that it was error for the trial court to enter a consent judgment where the plaintiff had withdrawn his consent before the judgment was entered. Plaintiff cites the case of Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, as authority for the proposition that a valid consent judgment cannot be rendered by a court when the consent of one of the parties is wanting, and that such consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. Defendant contends this Burnaman Case, supra, is not applicable to the facts of the instant case. In the Burnaman Case, a damage suit, the plaintiff did not appear in court and give evidence as to the terms of the settlement agreement, but on the contrary notified the court that she had not authorized her attorney to make a settlement of her case, and notified the court of this situation before the judgment of the court was entered. A compromise settlement agreement made in a compensation case which is approved by the court, after hearing evidence, is not synonymous with the term “consent judgment” as used in the Burnaman Case, supra. There is no statutory law or case law. which compelled the approval of the court to the consent judgment in the Burnaman Case. The reason for the rule of law stated in the Burnaman Case is obvious in that the court in a true “consent judgment” case has no discretion as to approving the terms of a settlement made, and the only question is whether the parties actually were in agreement at the time the judgment was entered. This, of course, is not true in a compensation case, and the case law requires the court to hear evidence as to the terms of the settlement and to determine whether or not such terms are understood and acceptable to the claimant. There is no contention that the plaintiff did not understand the terms of the settlement. There is also no contention that the amount of the settlement was not acceptable to plaintiff as payment for the compensation claim.

A special rule of law is applicable to workmen’s compensation cases, as to the validity of compromise settlement agreements. A contractual agreement between the parties does not become binding until approved by the Board or the court. This law is set forth in Texas Employers’ Ins. Ass’n v. Miller, 137 Tex. 449, 154 S.W.2d 450, as follows:

“From a consideration of the Workmen’s Compensation Law, Vernon’s Ann. Civ.St. Art. 8306 et seq., as a whole, we have concluded that the legislative intent is manifest to declare the public policy to be that compromise settlements of claims are not effective and binding until approved. If the claim is pending before the board, then it must approve such settlements, and if pending before the court, then the court must approve same.”

The precise point of the case under consideration has not been directly passed upon by the appellate courts of this state, but the same rules of law under the Workmen’s Compensation Law have been applied to the proceedings in court as prescribed for the Industrial Accident Board. For example, such law provides for approval of compromise settlement agreements by such Board and no specific mention has been made for such approval by the court. The cases have extended the meaning of the law to include the necessity of the approval of the court when an appeal has been taken from the Board to the court. We have concluded that the law has been settled by the Supreme Court in the case of Pacific Employers Ins. Co. v. Brannon, 150 Tex. 441, 242 S.W.2d 185. In the Brannon Case the claim had not been appealed from the Board at the time the compromise settlement agreement was made, so the approval was secured by the Board. In the present case the compromise settlement agreement was made while pending in court and was approved by the court. We hold that there was a valid accord, which superseded the original claim, and was in the fullest sense a settlement, subject only to judicial cancellation for fraud or other equitable grounds. The compromise settlement agreement, when approved by the court after hearing evidence, was binding upon both plaintiff and defendant.

The trial court heard evidence as to whether such compromise settlement agreement should be set aside on the hearing of defendant’s motion for judgment. The entering of the judgment was a finding by the court against the plaintiff as to fraud or equitable grounds for setting aside the compromise settlement agreement. There was no evidence of any fraud or misrepresentation connected with the defendant. There is no contention made in this court that the defendant, nor anyone connected with it, made any misrepresentations in order to persuade plaintiff that he should accept the compromise settlement agreement made by the attorneys. The trial court, in effect, found against plaintiff as to the allegations made against plaintiff’s original attorney. Determining the equitable grounds question lay within the sound discretion of the trial court. We find no abuse of such discretion.

The judgment of the trial court contains the following:

“Rendered in open court on the 30th day of March, 1964, and entered this 23rd day of November, A.D. 1964.”

Defendant contends the trial court rendered a judgment March 30, 1964 when it was announced in open court: “All right, I will approve the settlement.” Even though the oral announcement made in this case is quoted to be “All right, I will approve the settlement”, it is apparent that the trial court was giving its present approval, and that there was no intention on the part of anyone, plaintiff, defendant or the court, that further evidence be heard by the court before rendering judgment. If it is admitted that the statement made by the trial court is not clear in its meaning, the judgment entered in this case shows on its face that it was the intention of the trial court to render judgment at the time of such announcement. Defendant quotes from Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, to support its position, as follows:

“In Freeman on Judgments, 5th Ed., Vol. 1, Sec. 48, pp. 80 and 81, it is said that ‘the rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication’ which ‘may be oral as well as written,’ and that a judgment is ‘ “rendered” when the decision is officially announced either orally in open court or by memorandum filed with the clerk.’ One of the cases cited in support of the text is the case of Appeal of Bulkeley, 76 Conn. 454, 57 A. 112, 113, in which it is said: ‘A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidance — whether orally or by written memorandum — the sentence of the law pronounced by him in any cause. This pronouncement of the court it is incumbent upon the clerk to forthwith enter. The writing out of the judgment in the form of a judgment file, to be recorded, is a matter of subsequent clerical action. * * * Here is recognized a clear distinction not only between the judgment and the writing which is required to be made to evidence it, but also' between the rendition of the judgment and the preparation of this writing at some subsequent time.’ ”

It is apparent that the trial court in making the oral announcement approving the compromise settlement agreement was passing upon and disposing of the only matter necessary in order for a judgment to be entered. Under these circumstances such pronouncement was a rendition of a judgment for plaintiff against defendant in the sum of $3,750.00. The writing out of the judgment in its present form was a matter of subsequent clerical action.

The second series of points raised by plaintiff complain of the action of the trial • court in rendering a judgment awarding plaintiff’s original attorney 30% of the amount recovered. It is contended that the original attorney upon being contacted by the attorney representing him on the hearing of the motion for judgment and in this court released the case for a valuable consideration which had been paid to him, in the amount of $380.25. The original attorney admitted that he had accepted such money and turned the file over to the second attorney, but contends that he performed the services of an attorney in representing plaintiff in securing the compromise settlement agreement and says that if the judgment is entered based upon such agreement then he is entitled to be paid the attorney’s fee agreed upon.

There may have been a valid assignment by the original attorney to the second attorney representing plaintiff on the motion for judgment. This is a matter subject to future litigation between such attorneys. The original attorney having represented plaintiff at the time the compromise settlement agreement was made and approved in the suit filed by such attorney, was entitled to have the attorney’s fee awarded to him. The points are overruled.

Judgment affirmed.

DISSENTING OPINION

HIGHTOWER, Chief Justice.

I disagree with that part of the opinion of the majority of the court which holds that the court below did not err in entering judgment for appellee based upon the so-called “compromise settlement agreement”. As a matter of justice, I would apply the same principles of law in construing the binding effect of said agreement, under the facts of this case, as are applicable to judgments by consent.

The plaintiff is here seeking his right to try his suit before a jury. It has been held by the Supreme Court that:

“A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.” (Emphasis added) Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d at p. 291; 33 Tex.Jur.2d, Judgments, § 103 et seq.

On the original hearing of March 30th referred to in the majority opinion the court only made this docket entry: “Jury selected and sworn; plaintiff begins testimony. Parties announced settlement and jury discharged at 3:50 P.M.” The court made this statement: “All right, I will approve the settlement.” It is clear that such statement of the trial judge was entirely prospective in the sense that he would render and enter judgment at such time that the parties presented it to him, reduced to writing and signed by all concerned. Said statement of the court was of no binding effect when made.

After hearing the testimony of appellant and other evidence adduced on appellee’s .motion for judgment, the court should have refused said motion as a matter of law and it erred by entering judgment for appellee on November 23rd.

Accordingly, in the interest of fairness and justice to appellant, I would reverse the judgment of the court below and remand the cause for trial on the merits.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Vernon BRIGGS et al., Appellants, v. Beatrice LLOYD et al., Appellees.
    No. 4520.
    Court of Civil Appeals of Texas. Waco.
    July 28, 1966.
    Rehearing Denied Sept. 8, 1966.
    L. W. Anderson, Dallas, for appellants.
    Bradley & Geren, Groesbeck, Dawson, Dawson & Price, Corsicana, Carl Cannon, Groesbeck, for appellees.
   OPINION

WILSON, Justice.

Defendants’ points in this plea of privilege case are that there is insufficient evidence, or none, that they were guilty of negligence proximately causing an automobile collision as alleged, under subd. 9a of Art. 1995, Vernon’s Ann.Tex.Civ.St.; and that the court erred in admission of evidence.

The location of the point of impact between the meeting vehicles was controverted, but there was evidence as to tire marks, debris and other physical circumstances which raised a reasonable inference and supported the implied finding of the trial court that defendants’ vehicle was operated on its left side of the highway. The evidence as to the 450-foot distance the trailer-truck traveled following impact, and after it ran over large trees, fences and ditches before it was stopped by an embankment, having collided with a vehicle moving in the opposite direction, supports also the implied finding concerning speed as a proximate cause of the collision.

The evidence complained of consisted of testimony of a farmer living near the scene of the accident as to the location on the highway of debris and tire marks which he had observed. He testified also that the tire marks led from a point on defendants’ side of the road a distance of 150 yards to the location of defendants’ truck after the collision. The objection was that the evidence called for a conclusion and opinion, that the witness was not an experienced highway patrolman or engineer, and was not qualified. The objections are untenable. The witness testified merely to physical facts which he observed, which required no special qualification, and which did not come within the scope of expert opinion evidence. He testified to observed data which are proper subjects of testimony by the ordinary, or lay witness. II McCormick & Ray, Texas Law of Evidence, Secs. 1435, 1451. The witness did not testify, as the points imply, concerning the “location of the accident.”

Affirmed.


author: COLEMAN, Justice.

text:
    William VASS, Appellant, v. Johnny C. FISHER, Appellee.
    No. 14857.
    Court of Civil Appeals of Texas. Houston.
    June 23, 1966.
    Simmons & Williams, Roy Simmons, Jr., Houston, for appellant.
    Clayton L. Phillips, Jr., Houston, for ap-pellee.
   COLEMAN, Justice.

This is a suit for damages for breach of a written contract by which appellant granted appellee permission to maintain certain coin-operated machines in a place of business owned by appellant for a specified period. The receipts from the operation of the machines were to be divided between the parties.

After operating under the terms of the agreement for a period of fifteen months, appellant removed the machines from his premises. On trial to the court without a jury, appellee recovered a judgment in the sum of $900.00.

Appellant pled that the instrument in question was executed as additional security for the balance due on a note for the purchase price given in connection with his purchase from appellee of the place of business. He alleged that on his payment of the note, the agreement was cancelled, or in the alternative became a license cancellable at his will. He further pled that the instrument could not be enforced for lack of mutuality and that there was no consideration for the agreement.

The trial court was requested to file findings of fact and conclusions of law by appellant. This request was filed after the time specified by the Rules of Civil Procedure, but nevertheless findings were prepared by the trial court and filed with the clerk on the last day permitted by the Rules for the filing of the transcript in this Court. The findings were filed after the transcript had been prepared and were not included therein. Appellant has requested permission to file a supplemental transcript to include the findings of fact and conclusions of law. This request is granted. Continental Fire & Casualty Insurance Corp. v. Surber et ux, Tex.Civ.App.1950, 231 S.W.2d 750; Bostwick v. Bucklin, 1945, 144 Tex. 375, 190 S.W.2d 818.

The findings of fact and conclusions of law fully support the judgment entered by the trial court. Whether the instrument is considered a contract or a licensing agreement is immaterial. The trial court found that the agreement was supported by consideration. In the absence of a statement of facts, this finding of fact must be accepted by this Court. Gilleland v. Meadows, Tex.Civ.App.1961, 351 S.W.2d 656; Gammage v. Weinberg, Tex.Civ.App.1962, 355 S.W.2d 788, 95 A.L.R.2d 1086, ref., n. r. e.

The fact that the instrument fails to recite a consideration is not fatal to this finding of fact. “It is the general rule that a consideration for a contract need not be recited or expressed in the writing, since, if not expressed, consideration may be implied by or inferred from the terms and obvious import of the contract, or it may be proved by parol evidence.” 17 Am.Jur. 2d, Contracts, § 90, p. 432.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    INTERNATIONAL INSURANCE COMPANY et al., Appellants, v. MEDICAL-PROFESSIONAL BUILDING OF CORPUS CHRISTI, Appellee.
    No. 218.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 4, 1966.
    Rehearing Denied Aug. 31, 1966.

      Hubert L. Stone, Jr., Corpus Christi, for appellants.
    W. M. Lewright, of Lewright, Dyer & Redford, James Cowden, of Cowden & Cow-den, Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This is an appeal from a summary judgment rendered for the defendant in a subro-gation suit. Appellant insurance companies, as insurers of Joseph Leon, Inc., the lessee of certain premises owned by appellee, paid lessee, their insured, the amount of its loss within policy limits resulting from an explosion in the premises allegedly caused by the negligence of appellee-lessor, and/or its independent contractor. Insurers by reason of such payments claim to be subrogated to the rights of their insured, and seek to enforce as against the appellee the asserted rights of the lessee to the extent of appellants’ payments under the policies. The cause against the defendant other than ap-pellee was severed, and is not before us. The trial court granted appellee’s motion for summary judgment based on the following provision of the written lease between ap-pellee as lessor and insured as lessee:

“Lessee hereby waives any claim it might have against Lessor for loss or damage to it caused by Lessor in connection with Lessee’s occupancy of the above described premises and storage of goods, wares and merchandise therein to the extent that Lessee is fully compensated for such loss or damage by actual receipt of proceeds from insurance policies covering such loss or damage.’’

Lessor originally leased the premises to Joseph Leon, Inc., in 1949. The original lease was amended in 1958, and the provision above copied was added. A similar provision whereby lessor waived any claim it might have against lessee for loss or damage to the premises caused by lessee, to the extent that lessor is fully compensated by actual receipt of proceeds from insurance policies covering such loss or damage was likewise added to the lease contract in this amendment.

In the Spring of 1962, about four years after the execution of this amended lease contract, the lessee Leon took out the three insurance policies here involved. These policies were in effect at the time of the explosion. Pursuant to the terms of the policies, appellant insurance companies paid their insured Leon the amounts which they here seek to recover from appellee.

The explosion occurred December 3, 1963, in the equipment room of appellee’s building, where the building steam boiler was located. This was a portion of the building which remained under the control of appellee. In October, 1963, appellee had employed a local engineering firm to inspect the boiler and its appurtenant equipment, and relied upon said company to conduct such tests and inspections as should have been conducted in the exercise of ordinary care. The lease required appellee to keep the building in a good state of repair and in a generally clean and reasonable condition. It is not questioned on this summary judgment proceeding that in the absence of the above quoted provision of the lease an issue of fact would be present of appellee’s liability to lessee-insured, and consequently in subrogation to appellant insurance companies, for lessee’s loss proximately caused by the explosion.

Appellants’ first and second points of error are to the effect that (1) the lease provision relied upon does not destroy the subrogation rights of the insurance companies who have paid the loss, and (2) said lease provision is applicable only to claims which lessee has over and above the amount of insurance proceeds received. Appellees, in support of the trial court’s ruling, answer (1) that appellants have no cause of action because their insured had no cause of action by virtue of the waiver provision relied on, and (2) the plain language of the waiver provision applies to any claim which the tenant has against the landlord, to the extent of the tenant’s receipt of insurance proceeds.

Where the insurance policy is regarded as one of indemnity, as is admittedly the case here, the company on payment of the loss is subrogated to any rights which the insured may have against the person alleged to be responsible for causing the loss. 46 C.J.S. Insurance § 1209, p. 152 et seq.; 32 Tex.Jur.2d, Insurance, § 466, p. 697 et seq.; Wichita City Lines v. Puckett, 156 Tex. 456, 295 S.W.2d 894. The right of sub-rogation is not dependent upon an express stipulation. in the policy or upon an actual assignment of the cause of action by the insured ; the fact of payment of the loss operates as an equitable transfer of the claim. Wilson v. G. A. Stowers Furniture Co., Tex.Civ.App., 297 S.W. 352, writ dis. w. o. j.; Magnolia Pipe Line Co. v. Security Union Insurance Co., Tex.Civ.App., 37 S.W.2d 1062; Frye v. Janow, Tex.Civ.App., 212 S.W.2d 883; Borel’s Estate v. Moody, Tex.Civ.App., 273 S.W.2d 673.

The insurer’s right of subrogation is derived from the rights of the insured, and is limited to those rights, and there can be no subrogation where the insured has no cause of action against the defendant. If the insured, having a claim against a tort-feasor at the time when payment of insurance is made to him by his insurer, enters into a settlement with and gives a release to the wrongdoer after such payment, the latter having knowledge of insurer’s rights of subrogation, and to which settlement the insurer is not a party, this does not bar an action to enforce the insurer's right of sub-rogation. Wichita City Lines v. Puckett, supra; Filipp v. Ochoa, Tex.Civ.App., 340 S.W.2d 847, writ ref. n. r. e., and authorities there cited. On the other hand, it is a well-settled rule of law that where an insured settles with or releases a wrongdoer from liability for a loss before payment of the loss has been made by the insurance company, the latter’s right of subrogation is thereby destroyed. British and Foreign Marine Insurance Co. v. Gulf, C. & S. F. Ry. Co., Tex.Sup.Ct., 63 Tex. 475; Maryland Motor Car Ins. Co. v. Haggard, Tex.Civ.App., 168 S.W. 1011; Security Storage & Van Co. v. General Insurance Co., Tex. Civ.App., 310 S.W.2d 729; Millers Mutual Fire Insurance Company of Texas v. Mitchell, Tex.Civ.App., 392 S.W.2d 703; Gulf Ins. Co. v. White, Tex.Civ.App., 242 S.W.2d 663.

The waiver provision of the lease, copied above, unambiguously states that the lessee (the insured) waived any claim against the appellee for loss or damage caused by lessor (appellee) to lessee’s property to the extent that lessee was compensated by actual receipt of proceeds from insurance policies covering such loss. Since there was a like provision by which the landlord waived any claim against the tenant under reverse circumstances, i. e., where the landlord suffered the loss through lessee’s fault, but was compensated by insurance funds, it appears obvious that the parties intended to contract against liability, each to the other, to the extent of compensation of the loss by insurance funds.

The lessee, by the terms of the lease which was in effect at the time the policies were issued, waived any claims against ap-pellee to the extent that lessee was compensated by insurance. The waiver was executed prior to the payment, although it became effective only on payment and receipt of the insurance money. Appellants’ case was not based on any claim of misrepresentation, fraud, or estoppel. Under the facts as agreed upon the insurers’ rights are no more than their insured’s (lessee’s) rights. Since any claim which lessee may have had against lessor-appellee became barred by virtue of the prior-in-time lease provision plus the actual receipt of the insurance proceeds, there was no cause of action remaining to which appellants could have become subrogated.

Neither Wichita City Lines v. Puckett, Tex.Sup.Ct., supra, nor Filipp v. Ochoa, Tex.Civ.App., supra, relied on by appellants, are applicable to the facts of this case. The holding in each is that an insured can not, after the loss has occurred, and after payment to insured by the insurance company, prejudice the right to subrogation by settling with or releasing the offending party who had knowledge of insurer’s right of subrogation. This situation does not appear in this case. The insured did not, after the explosion, attempt to make any release with appellee contrary to the rights of the insurance companies. The agreement between the lessor and lessee had been entered into before the loss occurred.

The views expressed above are in accord with the general rule of other jurisdictions which state that a release between the-insured and the offending party prior to the loss destroys the insurance company’s rights by way of subrogation. Gerlach v. Grain Shippers’ Mutual Fire Ins. Ass’n., 1912, 156 Iowa 333, 136 N.W. 691; United States Fire Ins. Co. v. Phil-Mar Corporation, 1956, 166 Ohio St. 85, 139 N.E.2d 330; Franklin Fire Ins. Co. v. Noll, 1945, 115 Ind.App. 289, 58 N.E.2d 947; City of New York Ins. Co. v. Chicago B. & Q. Ry. Co., 1913, 159 Iowa 129, 140 N.W. 373; Michigan Millers Mut. Fire Ins. Co. v. Canadian Northern Ry. Co., 8th Cir. 1946, 152 F.2d 292; Insurance Company of North America v. Elgin, Joliet & Eastern Ry. Co., 7th Cir. 1956, 229 F.2d 705.

The court will assume that the parties placed the waiver provision in the amended lease contract for some purpose, and intended that it be construed according to the natural import of its language. Appellant justifies the inclusion of the provision in the amended lease by limiting its application to claims of loss by lessee over and above the amount of insurance proceeds received. We do not so construe it. The provision in question expressly waived any claim against lessor “to the extent that Lessee is fully compensated for such loss or damage by actual receipt of proceeds from insurance policies covering such loss or damage.” There is no waiver by lessee of any claim for loss or damage not satisfied by proceeds actually received from insurance policies.

Appellants’ first and second points of error are overruled.

We believe that our decision of such two points is decisive of this appeal, and that further discussion of the third, fourth and fifth points would unnecessarily prolong this opinion. We have given full consideration to such points, and overrule same.

Judgment affirmed.


author: NORTHCUTT, Justice.

text:
    Arthur J. LAMB, Appellant, v. Julia PAYNE et vir., Appellees.
    No. 7628.
    Court of Civil Appeals of Texas. Amarillo.
    June 20, 1966.
    Rehearing Denied Sept. 6, 1966.
    Kenneth W. Gentry, Amarillo, for appellant.
    Herbert C. Martin, Amarillo, for ap-pellees.
   NORTHCUTT, Justice.

This suit was brought by appellant, Arthur J. Lamb, against appellees, Julia Payne, joined pro forma by her husband, Oscar Payne, for collection of a sworn account in the amount of $175 and for $100 attorney’s fees, interest and cost. Ap-pellees filed motion for summary judgment and on hearing thereof the court found that the claim of $175 had been paid and rendered judgment that appellant take nothing. From that judgment appellant perfected this appeal.

Appellant presents this appeal upon two assignments of error. The first point contends the court erred in granting summary judgment for the appellees because a debtor cannot relieve himself of liability for attorney’s fees under Article 2226, Vernon’s Ann.Tex.Civ.St., by tendering the” amount of the original debt after an attorney had been retained, and suit had been filed by the creditor, in the absence of an agreement by the creditor to accept said amount in full settlement. By the second point it is contended the court erred in rendering summary judgment because the pleadings and affidavits show that there was a genuine issue of material fact as to whether the amount tendered was accepted by appellant in full settlement.

The appellant had drawn a will for Mrs. Julia Payne and had charged her a fee of $200 for his services. Mrs. Payne had paid $25 upon the fee charged. After appellant had made repeated demands for the payment of the- balance of said fee in the sum of $175, and Mrs. Payne had failed to make payment, appellant placed the account in the hands of an attorney to file suit to collect the balance due. Suit was filed against Mrs. Payne and her husband to recover the $175 and for $100 attorney’s fee. Before the case was tried Mr. and Mrs. Payne paid the appellant the $175.

We think the sole question here involved is whether appellant could recover the $100 attorney’s fee under Article 2226, V.T.C.S., which reads as follows:

“Any person having a valid claim against a person or corporation for personal services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured, or suits founded upon a sworn account or accounts, may present the same to such person or corporation or to any duly authorized agent thereof; and if, at the' expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.” (Emphases ours.)

The claim sued upon was the $175. The $100 was no part of the claim but is in the nature of a penalty or punishment for failure to pay a just debt. In order for appellant to recover attorney’s fees he must finally obtain a judgment for at least a part of the $175 claim as presented to Mrs. Payne. Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493.

Article 2226 provides that if he (appellant here) should finally obtain judgment for any amount thereof as presented for payment to such person (appellees here), he may also recover in addition to his claim and cost a reasonable amount as attorney’s fees. The $175 was paid to appellant and he accepted that amount and was the exact amount of the claim. Thereafter there was nothing to collect other than the attorney’s fees and no part of the claim could be recovered by a judgment because it had been paid. Appellant at the time he accepted the $175 knew he had filed suit and had asked for attorney’s fees and was charged with knowledge of the provisions and limitations in Article 2226. If appellant could not have made a satisfactory settlement with appel-lees and wanted to collect attorney’s fees, he should have refused to accept the $175 unless the attorney’s fees were paid. National Homes Corporation v. C. J. Builders, Inc., Tex.Civ.App., 393 S.W.2d 949 (writ dism.).

In the Huff case,' supra, the Supreme Court held that attorney’s fees are no part of the demand or claim. Consequently, since the claim here was paid and no judgment could be entered for any part of the claim, appellant under the clear language of Article 2226 was not entitled to attorney’s fees. The attorney could not recover judgment for attorney’s fees without recovering judgment for a part of the original claim.

Judgment of the trial court is affirmed.


author: JOHN J. WOLFE, Special Judge.

text:
    Fannie LEATHEM and George Leathem, Appellants, v. Carl E. LONGENECKER, Jr., and Beulah E. Longenecker, Respondents.
    No. 51612.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    A. L. Shortridge, Emerson Foulke, Joplin, for appellants.
    Karl W. Blanchard, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for respondents.
   JOHN J. WOLFE, Special Judge.

This is an action by Fannie Leathern to recover damages she sustained by reason of personal injuries. She was employed by the defendants to do house cleaning. While engaged in this work she fell from the porch of defendants’ house with resulting injuries for which she seeks $25,000 damages. She charged that her fall was caused by a defective doorsill on the porch. George Leathern is her husband and he joins in the action seeking damages for loss of his wife’s services. There was a verdict and judgment for the defendants and the plaintiffs prosecute this appeal. They contend that the court erroneously refused four verdict directing instructions they offered.

Plaintiff Fannie Leathern started working for the defendants in August, 1962. She worked for them one day a week for four or five hours. Both of the defendants were employed and consequently Fannie Leathern was alone in the house as she worked. When she arrived at the defendants’ home on January 3, 1963, Mrs. Longenecker had not yet left for work, Before leaving she told Mrs. Leathern that the vacuum cleaner bag should be emptied. She gave no directions as to how this should be done. The vacuum cleaner was the tank type and the tank contained a bag to catch the sweepings. Plaintiff Mrs. Leath-ern took the bag out and emptied its contents into a trash container in the kitchen. There was still some dust in the bag and in order to shake this out she went out on a back porch upon which the kitchen door opened.

The porch was on the west side of the house near the southwest corner. It appears from photographs in evidence to have been about four feet above the ground. It rested upon concrete “piers.” Upon the “piers” the rim joists of the porch rested. These were 2 x 8’s and there were also supporting floor joists. The porch measured only five feet along the west side and four feet on the south side. It was enclosed on the west side by a lattice and on the south side it had a screen door that opened out to steps leading to the ground. There was a handrail on the east side of the steps but none on the west side. The porch had a roof slanting to the west. The flooring was made of 1 x 4 yellow pine, tongue and groove boards. The sill under the screen door was the same as the floor boards but it was about one-half inch wider than the other floor boards. It was nailed to the south supporting 2x8 main joist but it projected beyond the joist for one and one-half inches slightly above and over the top tread of the porch steps.

Mrs. Leathern testified that she took the vacuum cleaner bag out to the porch with the intention of shaking the dust that remained in it out into the yard below. She did not intend to go down the porch stairs to shake the dust out. It was her intention to open the porch door and shake the bag from a position in the doorway. She had the bag in her right hand so she pushed the screen open with her left hand. As the door was hinged on her right she was turned somewhat as she pushed it open. She described her posture as follows: “ * * * I had my right foot up close because I was kinda standing a little bit sideways because there wasn’t nothing to hold the screen back. And I had the sweeper bag in my right hand and I had hold of the door facing with my left hand and I just let the screen door come to kinda on my shoulder and I was just reaching out shaking it like that. (Indicating.)”

She said she was standing with her right foot projecting over the sill about one inch or one and one-half inches but her right heel was on the hoard behind the sill. Her left foot was behind the sill board. She said that as she was in this position “ * * it felt like something went down and just give so it throwed me forward.” She was asked if that was what caused her to fall and her answer was “Yes.” She fell into the yard below and suffered fractures of the left leg and ankle and a dislocated shoulder. She managed to get back into the house and telephoned Mrs. Longenecker. Mrs. Longenecker called an ambulance, had it sent to the house, and Mrs. Leathern was taken to a hospital.

Mrs. Leathern was accustomed to the use of the porch. She swept it each time she worked there and at times opened the screen door to sweep the dirt out. She also went up and down the back steps each time she worked there. She never noticed anything wrong with the doorsill. The plaintiffs called a builder as an expert witness. He had examined the porch over a year and a half after the plaintiff fell. He testified that the sill board had an old split in it. He said that the split looked like it had been there for several years. He said that he weighed 250 pounds and when he put his weight on the overhanging part of the board it went down a quarter of an inch. He did not measure the distance it went down but estimated it. A witness for the defendants said that the board depressed one-eighth of an inch under his own weight and one-sixteenth of an inch with the weight of Mrs. Longenecker. The Chief Building Inspector for the City of Joplin also called by the defendants testified that the porch structure was sound.

There was evidence that Mrs. Leathern had said that she did not know what caused her to fall. She had stated in answer to interrogatories; “ * * * ‘I Was attempting to get out the screen door of the back porch to empty a vacuum sweeper bag. My right foot caught in the doorway, I tripped and fell forward down the back steps and on to the ground. I tried to catch the screen door with my left hand but could not.’ ” When she was confronted with this answer on the witness stand she testified, “Well, I was definitely not attempting to get out of the door.”

The defendants both testified that the doorsill did not go down when stepped upon and Mr. Longenecker said that you almost had to jump on it to get it to give at all. They used the stairs and the door both before and after plaintiff’s fall and found nothing wrong with it.

The only points asserted here are that the trial court erred in refusing to give certain verdict directing instructions on behalf of the plaintiffs. The plaintiffs offered and the court gave two verdict directing instructions, one on behalf of Mrs. Leathern covering her claim under Count I of the petition, and another covering Mr. Leathern’s claim for loss of services under Count 2 of the petition. These were designated Nos. 2 and 3.

Instruction No. 2 was:

“Your verdict must be for the plaintiff Fannie Leathern upon Count I of the petition if you believe:
“First, there was an unstable door sill upon back porch floor which door sill of the screen door of the porch leading to the outside steps of defendants’ dwelling was not reasonably safe for defendants’ employee, and
“Second, plaintiff Fannie Leathern did not know and by using ordinary care could not have known of this condition, and
“Third, defendants knew or by using ordinary care could have known of this condition, and
“Fourth, defendants failed to use ordinary care to repair it, and
“Fifth, as a direct result of such failure, plaintiff Fannie Leathern was injured.”

Instruction No. 3 was the same in form and substance except that it directed verdict for plaintiff, George Leathern, for loss of his wife’s services. These two Instructions were followed by two Measure of Damage Instructions, one for each plaintiff, in the words of M.A.I. No. 4.01. The Burden of Proof Instruction provided by M.A.I. No. 3.01 was given and an instruction defining the term “ordinary care” as that is defined by M.A.I. No. 11.05. A converse Instruction was given stating:

“Your verdict must be for defendants if you believe the board under the screen door on defendants’ back porch was reasonably safe for plaintiff Fannie Lea-them’s use.”

Other than Instructions relatingDto the return and form of the verdict, these were all that were given at the close of the evidence.

Missouri Approved Instructions do not contain any instructions specifically designated for use in cases involving negligence actions against a master by a servant except those cases which come under the Federal Employers’ Liability Act. Instruction No. 2 quoted above was modeled after M.A.I. No. 22.03 which is a verdict directing Instruction to be given on behalf of an injured invitee. Plaintiffs, of course, cannot complain here about the Instruction given on their behalf and at their request.

They do, however, complain that the court refused two other verdict directing Instructions designated Nos. 11 and 15. One dealt with Fannie Leathern’s cause of action and the other with her husband’s. With that exception they were alike in all respects. They required the jury to find:

“First; that it was necessary for plaintiff Fannie Leathern in the scope of her employment by the defendants to use the back porch of defendants’ residence,
“Second; that defendants caused or permitted said back porch door sill to be in an unsafe and dangerous condition for plaintiff Fannie Leathem’s use while performing her duties in that the porch door sill had been permitted to become worn and unstable and defendants were thereby negligent, and
“Third; as a direct result of such negligence plaintiff Fannie Leathern was injured.”

The Instruction attempts to restate the charged negligence in Instruction No. 2, omitting the requirement contained in No. 2 that Mrs. Leathern did not know of the defect alleged and adding the requirement that it was necessary for Mrs. Leathern to use the porch. It has been repeatedly stated that the master is not the insurer of the servant. Miller v. F. W. Woolworth Company, Mo., 328 S.W.2d 684; Dye v. Peterson, Mo.App., 350 S.W.2d 272 ; Wilborn v. Desloge Consol. Lead Co., Mo.App., 268 S.W. 655. However in some cases the servant may knowingly use dangerous tools or work in dangerous places without defeating his right to recover from the master for the master’s negligence in providing such tools or places to work. Keeney v. Callow, Mo., 349 S.W.2d 75; Sloan v. Polar Wave Ice and Fuel Co., 323 Mo. 363, 19 S.W.2d 476; Edmondson v. Hotel Statler Co., Inc., 306 Mo. 216, 267 S.W. 612. In such cases the knowing use of a dangerous tool or place by the servant presents a jury question on the issue of contributory negligence. Thus the omission of a finding that the servant did not know of the danger would not in all cases render such instruction erroneous.

The second clause, however, in the refused Instruction requires a finding that defendants “caused or permitted” the door-sill to be in a dangerous condition. The respondents contend that the court did not err in refusing the Instruction because it failed to require a finding that defendants knew or could have known that the doorsill was dangerous. This court has considered the phrase “caused or permitted” as it was used in instructions prior to the adoption of Missouri Approved Instructions. We are not concerned with the word “caused” as there is no evidence that the defendants caused the alleged condition. With some expressed dissatisfaction with the phrase, it has been held that it was sufficient to require a finding that the defendant “knew” and consequently was not erroneous as used in relation to the facts then under consideration.

In Carnes v. Kansas City Southern Railway Co., Mo., 328 S.W.2d 615, this court stated that the word “permit” implied knowledge, but questioned whether or not it implied knowledge for a sufficient period of time for the defendant to have had an opportunity to correct the condition of which plaintiff complained. Sometime before the Carnes case was before this court the same phrase was mentioned in a discussion of instructions which inferentially required a finding of knowledge on the part of defendant. In Schonlau v. Terminal R. Ass’n of St. Louis, 357 Mo. 1108, 212 S.W.2d 520, 1. c. 424 and 425, the court stated: “Plaintiff’s chief instruction covering the whole case did not require the jury specifically to find that defendant had actual or constructive notice of the unsafe condition of the passageway floor. It is better practice to require such a finding * * Holding that the instruction otherwise required a finding of sufficient, facts which inferentially included knowledge on the part of the defendant the court stated: “Defendant urges that we should re-examine that doctrine. Perhaps, if the circumstances of this case were otherwise, it would be well to do so, and, in the future, to limit its application only to those instances in which we are satisfied the jury, in making all the findings required by an instruction in order to reach the requested verdict, could not do so unless it also found defendant had sufficient knowledge of the unsafe condition complained of.”

When the Supreme Court Committee on Jury Instructions submitted its report on the instructions it had approved it stated, M.A.I. XXI, “There are hundreds of currently acceptable instructions which use language more favorable to one side or the other than the proposed instructions. If counsel are permitted to ‘improve’ the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such ‘improvement’ by one counsel will prompt an offsetting ‘improvement’ by his opponent and after a while the court will not be able to find the original with a divining rod.” In the Foreword of M.A.I. on How to Use This Book, on page XXXII it is provided that in cases where no approved instruction is available “ * * * counsel will need to research the law, find the elements required to prove the case and then submit them as ultimate issues in the same manner as issues are submitted in Missouri Approved Instructions.”

Upon adoption of M.A.I. many of the instructions so adopted covered the required finding of actual or constructive knowledge on the part of the defendant. In such instructions they require that the defendant “knew” or in the exercise of the required degree of care “could,” or in other situations “should” have known. These words clearly require a finding of actual or constructive knowledge. It is no longer necessary or permissible to search out and use words which imply the meaning the instruction should convey where the exact meaning is expressed in M.A.I. The court did not therefore err in refusing instructions designated Nos. 11 and IS. The other two instructions which the court refused contained the same wording and the court did not err in refusing them.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    Frederick HAYS, a Minor by His Father and Next Friend Paul R. Hays, Appellant, v. WESTERN AUTO SUPPLY COMPANY, a Corporation, Respondent.
    No. 51586.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.

      C,]\Jitchell & Meise, John W. Mitchell, Clyde G. Meise, Kansas City, Mo., and George M. Hare, Independence, Richard B. Globus, Kansas City, of counsel, for appellant.
    James W. Benjamin, Kenneth E. Jones, Rogers, Field & Gentry, Kansas City, for respondent.
   HOUSER, Commissioner.

Frederick Hays, proceeding by his father and next friend, sued Western Auto Supply Company, a corporation, and H. Lee and Reba Van Cleave, for $75,000 damages for personal injuries. A riding power mower, sold by Western at one of its retail stores, purchased and owned by H. Lee Van Cleave, and operated by Jimmy, the 8-year-old brother of Frederick Hays, backed up against plaintiff, who was between 2 and 3 years of age, knocked him down and ran over his heel, foot, leg, groin and side, inflicting serious cuts and injuries. At the close of plaintiff’s evidence the court sustained motions for directed verdicts filed by Mrs. Van Cleave and Western and overruled Mr. Van Cleave’s motion for a directed verdict. The case against Mr. Van Cleave apparently was then settled. Judgment was entered against plaintiff as to all three defendants. Plaintiff has appealed from the action of the court in sustaining the separate motion of Western for a directed verdict. No appeal has been taken with respect to the rulings or judgment entered in favor of defendants Van Cleave.

The negligence charged against the retailer, Western Auto Supply Company, was that of selling the power mower to the public and to the Van Cleaves without adequate warning to the purchasers of the highly dangerous qualities of the machine, and that the machine was improperly designed in that it was built omitting guards around the blade, particularly in the rear section, thereby exposing the unguarded blade and causing or contributing to cause plaintiff’s injury. Western was further charged with having failed to take the highest degree of care to protect plaintiff when it knew or should have known that a machine so improperly designed and constructed was inherently dangerous and that such improper design and construction might well result in serious injuries to a person or persons and more specifically to plaintiff.

The Hays and the Van Cleaves families were next-door neighbors. Mr. Van Cleave bought the machine in question for his 9-year-old son Richard to operate. While Richard was mowing his father’s lawn Jimmy Hays, 8 years old, approached Richard to show him something. Richard stopped the machine. In the course of their talk Jimmy prevailed upon Richard to allow Jimmy to drive the machine. Jimmy got on the machine, mowed a short distance, put it in reverse and began backing. At that time Jimmy’s little brother, over 2 but not yet 3 years old, arrived on the scene unnoticed, and was at the rear of the machine as it was traveling backwards. The machine backed into Freddie and Freddie was knocked down. The rear of the machine passed over Freddie and caught his left foot, etc. in the whirling blade.

Plaintiff’s Exhibit 8, reproduced here, demonstrates the construction of the machine.

It was equipped with a 4½ h.p. gasoline engine which delivered power to the rear wheels by means of a chain drive. The motor was mounted about the center. The steering mechanism was in front of and the operator’s seat was behind the motor. The operator’s feet rested on a metal housing known as the blade guard or deck. A 24-inch cutting blade, connected to the motor, revolved parallel to the ground 1¾ inches below the deck. The blade was set to revolve on a plane 3 inches above the ground. The deck enclosed the blade on the front, left and right sides of the machine, except for an opening on the right side to permit cut grass to be ejected. At the rear the deck or blade guard did not come down over the blade, but left it exposed.

Plaintiff offered expert evidence as follows: The object of a guard is safety; to guard against persons “who might get their foot down there.” As long as “your blade is inside of the housing, not below it or behind it or in front of it” a guard which is part of the housing “does the job” — “not 100%” — but it is effective. The blade and deck were not contoured to each other all the way around. At the back there were square corners. When the blade was positioned parallel with the front and back wheels ¾ inch of the tip of the blade extended beyond the back end of the deck, toward the rear axle, and was exposed from the rear, with “no guard at all” covering the blade at that place. When in that position the tip of the blade would be 12 to 14 inches forward from the rear of the machine, on a line ahead of the front of the rear wheels and about even with the operator’s seat. The tip of the blade was approximately ⅛ inch below the blade guard “at all times,” so that the front was partially exposed and the rear completely exposed. A tubular tow-hitch bar extended across the back of the machine, almost as wide and at the same level as the rear axle. Neither an adult nor a child could get his foot or leg in contact with the revolving blade at the rear of the mower unless he fell down or was knocked down at the rear of the machine and the machine thereafter backed up 12 to 14 inches to make the contact.

Plaintiff-appellant’s first point is that the court erred in not allowing his expert witnesses “to testify to all of the defects of said riding power lawn mower.” Objections were sustained to questions asked plaintiff’s expert witnesses (1) whether the blade was covered at the front by the front part of the deck or blade guard, (2) whether in the expert’s opinion the injury would have occurred if the blade had been properly guarded and covered in the rear, and (3) whether the machine as constructed was reasonably safe. When objections to these questions were sustained plaintiff made no offer of proof and failed to advise the trial court what the expert’s testimony would have been if permitted to testify, or that the evidence woud have been favorable to plaintiff. Nothing is preserved for appellate review when a court rejects evidence, in the absence of an offer of proof, Howe v. St. Louis Union Trust Co., Mo.Sup., 392 S.W.2d 625; Eickmann v. St. Louis Public Service Co., Mo.Sup., 323 S.W.2d 802; 2A Missouri Digest, Appeal and Error, except in instances where the plain error rule, Civil Rule 79.04, V.A.M.R. is applicable. See Smith v. J. J. Newberry Co., Mo. App., 395 S.W.2d 472. Under the facts in this case there is no occasion to invoke the plain error rule.

Plaintiff's second point is that the court erred in sustaining Western’s motion for a directed verdict; that plaintiff made a submissible case both on negligence and breach of warranty of merchantability because he proved by his expert witnesses that the machine was improperly designed and constructed and had latent dangerous defects. It is argued that the evidence showed that the blade was not shielded in the back; that the nonshielding of the blade — the lack of a proper covering for the whirling blade —was not readily apparent or easily discoverable by a purchaser in the ordinary course of business; that it was not an obvious defect, but a hidden, latent defect resulting from an improper design, making the machine “imminently dangerous” so that “any person coming close to the machine for any kind of contact would likely have been cut, maimed or otherwise injured.” The • nub of plaintiff’s theory of recovery is that of deceit: that the machine is so constructed that there appears to be a guard around the blade when in fact there is not.

Defendant is the supplier, the retail seller; not the manufacturer. Defendant appears to have been a mere conduit for a manufacturer whose general reputation for reliability has not been attacked. Plaintiff is not the purchaser or a member of the purchaser’s family. The purchaser was not the operator, nor was any member of the purchaser’s family operating the machine, nor was the operator authorized by the purchaser to operate it. The 8-year-old operator had been allowed to use the machine by the purchaser’s 9-year-old son, contrary to the purchaser’s instructions. The person injured was the operator’s 2- or 3-year-old brother. The defense is that there was no negligence and no showing of any defect which was a proximate cause of the accident.

On the question of negligence: Plaintiff charges that defendant was negligent in selling and putting into commerce a machine negligently designed with a latent defect — improper shielding. The difficulty with this theory of liability, as pointed out by Frumer and Friedman, Products Liability, Vol. 1, § 18.04, is that in most instances design involves questions of specialized knowledge which the retailer cannot be expected to possess. This is not a case where the design is so obviously hazardous that the danger should be apparent to the retailer, or where by having demonstrated the machine the retailer should have discovered the danger in the design, or where the design was devised by or represented by the retailer as a safe design appropriate to the contemplated use. According to plaintiff this is a case where the retailer sold a machine with a latent defect; where, according to plaintiff’s brief, “a person inspecting this machine could not have found the defect for it was not an obvious defect.” Plaintiff admits “that only after careful inspection were plaintiff’s own experts able to point out the minuscule measurements which showed up the defects in the mower.”

Plaintiff did not make a case on his theory of negligent design. Plaintiff’s expert witness Root, asked whether a mower only partially guarded is “good or poor design,” testified that it was not general practice; that most machines have a complete wraparound deck; that this machine was practically the only one he had seen completely open in the back, and when asked if this machine was designed “properly for safety” answered merely that it was built during the period when there were borderline machines made as far as safety was concerned — machines built for a price and. a quick sale — with “lots of shortcomings in safety features,” such as a minimum deck. Expert Kraft did not recall having seen any machines without a total enclosure of the blade and expert McCullough had not seen one with an unguarded blade. But there was no testimony that proper design required that a mowing machine of this type have a guard at the rear of the deck housing. Marko v. Sears, Roebuck & Co., 24 N. J.Super. 295, 94 A.2d 348 [1].

Nor did plaintiff establish that there was a latent defect. The photograph clearly demonstrates the simplicity of construction of this machine and the absence of shielding at the rear of the deck housing. The absence of a shield at that point is obvious and plain to be seen. It does not take expert testimony to establish this fact, but if so plaintiff’s expert witness Kraft testified that the unguarded blade in the rear was obvious. A casual glance also reveals the tow-hitch bar at the rear of the machine, and that the blade is located a considerable distance from the rear of the machine. Neither the fact that the tip of the blade extends ¾ inch beyond the back of the deck housing nor that the shielding did not enclose the blade at the rear constitutes a latent defect. There is no claim of defective materials or workmanship or that the machine was not suitable for ordinary grass mowing. While all power mowers are dangerous if not carefully operated, there is nothing in this case to support a finding that this machine was an imminently or inherently dangerous product, and that Western should have foreseen that injury would probably result if it was sold to a customer. Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14 [3].

On the question of implied warranty: Plaintiff charges that defendant breached an implied warranty of merchantability. Plaintiff’s theory is best stated in counsel’s own words: “In fact, the deceit of placing a shield or covering near a blade but in fact not so shielding or covering the blade is the hidden, latent, dangerous defect in the machine upon which plaintiff bottoms the breach of warranty portion of its case * * This case arose before the effective date of the Uniform Commercial Code, Chapter 400, V.A.M.S., but at common law in the sale of a machine there was an implied warranty that it was of merchantable quality and reasonably fit for the intended use. Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S.W.2d 830; Farmers Bank of Trenton v. Ray & Son, Mo.App., 167 S.W.2d 963; Columbia Weighing Mach. Co. v. Fitzgibbons, Mo.App., 43 S.W.2d 897; Ferguson Implement Co. v. Parmer, 128 Mo.App. 300, 107 S.W. 469. Assuming that an implied warranty of merchantability arose, plaintiff had the further burden of establishing that the implied warranty extends to him; that the warranty was breached, and that there is a causal connection between the breach and plaintiff’s injury.

While pointing out that plaintiff was neither a consumer, purchaser nor a member of the family of a purchaser from Western, defendant concedes that privity of contract is no longer a requirement, so we will not dwell on this question but will take it that the parties agree that for the purposes of this case the implied warranty extends to plaintiff. We are not persuaded, however, that plaintiff made or can make a sufficient showing to demonstrate breach of warranty in that the mowing machine was not reasonably fit for the intended use. The test of breach of warranty of merchantability of a power lawn mower is the same as that applied in the sale of an automobile. It is not whether the machine was perfect, but whether it was reasonably suitable for the ordinary uses for which it was manufactured. Paton v. Buick Motor Division, General Motors Corp., Mo.Sup., 401 S.W.2d 446 [5]. “Breach of warranty is shown by proof of the failure of a product when the product is being put to its normal, intended use. Thus, liability on the ground of breach of a manufacturer’s express warranty does not exist where it appears that the warranted product was being used, at the time of the injury in suit, for a purpose different from that for which the manufacturer intended it to be used.” Hursh, American Law of Products Liability, Vol. 1, § 3:10. The intended use was that of mowing grass, with children kept away from the machine while in operation. The evidence clearly showed that the machine performed its function of mowing grass in a normal and efficient manner, without untoward incident, over a period of months. That it was reasonably fit for the general purpose for which it was manufactured and sold is evident. That there was no danger from the operation of the machine in the normal and reasonably-to-be-expected manner is clear. The fact that the tip of the blade extends ¾ inch beyond the rear end of the deck and that the deck did not enclose the blade at the rear does not constitute a breach of warranty. In normal operation no harm could possibly come to a person standing in the path of the machine, while backing, because of these conditions. The whirling blade could not come in contact with the foot, leg or body of any person standing in its backward path because the blade would be 12 to 14 inches from the rear hitch-bar, which would be more effective and practical as a guard than an extension of the deck around the entire circumference of the blade. The tip of the blade at the rear of its revolution is 12 to 14 inches forward of the rear hitch-bar. To reqüire that the rear of the deck enclose the blade, under these physical conditions, would be unnecessary and unreasonable. The law requires such a machine to be constructed in a manner so as to guard and protect life and limb in normal, ordinary reasonably-to-be-expected operation ; to protect against harm in reasonably foreseeable situations. The law does not require such a machine to be so constructed as to prevent every injury, regardless of circumstance or foreseeability. Specifically, it does not require a mower with a rear bumper to be so constructed as to prevent injury if the mower should be so improvidently operated as to back into, knock down and then run over an infant while he is lying prone on the ground. Defendant was not required to supply to the trade a foolproof, accident-proof power mower which could be driven safely and with impunity over the bodies of infants.

This leads to the question of causation. The cause of the injury was not the lack of a guard, but rather the misuse of the machine. “* * * [Ujnforeseeable acts of third persons may constitute a superseding cause of the accident which will exonerate a retailer or dealer from liability.” Frumer and Friedman, Products Liability, Vol. 1, § 18.07. The act of the 8-year-old operator in reversing the machine and backing it into the infant with sufficient force to knock him down and run over him, was an intervening and the efficient, proximate cause producing the injury. For that act the supplier may not be held liable. This is not a reasonably foreseeable situation. The risk of injury of the kind sustained by plaintiff is not one which defendant was required to anticipate or guard against. Appropriate here is what the Appellate Court of Illinois said in Murphy v. Cory Pump and Supply Co., 47 Ill.App.2d 382, 197 N.E.2d 849, 858, a suit against the manufacturer of a riding power lawn mower for injuries sustained by a 7-year-old child who fell in front of a mower operated by a 12-year-old child and had her leg mangled by the mower blade: “This mower would have caused no harm to plaintiff unless she, by her own acts, or by the acts of some third person, caused her to come in contact with it. Defendant should not be required to anticipate or protect against any such accident as the one which caused plaintiff’s injuries. The mower functioned properly for the purposes for which it was designed; it was without any latent defect; and its functioning created no danger or peril not known to the user. As stated by Professor Bohlen in his work on Torts, and quoted in Campo v. Scofield, ‘ “The manufacturer cannot be required to contemplate a misuse by any careless, ignorant, or incompetent person into whose hands the machine may come; injury through the medium of such an agency is neither a probable nor natural result of anything done or left undone by the maker.” ’ ”

The judgment is affirmed.

WELBORN, C., not sitting.

HIGGINS, C., concurs.

PER CURIAM.

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

HOLMAN, P. J., HYDE, J., and WOLFE, Special Judge, concur.

HENLEY, J., not sitting.

      . It affirmatively appears by way of answer to interrogatory that Western did not, through its “engineers or designers,” prepare specifications for bids in purchasing from the manufacturer.

      . The operator’s manual, which came with the machine, contained this caution: “Keep children and pets away from the mower while it is in operation.” The purchaser specifically instructed his son Richard not to use the mower when any children were in the vicinity and not to turn the mower over to any other youngster in the neighborhood.

      . 301 N.Y. 468, 95 N.E.2d 802.


author: STOCK ARD, Commissioner.

text:
    STEVE VOGLI & CO., a corporation, Appellant, v. John B. LANE et al., Defendants, Walter L. Saloga et al., Respondents.
    No. 51793.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.

      Kusnetzky & Partin, William C. Partin, Kansas City, for appellant.
    Raymond, West & Cochrane, and Carrol C. Kennett, Kansas City, for respondents.
   STOCK ARD, Commissioner.

Plaintiff has appealed from an adverse judgment entered in his suit to determine the validity of a purported amendment to restrictions on its land. The stipulated difference in value of the land brought about by the continuance or modification of the restrictions exceeds our minimum jurisdictional amount. See Eilers v. Alewel, Mo., 393 S.W.2d 584.

Broadview Heights consists of two separate but adjoining subdivisions of land in Kansas City, Missouri, containing a total of 35 lots. Plaintiff is the owner of lots numbered 75 through 80. The other 29, through a division of some lots, comprise 31 homesites, each in a separate ownership. All the lots were subject to the terms of a Declaration of Restrictions dated and recorded on February 13, 1950, which among other things limited their use to single family residence purposes. Plaintiff’s six lots are the only ones in the Broadview Heights not improved with single family residences. Paragraph 16 of the Declaration of Restrictions contains the following provisions respecting the term, extension and release of such restrictions:

“All of the restrictions and covenants herein set forth shall continue and be binding upon the undersigned and upon his heirs and assigns for a period of twenty-five (25) years from the date that this instrument is filed for record in the office of the County Recorder of Jackson County, Missouri, and shall automatically be extended thereafter for successive periods of twenty-five (25) years, provided, however, that the owners of the legal title to the aforesaid lands having more than fifty (50) percent of the front footage of said lands may release all of the lands hereby restricted from any one or more of said restrictions and covenants, and may release any part of said land from any restrictions and covenants created by deed from the undersigned at the end of the first twenty-five (25) year period, or at the end of any successive twenty-five (25) year period thereafter by executing and acknowledging an appropriate agreement or agreements in writing for such purpose and filing the same for record in the manner then required for the recording of land instruments, at least five (5) years prior to the expiration of the first twenty-five (25) year period, or at least five (5) years before the expiration of any twenty-five (25) year period thereafter; and further provided that the owners of the legal title of the lands having more than seventy-five (75) percent of the front footage of the land described herein may after fifteen (15) years from the date of this instrument, by executing and acknowledging an appropriate agreement and filing the same for record, as outlined above, release any one or more of the restrictions or covenants as above mentioned.”

On March 24, 1964, which was before plaintiff acquired title to its six lots, all the owners of all the lots in Broadview Heights affected by the Declaration of Restrictions, executed and recorded an instrument entitled “Amendment of Restrictions” in which it was stated that the restrictions contained in the Declaration of Restrictions “shall be and are hereby amended” to provide seven separate restrictions applicable only to Lots 75 through 80, as follows:

“1. Lots 75 to 80, both inclusive, Broadview Heights, a subdivision in Jackson County, Kansas City, Missouri, may be improved, used or occupied for either single family or two family (duplex) residence purposes, but no flat or apartment houses, though intended for residence purposes may be erected thereon.
“2. No residences erected on the aforesaid lots shall be required to have any frontage on Bannister Road and none shall be nearer than fifty (50) feet to Bannister Road.
“3. All residences erected on the aforesaid lots shall contain a minimum of two thousand (2,000) square feet living space area per residence building.
“4. All residences erected on the aforesaid lots shall have wood shingle roofing and be constructed with exterior front walls either partially or fully brick.
“5. There shall be a maximum of eight (8) residences erected or maintained on the aforesaid lots.
“6. Any duplex residences erected upon any portion of said real estate shall have not more than one (1) front door or entrance way visible from the exterior thereof to serve both portions of said duplex.
“7. All of the restrictions heretofore imposed upon the aforesaid lots for their use shall continue in full force and effect except as herein amended.”

Plaintiff acquired its six lots on October 7, 1964, and desired to develop the land for garden type apartments. Thereafter, plaintiff and the owners of 24 other lots executed an instrument entitled “Modification and Amendment to Restrictions, which by its terms was to become effective February 15, 1965, more than fifteen years after the date of the Declaration of Restrictions. This instrument recited that the undersigned “being all of the owners of the legal title to more than 75 per cent of the front footage of lots 46 to 80, both inclusive, * * * desire that the Declaration of Restrictions heretofore imposed upon all the aforesaid lots dated February 13,1950, * * and the amendment to said Declaration of Restrictions dated March 24, 1964, * * * be amended, changed and deleted as hereinafter set out, insofar as said restrictions and the amendment thereto affect Lots 75 to 80, both inclusive, * * ' *.” It was then provided that the Declaration of Restrictions and the Amendment of Restrictions “are hereby amended, deleted and changed as follows, to wit:

“That Lots 75 to 80, both inclusive, may be improved, used or occupied for duplexes and apartment houses; that there shall be no restriction as to the side building line and the front building line shall set back a minimum of 50 feet from Bannister Road. Each apartment shall have a living area of not less than 750 square feet per unit and the exterior walls of each building shall be constructed either partially or fully with brick or similar material. There shall be no restrictions as to the use of the front, frontage of buildings or land appurtenant to their use or architectural design.”

Subsequently, a petition was circulated among the owners of the lots in the subdivisions and signatures were obtained to a “Petition” wherein it was stated as follows: “KNOW ALL MEN BY THESE PRESENTS : That whereas the undersigned being the owners of the legal title to certain Lots in Broadview Heights, a subdivision in Kansas City, Jackson County, Missouri, after giving consideration to the proposal as presented by Mr. Steve Vogli, representing Steve Vogli & Company, wherein our area restrictions as filed of record at Jackson County, Missouri, be amended to permit the building of apartments on Lots 75 to 80, both inclusive; do hereby disapprove said proposal.”

Plaintiff filed this suit seeking a declaratory judgment that the “Modification and Amendment to Restrictions” was a valid agreement to modify the original Declaration of Restrictions, and that the modification became effective on February 15, 1965. The named defendants were those lot owners who signed both the proposed modification and the petition of disapproval. All the named defendants defaulted except the owners of one lot who answered and challenged the validity of the Modification and Amendment to Restrictions. The trial court found that by the “express terms of the original restriction agreement ‘any one or more of the restrictions’ applicable to all the lots could be released by the requisite number of property owners, but there was no provision authorizing the partial release of a restriction for only a part of the area,” and that “a partial release of the restrictions as to a few lots is not authorized by the original restrictive agreement and it is therefore void.” It was then ordered, adjudged and decreed that “the Declaration of Restrictions of February 13, 1950, remains in force and effect in accordance with all its terms and provisions.”

On this appeal plaintiff-appellant asserts that both the Amendment of Restrictions executed by all the owners of all lots, and the Modification and Amendment to Restrictions executed by the owners of 75 percent of all the lots are valid. No brief has been filed in this court by or on behalf of the defendants, and while a respondent is not required to file á brief, the practice of not doing so has been characterized as “neither helpful nor commendable.” Holman v. Fincher, Mo.App., 403 S.W.2d 245, 249. See also Quinn v. St. Louis Public Service Company, Mo., 318 S.W.2d 316, 319. We note that the owners of seven lots who did not sign the Modification and Amendment to Restrictions, and the owners of lots who did sign that instrument but who did not sign the “petition” have not been named as defendants, either individually or as members of a class.

Restrictive covenants running with the land, while in effect pursuant to the terms of the instrument creating them, may be extinguished, modified or changed by mutual agreement between all of those subject to the restrictions and all of those entitled to enforce them, and in making such modification or change the restrictions need not be uniform as to all lots but may contain any pattern of restrictions which could have been contained in the instrument originally creating the restrictions. See generally, 20 Am.Jur.2d Covenants, Conditions and Restrictions § 270 ; 21 C.J.S. Covenants § 76; Restatement, Property, § 556; 3 Tiffany on Real Property 3d Ed., § 870; Hirsch v. Hancock, 173 Cal.App.2d 745, 343 P.2d 959; Hopkins v. Smith, 162 Mass. 444, 38 N.E. 1122, 1123; Farmer v. Thompson, Tex.Civ.App., 289 S.W.2d 351, 355; Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398, 408; Noel v. Hill, 158 Mo.App. 426, 138 S.W. 364, 369. There is nothing in the record of this case to show that anyone other than those who executed the Amendment to Restrictions had any interest in the lands affected or was entitled to enforce the restrictions. We conclude and hold that as between the parties and upon the issues presented, the trial court erred in ruling that notwithstanding this modification and change, the original restrictions imposed by the instrument dated February 13, 1950, remained in full force and effect as to lots 75 through 80.

We consider now the validity of the Modification and Amendment to Restrictions dated February 15, 1965. In doing so we shall keep in mind that the law favors the free and untrammeled use of real property, and that restrictions on the fee are regarded unfavorably and are strictly construed. Mathews Real Estate Co. v. National Printing & Engraving Co., 330 Mo. 190, 48 S.W.2d 911, 913, 81 A.L.R. 1039. Also, when there is substantial doubt as to the meaning of the wording of any restriction such doubt should be resolved in favor of the free use of any property. Chiles v. Fuchs, 363 Mo. 114, 249 S.W.2d 454; Barnes v. Anchor Temple Association, Mo.App., 369 S.W.2d 893. In this case, any substantial doubt as to the meaning of language in the Declaration of Restrictions pertains to the release provisions of paragraph 16, and such doubt should be resolved, when permissible under the language used, in favor of permitting a less •restrictive use of the property.

The result of the amendment of March 24, 1964, was that the provisions of that amendment were incorporated into and became a part of the original Declaration of Restrictions with the same force and effect as though originally written into that instrument with a postponed effective date. Therefore, after March 24, 1964, the restrictions contained in the Declaration of Restrictions, as amended, were of three general classes: first, certain restrictions were applicable to all lots; second, certain other restrictions were applicable to all lots except lots 75 through 80; third, those restrictions contained in the Amendment to Restrictions and numbered 1 through 6 were applicable only to lots 75 through 80. The 1964 amendment left in force all the provisions of the original Declaration of Restrictions not specifically amended, and therefore the restrictions, as amended, continued to be subject to the release provisions contained in paragraph 16 of the original Declaration of Restrictions.

Paragraph 16 of the Declaration of Restrictions provided that after fifteen years from February 13, 1950, “the owners of legal title of the lands having more than seventy-five (75) percent of the front footage of the land described herein may * * * by executing and acknowledging an appropriate agreement and filing the same for record, * *. * release any one or more of the restrictions or covenants as above mentioned.” After March 24, 1964, the general class of restrictions applicable only to lots 75 through 80 were included in the term “any one or more of the restrictions or covenants as above mentioned,” and fifteen years after February 13, 1950, any one or more of those restrictions could be released by the owners of the legal title of the lands in Broadview Heights having more than 75 percent of the front footage of the land. Also, this authority to release one or more of the restrictions included the authority to release any one or more of the restrictions in part, that is, by releasing a restriction so that it was in part retained, the retained provisions being less restrictive on the use of the land than the original restriction. There is no contention by respondents that if the owners of 75 percent of the front footage could release the restrictions applicable only to plaintiff’s six lots, they could not do so in the terms and with the effect provided for in the Modification and Amendment to Restrictions. We conclude that by the Modification and Amendment to Restrictions dated February 15, 1965, the owners of the required amount of front footage released in its entirety, or released in part, “one or more” of the restrictions “as above mentioned” as to every lot to which the restrictions affected were applicable.

In view of the record, and the absence of a brief by respondents, we have no way of knowing what authorities were relied upon by either the respondents or the trial court. However, Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346, must be discussed. In that case restrictions for a period of twenty-five years could be “extended as to any or all of said restrictions for additional periods not exceeding 25 years each, by owners of the majority of the front feet of said Addition”. It was held that the extension clause “did not authorize owners of a majority of front feet in the addition to extend the restrictions as to a part of the lots for 25 years and to release them as to others.” The distinguishing feature of that case is that all the restrictions applied uniformly to all lots. In the pending case, after the amendment of 1964 certain restrictions applied to all lots except lots 75 through 80, and certain other restrictions applied only to these six lots. Therefore, under the language of paragraph 16 of the original Declaration of Restrictions the right of the owners of 75 percent of the front footage to release “any one or more” of the restrictions “above mentioned” included the right to release in whole or part the separate restrictions applicable only to the six lots and which limit their use to “single family or two-family (duplex) residence purposes.”

This case was ruled in the trial court on a motion filed by plaintiff for a summary judgment in which the defendants did not file a written joinder. The judgment of the trial court was in favor of defendants on the merits. However, in view of our conclusion that the owners of 75 percent of the front footage of the subdivisions could after 15 years release one or all of the restrictions applicable only to the six lots of plaintiff, there is presented the issue of whether they have done so. As previously noted, the Modification and Amendment to Restrictions was executed by the owners of lots having the required amount of front footage prior to the expiration of the 15-year period, and in the instrument it was stated that the “parties have hereunto set their hands to become effective February 15, 1965.” We have no doubt that this constituted a valid agreement, the mutual promises constituting the consideration, that on February 15, 1965, the amendment was to become effective when acknowledged and recorded according to the terms of paragraph 16 of the Declaration of Restrictions. Subsequent to the execution of the Modification and Amendment to Restrictions the owners of seven lots signed the so-called “petition” wherein they said that they then did “disapprove said proposal.” It may be that the death or legal disability of a person who had signed the Modification and Amendment to Restrictions before February 15, 1965, would “revoke” his approval, but it was stipulated that none of those signing the instrument had died, conveyed his property or suffered any legal disability. There is no contention of fraud, misrepresentation, or mistake, and no reason is advanced why the agreement contained in the Modification and Amendment to Restrictions should not be considered to be valid and enforceable by the courts.

In plaintiff’s petition it was pleaded that 75 percent of the owners of the front footage could and did release the restrictions applicable to plaintiff’s six lots. Defendants pleaded no affirmative defense. In its brief to this court plaintiff assigns as a point relied on not only that the release could be made but also that it was done. As previously noted, defendants-respondents have filed no brief in this court. From plaintiff’s brief and from our research we find no compelling reason why the agreement entered into by the owners of the required number of the front footage should not be enforced. Certainly defendants have advanced no reason even though they knew the issues were before this court. Under these circumstances, and within the purpose and spirit of Civil Rule 83.13, V.A. M.R., which provides that on appeal all issues should be disposed of when possible, we conclude and hold that between the parties to this suit the Modification and Amendment to Restrictions constituted a valid and enforceable agreement between the parties thereto, and that there was no effective cancellation or withdrawal from that agreement by the owners of seven lots who subsequently signed the “petition” expressing disapproval of plaintiff’s proposal for use of the land.

The judgment of the trial court is reversed, and the cause remanded with directions that the trial court enter a judgment in accord with the views here expressed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

EAGER, P. J., and FINCH, DONNELLY and STORCKMAN, JJ., concur.