text:
    Gertrude Cooper MAXWELL, Appellant, v. William MAXWELL, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    As Modified on Denial of Rehearing Dec. 8, 1961.

      Cawood Smith, Harlan, for appellant.
    Appellee not represented by counsel.
   MILLIKEN, Judge.

This is an appeal by the mother of a thirteen year old boy, Dorsey Lyon Maxwell, from a judgment awarding the father annual custody of the boy from the time school is out in the spring until July 15th, or a period of about six weeks. In the same order the father was directed to increase his monthly support payments.

The father and mother were married in 1944 and divorced in 1953, the mother obtaining agreed custody of the boy, their only child. The mother has not remarried, has been employed steadily and in large measure has supported and reared the son with the help of his maternal grandparents. The boy likes his father well enough, but expressed a desire to stay with his mother in the summer.

We have here a battle of devotion — two parents of good character unable to resolve their differences about a child they love. The father now lives and works in Hamilton, Ohio, approximately two- hundred miles from the boy’s home. The chancellor saw and heard the parties and the witnesses, and, as a consequence, concluded that father and child should have a better opportunity to be together. Nothing has been presented which would lead us to conclude that he did not act with the best interests of the child in mind — the main criterion of this type of case. The appellant moved that we invoke RCA 1.260 because of the appellee’s failure to file brief. On full consideration of the case, the Court refuses to do so — the application of the rule being discretionary with this Court.

The judgment is affirmed.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    James A. GRAVES, Appellant, v. Leonard WINER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      Eblen, Howard & Milner, John M. Kelly, Lexington, for appellant.
    George R. Smith, Lexington, for appel-lee.
   PALMORE, Judge.

The appellant, Graves, offered a house and lot for sale at public auction. Winer, the appellee, was the successful bidder at a price of $9,650. The contract was reduced to writing, pursuant to which Winer paid $965 down and agreed to pay the balance of $8,675 on or before one month from date. He refused to perform and Graves brought this suit for specific performance or, if that remedy should not be decreed, for damages. Winer counterclaimed for a cancellation o'f the contract by reason of various alleged misrepresentations -and for recovery of the $965 down payment. This appeal is from a judgment upholding the contract, awarding Graves $1 and costs, and, in effect, awarding Win-er a return of the down payment.

Two principal points are advanced for the appellant, (1) that he was entitled to a jury trial and (2) that he was entitled to more than nominal damages. We are of the opinion, however, that if the proof did not support an award of actual damages the judgment gave the plaintiff all that a jury could have given him, and he was not prejudiced by the trial by court. Cf. Ferguson v. Akers, 1915, 165 Ky. 289, 176 S.W. 1149, 1151; Combs v. Burt & Brabb Lumber Co., 1905, 27 Ky.Law Rep. 439, 85 S.W. 227. Hence we shall examine the second question first.

The contract was made on November 1, 1957, and this suit was filed on December 12, 1957. Following the taking of several depositions by plaintiff, and then a pretrial conference, on June 23, 1958, the trial court entered an order determining that plaintiff was not entitled to specific performance “but that the action should be tried upon plaintiff’s alternative claim for damages and upon defendant’s counterclaim for damages.” The cause was then referred to the Master Commissioner for hearing and report of findings and conclusions. Plaintiff did not take issue with this denial of specific performance, but he did insist upon, and was denied, a trial by jury of the common law issues.

The case finally came on before the commissioner on January 5, 1959, following which the hearing was adjourned from time to time and further depositions were taken by both parties. When he closed in chief plaintiff had failed to put on any evidence of damages, but on February 25, 1959, the commissioner, over objection, permitted him to do so after defendant had rested. He then proceeded to prove such items as lost rentals and sums paid out in taxes, insurance and maintenance. After completion of all testimony on February 25, 1959, the evidence was transcribed and then considered by the commissioner, who filed his report on July 2, 1959. In this report the commissioner found that defendant had breached the contract but plaintiff had not proved any allowable damages and therefore could have only nominal recovery. He held defendant entitled to recover his deposit of $965 less the sum of $1 and costs.

On August 28, 1959, plaintiff again moved for a jury trial and tendered an amended complaint showing that he had sold the property in question at public auction on July 22, 1959, for the price of $8,500, thus establishing the amount of his principal item of damages. Pie asked $1,150 for his direct loss on the re-sale, $125 per month rent from December 1, 1957, to July 22, 1959, $140.56 costs of the second sale, $128.56 maintenance and insurance, and $84.72 taxes for the same period. On September 10, 1959, the trial court filed a written opinion confirming and adopting the commissioner’s report and overruling plaintiff’s motions. Judgment was entered accordingly.

For a breach by the vendee of a contract for the sale of land “the quantum of damages is the difference between the contract price and the actual value of the land on the date of the breach, provided the actual value is less than the contract price. In addition, interest may be awarded.” Harmon v. Thompson, 1905, 119 Ky. 528, 27 Ky.Law Rep. 181, 84 S.W. 569, 573; Eaton v. Trautwein, 1941, 288 Ky. 97, 155 S.W.2d 474, 476. See also McBrayer v. Cohen, 1892, 92 Ky. 479, 13 Ky.Law Rep. 667, 18 S.W. 123, with respect to expenses incident to re-sale.

The object of compensatory damages is to put the injured party in the same condition, so far as money can do so, in which he would have been if the contract had been duly performed. Oleck, Damages to Persons and Property, §§ 80, 229, 237, pp. 59, 439, 448. “The injured party is entitled to all such damages as arise naturally from the breach of the rights which that contract was contemplated to assure.” Ibid., § 85, pp. 73-74. See also 15 Am.Jur. 442 (Damages, § 43); Hogg v. Edley, 1930, 236 Ky. 142, 32 S.W.2d 744.

Where a vendor has an enforci-ble contract of sale and obtains specific performance, the allowance of interest on the unpaid portion of the purchase price for such period of time as the property unavoidably lay idle in his possession after the money was due would fairly recompense the vendor’s temporary loss of income 'on his investment. However, if in lieu of specific performance he recovers only the value of his lost bargain, interest on that amount may not be adequate to make him whole. Therefore, we are not prepared to say that a jilted vendor cannot have his lost rents (less, perhaps, interest on so much of the purchase price as has been paid him) if he brings suit promptly and proves the reasonable rental value of the property. This probably would occur only in the unusual case where a vendor sues for specific performance but for some reason not theretofore apparent is relegated to damages only. That happened in this case. The appellant was entitled to specific performance. Though some courts recognize the power of equity to draw a line between entitlement to damages and entitlement to specific performance purely on the basis of discretion (see Pomeroy’s Specific Performance of Contracts §§ 35-46; 81 C.J.S. Specific Performance § 163, pp. 778-782), we are of the view that if the vendor proves a cause of action for specific performance he is entitled to that relief unless the defendant is unable or persists in his refusal to perform. And until such time as it reasonably appears that he will be deprived of that particular remedy we do not think he should be penalized for holding the property in readiness to perform.

The appellant proved that before the sale on November 1, 1957, he had rented the property out at $125 per month and had been offered $100 to $125 per month for it afterwards, but that he did not re-rent it because he might then have been unable to perform the contract, which 'he intended to enforce specifically. The commissioner was of the opinion that since he did not obtain specific performance he never was entitled to it in the beginning, and hence had no legal reason not to re-rent the property immediately. He held also that in any event .the testimony was insufficient to show the fair rental value of the property. We are inclined to concur in this latter conclusion. That appellant may have received a certain rental previously, though it would certainly support opinion testimony as to the reasonable rental value, is not of itself sufficient to prove it. Offers, of course, are not competent evidence of value. Cf. Brock v. Harlan County, 1944, 297 Ky. 113, 179 S. W.2d 202, 204.

In this case appellant cannot have his lost rents for the reason that he failed to prove them. But by virtue of his entitlement to the lost rents, had he proved them, he cannot recover taxes, insurance, and maintenance expenses, because these are chargeable against the gross rents in order to arrive at the net loss of income, which is the real measure of this item of damages. In other words, entitlement to gross rents presupposes that the maintenance expenses have been borne by the plaintiff.

So we come to this. Appellant failed to prove the fair market value of the property at the time the contract was breached, and he failed to prove the reasonable rental value of the property during the interim between the time the contract was to be performed and the time the trial court entered an order denying specific performance. Therefore, unless the trial court abused its discretion in refusing to allow his tendered amendment after the re-sale, he got from the court all that a jury could have awarded him, which was nominal damages, hence he was not prejudiced by his deprival of a jury trial.

Though CR 15.01 provides that leave to amend “shall be freely given when justice so requires,” it is still discretionary with the trial court, whose ruling will not be disturbed unless it is clearly an abuse. Bradford v. Billington, Ky.1957, 299 S.W. 2d 601. In his written opinion the trial judge expressed the view that appellant had been accorded ample opportunity, after the denial of specific performance, to prove the fair market value of the property but never did so, nor did he ask an adjournment for the purpose of having it sold, but waited until after the commissioner’s report had been made. Under these circumstances the court exercised its discretion in the negative, declining to allow the amendment. We cannot call this action a clear abuse.

In his report the commissioner did not undertake an analysis of the defendant’s counterclaim for his $965 down payment. But in Ward Real Estate v. Childers, 1928, 223 Ky. 302, 3 S.W.2d 601, 602, it was held that “a party to an agreement to purchase property who has advanced money in part performance * * * and then refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to perform his part of the contract, is not entitled to recover his part of the money so advanced.”

“It is the general rule that a deposit on a contract, or a partial payment of the purchase price of property bought at auction, or otherwise, may be recovered where the sale falls through because of some failure or fault of the vendor or the auction. * * * But the plaintiff must be free from the fault that defeated the deal, and, if he is to blame for the situation, he may not obtain relief.” Robenson v. Yann, 1928, 224 Ky. 56, 5 S.W.2d 271, 274-5.

The two decisions just cited do not hold that the deposit is taken as liquidated damages, and neither in those cases nor in this one did the contract so provide. They say simply that the defaulting vendee cannot get it back. Does this mean that if the vendor proves his actual damages he may recover them and retain the deposit as well? We think not, and that the amount retained must be set off against the damages awarded. If, however, the award of damages is less than the amount of the retained deposit, the vendee still may not recover the deposit, since under the rule of the aforementioned decisions he was never entitled to recover any of it in the first place. In this case the $965 deposit more than offsets the $1 damages, with the result that appellant is entitled to keep the deposit and recover his court costs.

Judgment reversed with directions to enter a new judgment in conformity with this opinion.


author: WADDILL, Commissioner. MONTGOMERY, Judge

text:
    Carl McCLELLAN et al., Appellants, v. LOUISVILLE WATER COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 24, 1961.
    Rehearing Denied Dec. 15, 1961.

      Clay Shackelford, A. R. Burnam, III, James E. Thompson, Shackelford & Bur-nam, Richmond, Leon J. Shaikun, Louisville, R. P. Moloney, Donald Moloney, Moloney & Moloney, F. Selby Hurst, Lexington, for appellants.
    Charles W. Morris, Frank A. Garlove, Matt L. Garlove, Irwin G. Waterman, Morris & Garlove, Louisville, for Louisville Water Co.
    Alan Neil Schneider, Herman E. Frick, Louisville, for City of Louisville.
    Arthur W. Grafton, Edward A. Zing-man, Wyatt, Grafton & Grafton, Harris W. Coleman, Louisville, for Comrs. of Sinking Fund of City of Louisville.
   WADDILL, Commissioner.

Appellants reside outside the Louisville city limits and are consumers of water sold by appellee, Louisville Water Company. In 1939 and in 1946 appellee substantially increased its water rates for nonresident consumers without seeking or obtaining approval of the Kentucky Public Service Commission. In July, 1955, appellee decreased the discount it allowed its customers for the prompt payment of their water bills.

On August 12, 1957, appellants filed this action against appellee in Jefferson Circuit Court seeking: (1) To have the unapproved rate increases declared illegal and void; (2) injunctive relief prohibiting the further collection of such increases; and, (3) refunds of the sums unlawfully collected. The trial judge refused to grant the relief sought and entered judgment accordingly.

Chapter 278, KRS, empowers the Public Service Commission to regulate utilities. However, in defining “utility,” KRS 278.-010(3) reads:

“ ‘Utility’ means any person, except a water district organized under Chapter 74 or a city, who owns, controls, operates or manages any facility * *

This subsection has been construed as not exempting a city-owned utility from regulation of its extraterritorial operations by the Public Service Commission. City of Olive Hill v. Public Service Commission, 305 Ky. 249, 203 S.W.2d 68; Louisville Water Company v. Preston Street Road Water District, Ky., 256 S.W.2d 26; Fraley v. Beaver Elkhorn Water District, Ky., 257 S.W.2d 536; City of Covington v. Sohio Petroleum, Ky., 279 S.W.2d 746; City of Richmond v. Public Service Commission, Ky., 294 S.W.2d 513; Louisville Water Company v. Public Service Commission, Ky., 318 S.W.2d 537. Appellee is in the category of a municipally owned utility. Louisville Water Company v. Public Service Commission, Ky., 318 S.W.2d 537; Rash v. Louisville & Jefferson County Metropolitan Sewer District, 309 Ky. 442, 217 S.W.2d 232.

The public interest affected by the far-reaching consequences of our former construction of KRS 278.010(3), in City of Olive Hill v. Public Service Commission, supra, and in cases which followed it, has caused us to reconsider once again the soundness of that construction. As a result of our re-examination of Chapter 278, ICRS, specifically the exemption from the regulatory control of the Public Service Commission granted to cities by the plain language of subsection (3) of KRS 278.-010, we have reached the conclusion that our construction of this subsection is erroneous, and we hold that the exemption provided therein extends to all operations of a municipally owned utility whether within or without the territorial boundaries of the city. Therefore, insofar as the above cited cases are in conflict with this opinion they will no longer be followed. While we recognize that this decision deprives nonresident utility customers of the protection afforded by the Public Service Commission against excessive rates or inadequate service, nevertheless matters of this character are of legislative rather than judicial concern.

This ruling effectively decides that the alleged increases in rates are not illegal and void on the grounds set forth in the complaint. While we are not adopting the reasoning of the trial judge, the ultimate conclusion he reached (which denied appellants relief) is correct.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

This Court has considered and reconsidered the principle first set forth in the Olive Hill case as shown by the cases cited in the majority opinion. The General Assembly has met in several regular and extra sessions since the original decision in 1947 without taking any legislative action to change the rule of law thus established. A bill to change the rule was unsuccessful in passage at one session. It has thus become firmly established in the body of our law.

The doctrine of the Olive Hill case is sound, in that it affords the only protection to the extraterritorial customers of a city-owned utility against unfair rates and faulty service. Therefore, I feel that it is unwise in the absence of legislative action to abrogate this rule; hence, this dissent.

BIRD, C. J., joins with me.


author: WADDILL, Commissioner.

text:
    Wendell L. SOUTH et al., Appellants, v. Porter WALLACE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.

      L. A. Faurest, Faurest & Collier, Eliza-bethtown, for appellants.
    Clarence Bartlett, Owensboro, Allen P. Cubbage, Leitchfield, Woodward, Bartlett & McCarroll, Owensboro, for appellees.
   WADDILL, Commissioner.

Appellees brought this action against appellants seeking to cancel, on the ground of fraud and deceit, certain contracts they signed in connection with their acquisition of appellants’ florist business. Appellants denied the allegation of fraud ■ and deceit and by counterclaim sought enforcement of appellees’ contractual obligations with them.

The trial court entered judgment granting appellees the relief sought. For reversal it is urged that the evidence is not sufficient to authorize the cancellation of these contracts.

Appellants, Wendell L. South and his wife, operated a retail florist business in a building owned by them. Following the sale of this business to the appellees, Porter Wallace and his wife, a controversy arose which resulted in the filing of this action. .

There was testimony that Mr. South told the Wallaces his business was a “gold mine” which grossed $2,000 a month and that he produced purported records of his florist business verifying his claim. The Wallaces testified that they relied upon these representations and purchased the business but soon learned that the income from the business was much less than represented by Mr. .South. ' The Wallaces further testified that the fraud perpetrated by Mr. South has resulted in a substantial financial loss to them. The trial judge found that the representations made to the Wallaces by Mr. South were false and known by the latter to be false, and that they were made for the .purpose of deceiving and-inducing the Wallaces to enter into the contracts in question. ■ The court concluded that the Wallaces had; signed the contracts relying upon Mr. South’s representations, and that the contracts were obtained by fraud.

Since the trial court chose to believe appellees’ testimony, which clearly establishes actionable fraud on the part of appellants, the judgment is sustainable.

Judgment affirmed.


author: BIRD, Chief Justice.

text:
    Tom HIBBS, Appellant, v. Arson MOORE et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 25, 1961.
    Rehearing Denied Dec. 15, 1961.

      Athol Lee Taylor, Burlyn Pike, Shep-herdsville, for appellant.
    T. C. Carroll, C. V. Sanders, Shepherds-ville, Thomas C. Carroll, Louisville, for appellees.
   BIRD, Chief Justice.

Tom Hibbs ran against Arson Moore for County Judge of Bullitt County in the Democratic primary election held in May, 1961. Hibbs lost to Moore by 62 votes. Moore was at the time serving as County Judge of that county.

Hibbs contested the election on divers grounds. Upon Moore’s motion the trial court struck all but one of the numerous numbered paragraphs of the complaint because they failed to state facts sufficient to constitute grounds for a contest. In so doing the trial judge wrote an opinion in which he disposed of each paragraph separately.

He did not strike paragraph 24 in which it was charged in substance that Moore conspired with various officers of the Kentucky Department of Highways to coerce state highway employees to vote for Moore in violation of KRS' 123.110 of the Corrupt Practices Act. Proof was heard on this issue alone. At the conclusion of the hearing the trial court made the following finding of fact:

“There is not the slightest evidence presented in this case of a conspiracy to violate KRS 123.110 or any other election law. The evidence not only wholly fails to prove a conspiracy, but completely fails to show any violation of law by Moore. At most, it shows only that Moore was present at a meeting of highway employees, when another employee informed those present ‘the administration’ was supporting certain candidates, including Moore. Whereupon Moore did what any other candidate would have done, he solicited those present to support his candidacy. There is no- evidence whatever in the record that any employee, state or county was threatened, intimidated, or coerced to cast his vote a certain way. No matter what the implications from the request might have been such cannot in law be dignified to the status of evidence against Moore.”

Thereupon the complaint was dismissed and judgment was entered for' Moore. Hibbs appeals.

He insists that the trial court erred in dismissing any part of his complaint and that he erred in finding for Moore on the one issue that was heard.

We have carefully studied the allegations that were stricken and have concluded that the opinion of the trial judge concerning those issues is so substantially correct that further elaboration by 'us is unnecessary. There was no reversible error in the dismissal of those paragraphs.

We have heretofore quoted the trial court’s finding of fact on the “conspiracy” charge.

Close scrutiny convinces this Court that the trial court’s finding of fact is substantially justified by the record. We shall therefore not disturb it. Asher v. Hartlage, Ky., 336 S.W.2d 335; Morris v. Morris, Ky., 336 S.W.2d 548; Keeling v. Minton, Ky., 339 S.W.2d 464.

We find no error. The judgment is therefore affirmed.


author: DALTON, Judge.

text:
    Steven Edward SPENCER, Harold Ray Spencer, Joanne Frances Spencer, Vickie Lea Spencer, Minors, by their next friend Donna Woody, Plaintiffs-Appellants, v. Robert BRADLEY, an individual, d/b/a Bradley L. P. Gas Company, Defendant-Respondent.
    No. 48068.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Max W. Foust and Russell D. Jacobson, Foust & Lyons, Kansas City, for appellants.
    Lynn M. Ewing, Jr., and Boyd Ewing, Ewing, Ewing, Ewing, Carter & Wight, Nevada, for respondent.
   DALTON, Judge.

Action by named minor children of Cleo Frances Spencer, deceased, for $25,000 damages for the alleged wrongful death of their said mother. Defendant’s motion to dismiss plaintiffs’ second amended petition was sustained and judgment of dismissal entered. Plaintiffs have appealed.

The action was commenced on July 10, 1957, by the filing of plaintiffs’ petition in the Circuit Court of Vernon County, Missouri. Amended petitions were subsequently filed, the second amended petition on October 22, 1959. The said amended petition alleged that plaintiffs were the natural born children of Cleo Frances Spencer, who sustained fatal injuries on October 5, 1956, which resulted in her death on October 6, 1956; that at the time of her death Cleo Frances Spencer was survived by said children; that said suit was brought under the “Death Statute of Missouri” for the benefit of said children; that all of said children were under the age of twenty-one years; that the deceased was also survived by her lawful husband, Edward Spencer; that Edward Spencer, as such surviving spouse of the deceased, did not appropriate or institute a cause of action for the wrongful death of his said wife within six months following the date of her death; that this action was instituted more than six months after said death of said Cleo Frances Spencer; that the death of Cleo Frances Spencer was directly and proximately caused by certain specified negligent acts and conduct of defendant as therein set forth; and that said minor children by reason of the death of their said mother had been deprived of her support, maintenance, training, instruction, leadership and care to their damage in the sum of $25,000.

In view of the particular issues presented, we need not review the particular negligence alleged, nor the circumstances attending the death of Mrs. Spencer.

The motion to dismiss was based upon certain alleged facts, the correctness of which were fully covered by a stipulation between the parties, as follows: That on or about the 28th day of November 1956 (a date within six months following the death of Cleo Frances Spencer), Edward Spencer, her husband and the natural father of plaintiffs herein, “did release the Carter Oil Company, a corporation; C. D. Schmidts, individually and in the capacity of Schmidts Appliance Company and Robert E. McLean, Sr., Thelma F. McLean and Robert E. McLean, Jr., individually and in their capacity as McLean Propane Company, from all rights, claims, liabilities, demands and suits as set forth in said release which is marked Defendant’s Exhibit A”; that Cleo Frances Spencer was injured in an explosion, as referred to in plaintiffs’ second amended petition, October 5, 1956, and died as a result of said explosion on October 6, 1956; that Edward Spencer, the father of plaintiffs and the husband of Cleo Frances Spencer, did not file any suit or civil action or cause of action in any court in the State of Missouri within six months after the death of his wife, Cleo Frances Spencer; that on July 10, 1957, the plaintiffs in this cause filed suit against defendant without disclosing that Edward Spencer had previously settled with the persons above named; that plaintiffs’ action was filed more than six months after the death of Cleo Frances Spencer, but within one year of date of death of Cleo Frances Spencer; and that on October 4, 1957, Edward Spencer, the surviving spouse of Cleo Frances Spencer, did file suit against defendant herein in the Circuit Court of Bates County for the wrongful death of his wife, Cleo Frances Spencer, which said suit was filed within one year after the date of the death of Cleo Frances Spencer but more than six months after such death.

Defendant’s motion to dismiss was based upon the theory that the action of Edward Spencer in settling for $7,500 his claims against the persons named in the above release “did thereby appropriate unto himself the claim for the wrongful death of Cleo Frances Spencer within six months of the date of death of Cleo Frances Spencer and did thereby appropriate unto himself all rights for said claim and did thereby bar any rights which the children of Cleo Frances Spencer as above-named might have for the wrongful death of their mother Cleo Frances Spencer; and that the plaintiffs in the cause herein as the result of the appropriation of said cause of action by their father Edward Spencer have no interest whatsoever and no claim whatsoever for the death of Cleo Frances Spencer, their mother.”

The release mentioned in the stipulation covers several pages of the transcript, but the particular paragraph emphasized by the parties is as follows: “It is specifically understood that the undersigned, Edward Spencer, is releasing hereby only his claim against the above-named' parties, their agents, employees, heirs, successors and assigns, and that said Edward Spencer does hereby expressly reserve any claims, right or cause of action which he may have against Robert Bradley, Bradley Gas Company, and any other individual, organization or corporation and does hereby expressly reserve any right which he may have to proceed against said Robert Bradley or any other said party.”

In the order dismissing the cause, the trial court incorporated an extended opinion, reviewing authorities and stating the conclusions reached, in part, as follows: “It thus appears that Edward Spencer, by-executing this release for a valuable consideration as recited therein, recognized that he had some type of claim against the persons named therein as surviving spouse of Cleo Frances Spencer for her wrongful death, and Exhibit A is some evidence thereof, and that his action in so executing the release is a bar to plaintiffs’ claim here, and the defendant’s position should be sustained.”

Appellants assign error on the action of the court in dismissing their amended petition and say that the question involved here “is whether, under the Missouri Death Act, a surviving spouse by executing a partial release to a party, but not all of the alleged tort-feasors who were responsible for his wife’s death, has effectively barred, appropriated and/or extinguished the balance of said claim on behalf of his deceased spouse’s children against a tort-feasor not included in the release.”

Appellants insist that “under Missouri law plaintiffs’ father could validly reserve a cause of action against the defendant and in fact did release only a part of those responsible for the death, and specifically reserved a cause of action against the defendant” ; that there is no provision in the Missouri Death Act and no judicial decision prohibiting a reserved, but unused, right of action under said Act from vesting in deceased’s minor children after the surviving spouse’s period for bringing his action had expired; and that the “legislative intent behind the Act lends support to an interpretation allowing such a vesting of the unused right; said interpretation being that each wrongdoer is liable to each proper party in his turn for the whole period of the Act’s statute of limitations unless effectively released by suit or other appropriate means.”

Respondent, on the other hand, seeks to sustain the action of the court upon the ground (1) that “a cause of action for death creates only a single cause of action under the statutes of the State of Missouri and such cause of action cannot be split between several classes of claimants”; (2) that “pursuant to Section 537.080 R.S.Mo. 1959, Edward Spencer, father of plaintiffs, was entitled, within six months after the death of Cleo Frances Spencer to appropriate to himself all claims for her wrongful death, and by executing defendant’s Exhibit ‘A’, Edward Spencer did appropriate unto himself all claims for the wrongful death of Cleo Spencer for the entire one year statutory period, to the exclusion of these plaintiffs”; and (3) that “the reservation of rights contained in defendant’s Exhibit ‘A’ runs in favor of Edward Spencer, and this reservation plus the settlement with the parties thereto is an effective appropriation of the claim by Edward Spencer so as to bar plaintiffs herein from asserting any claim for the death of Cleo Spencer, and Edward Spencer had control of any such claim against defendant for the one year statutory period.”

Respondent does not contend that the release (defendant’s Exhibit “A”) given by Edward Spencer to certain named persons in release of his claims against them for the alleged wrongful death of his wife, Cleo Frances Spencer, was a full and complete release of all claims for her death, nor does respondent question the rule that, “where joint tort-feasors are involved, a claimant may settle with part of the alleged joint tort-feasors and reserve or retain his rights against the others.” See Sec. 537.060 RSMo 1959, V.A.M.S.; Birmingham v. Kansas City Pub. Serv. Co., 361 Mo. 458, 235 S.W.2d 322, 325.

As we view respondent’s position it is that Sec. 537.080 RSMo 1959, V.A.M.S., provides for a single right of recovery for the death of Cleo Frances Spencer; that during the first six months following her death this right of recovery was vested exclusively in her surviving husband, Edward Spencer; that during this period Edward Spencer appropriated this right of recovery by the execution of the partial release t.o certain named and alleged joint tort-feasors who contributed to cause her death; that having so appropriated the right of recovery for her death during such period, he, Edward Spencer, appropriated the right as against any and all other tort-feasors causing her death; that no right of recovery passed to plaintiffs-appellants at the end of the six months’ period; and that Edward Spencer, having appropriated the right of recovery as against certain tort-feasors during the six months’ period, might thereafter exercise such right by the institution of a suit after the six months, but within the year, against other alleged tort-feasors for said death.

As stated, Cleo Frances Spencer died October 6, 1956. Sec. 537.080 RSMo 1949, as amended Laws 1955, p. 778, V.A.M.S., provided in part that: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered;

“(1) By the husband or wife of the deceased; or
“(2) If there be no husband or'wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased * * Also see Secs. 537.090 and 537.100 RSMo 1959, V.A.M.S.

This Act, prior to the mentioned modification which is not material here, had repeatedly been construed as creating in the particularly designated beneficiary or beneficiaries mentioned a single right of recovery for such wrongful death and which right would support an action for damages, based on negligence, for the recovery of financial loss to the. extent specified in the Act, and that'in such action or actions the party.or parties so vested with such single right of recovery might properly proceed by suit or suits against one or more tort-feasor, as such party might elect, and upon such grounds of negligence against the respective defendant or defendants as the facts might justify. While the right of recovery for wrongful death is often referred to as “a single cause of action” created in the designated beneficiary or beneficiaries, nevertheless it is clear from the cases that a single wrongful death may bring into existence one or more causes of action in favor of the beneficiary against one or more tort-feasors and that the liability of the different defendants might be based upon different grounds of negligence.

In the case of Cummins v. Kansas City Pub. Ser. Co., 334 Mo. 672, 66 S.W.2d 920, 930, this Court sitting en Banc adopted a long opinion by Hyde, C., (now Chief Justice) in a case involving the death of the husband, where the widow had sued within six months and died within the year and the minor children had then sued, and they were permitted to maintain the action. The Court reviewed the history of the Act and proceedings thereunder, as evidenced by the decided cases, and reached the following conclusions:

“These authorities do * * * establish the following principles applicable to cases where a man killed by the negligence of another. leaves surviving him a widow or minor children or both:
“First. The statute provides for but one cause of action which accrues at the time of a man’s death to his wife and then passes to his minor children, if she fails to sue within six months for any reason. It would, therefore, pass to them if she died within six months without suing.
“Second. Whether the widow or the children have the right to enforce this cause of action, it remains the same cause of action and passes from one beneficiary to another. They do not have a joint cause o,f action nor concurrent causes of action. It passes from the widow to the minor children as an intestate’s action passes to his administrator. * * *
“Third. When there are minor children, if the widow brings suit within six months that is an election by her to appropriate the cause of action. If there are no minor children she has the whole year in which to sue. Likewise if there is no widow the children do not have to wait six months to sue.
“Fourth. When the widow makes such appropriation, she has absolute control of the action as long as she lives. She may settle it and thereby terminate it. She may dismiss it and start another suit at any time permitted by the limitation section.
“Fifth. While as between the widow and minor children, the former is given a preferential right to sue, if exercised within six months, as between the widow and minor children and the wrongdoer the time to sue is not cut down, whether both widow and minor children survive or not and whatever may be their rights between themselves, but remains a year.”

The above case was followed in Nelms v. Bright, Mo.Sup., en Banc, 299 S.W.2d 483, 487, where the Court held that: “The wrongful death statutes creates but one indivisible cause of action which remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute”; and that where a wife was killed and her husband did not .sue within six months only one of the two surviving minor children could not maintain the action because “neither minor child has a separate interest in the compensation authorized by the wrongful death statute which he or she may sue for, alien, or release prior to the rendition of the judgment therefor.” And see Fair v. Agur, 345 Mo. 394, 133 S.W.2d 402, 404.

In the case at bar it is admitted that Edward Spencer survived his wife and within six months executed the partial release in question and both the appellants and respondent cite all of the foregoing cases. It is admitted, as stated, that on November 28, 1956, following deceased’s death on October 6, 1956, that Edward Spencer executed the mentioned partial release, received the $7,-500 allegedly “paid in compromise of a doubtful and disputed claim”, and that Edward Spencer had released the named parties from liability to him on account of the “alleged wrongful death of said Cleo Frances Spencer.”

While it is admitted that Edward Spencer instituted no suit or action within six months against anyone for the alleged wrongful death of his said wife, this Court has construed the mentioned Act as not requiring a beneficiary to in fact “sue” or institute a suit if the right to recover for such wrongful death was otherwise appropriated by the designated beneficiary within the mentioned time, as by the execution of a release. Hamilton v. Missouri Pac. R. Co., 248 Mo. 78, 154 S.W. 86; Blessing v. Chicago, B. & Q. R. Co., Mo.Sup., 171 S.W.2d 602, 603(4, 5). And see Myers v. Kennedy, 306 Mo. 268, 267 S.W. 810, where the court, in an action against an automobilist for a wrongful death caused by his and a streetcar company’s concurrent negligence, held that the action was not barred by the plaintiff’s covenant not to sue latter in the absence of full satisfaction for the injury sustained. The Court further pointed out that whether the liability of the tort-feasors springs from the same rule of the common law or the same statute or different rules and statutes, all are liable and what is done by one of them cannot affect the liability of the other unless what is done by him amounts to satisfaction in fact or by legal implication.

Appellants take the position that Edward Spencer by the settlement with the parties named in the partial release appropriated (as to these parties only) the cause or causes of action against them for the wrongful death of Cleo Frances Spencer, and that by excepting from the release any claim or cause of action against respondent the said Edward Spencer did not appropriate any such cause of action against said respondent, nor did he sue thereon within six months and hence this cause of action passed under the statute to plaintiffs-appellants, who could and did sue within the year after their mother’s death. We find no merit in this contention because it is well settled that the cause of action or right to .maintain an action and recover for a wrongful death of any person is a single right and the right is vested in specific beneficiaries, although the basis for recovery or the cause or causes of action against one or multiple defendants to enforce said right may be based upon any number of assignments of common law or statutory negligence. In other words, the cause of action or right to sue and recover for a wrongful death is a single right and vested in specific beneficiaries, as set forth in the statute, but the beneficiary or beneficiaries in whom this right is vested may have multiple causes of actions on common law or statutory grounds against named defendants for joint or concurrent negligence causing the mentioned death.

As we see it our question here is, did the execution of the partial release to those parties named therein also constitute the appropriation by Edward Spencer of the cause of action or right to sue and recover for his wife’s wrongful death, not only as to the alleged tort-feasors named in and released by that instrument, but also as to all other persons who might be properly charged with the alleged wrongful death? We think the applicable cases satisfactorily lead to the last conclusion, to wit: that, the right of recovery being single, the appropriation of it as to one alleged tort-feasor was an appropriation as to all others as well, so that in this case the appellants may not maintain their action against the respondent.

In the case of Packard v. Hannibal & St. Joseph R. Co., 181 Mo. 421, 80 S.W. 951, the record shows that, subsequent to the death of her husband, the widow brought a suit within six months against one railroad company under the impression that it was the sole wrongdoer. Thereafter, after the lapse of six months, the minor children of the deceased- brought a suit within the year against another company, the Hannibal & St. Joseph R. Co., on the theory that their mother had brought her suit against the wrong party. The Court, however, held that the widow by bringing her suit within six months had appropriated the cause of action to herself and thereby' forever took away from the children the right to sue. In that case the Court said: “That Mrs. Packard brought her suit against the Rock Island Railroad within the six months is conceded, but the contention of plaintiffs is that, while it is true she sued the Rock Island, she did not sue the Hannibal & St. Joseph Company, the wrongdoer; that she failed to recover because she sued the wrong party, and therefore she did not appropriate the right of action against the Hannibal & St. Joseph Company.” The Court further said: “Mrs. Packard having brought her suit within the six months, the entire cause of action became hers absolutely, and remained in her in her own right 'and not as next friend of her • children. * * * Having appropriated the right, she had absolute control of it. Her right of action was • against all whose negligence caused the death of her husband. Having plenary control of the action, she was at liberty to sue them all jointly, or as many as she saw fit. It is true, there could be but one satisfaction, but until satisfaction all the negligent parties were liable, at her election.” (181 Mo. 421, 427, 429, 80 S.W. 953.)

In the case of McNamara v. Slavens, 76 Mo. 329, the plaintiffs, children of the deceased, brought a suit for the wrongful death of their father. However, it appeared that their mother, a widow, had instituted her suit previously for the father’s death and, thereafter, dismissed and did not renew said suit. The Court dismissed the children’s suit and, as to the right of recovery for wrongful death, said: “It is a cause of action created by the statute, and no one can sue unless he bring himself within its terms. It is not a joint right of action in the husband or wife and the children. The statute gives the surviving husband or wife six months within which to elect to appropriate the cause of action, the election to be made by the institution of a suit. If the surviving husband or wife sue within six'months, that is an exercise of the option given by the statute. He or she then has as absolute control of the cause of action as to any common law right of action he or she may have, and may compromise, release or otherwise settle the matter in controversy with the defendant. * * * By the commencement of the suit by the mother, within six months after the death of the father, the right of the children to sue was forever taken away.” (76 Mo. 329, 331.)

In the case of Huss v. Bohrer, 317 Mo. 204, 295 S.W. 95, 97, a widow with minor children within six .months commenced a suit for her husband’s wrongful death but, thereafter, dismissed it and then instituted a second suit within a year after said death. The Court said: “The bringing of the suit fully vested the cause of action in her to the exclusion of the minor children. Re.gardless of the subsequent disposition made of that suit, her right to the action was thereby irrevocably established and that of the children forever cut off. * * * Having so acquired the cause of action to the exclusion of the minor children, by the performance of the condition prescribed by section 4217 [RSMo 1919], plaintiff could thereafter sue to enforce the same within the time limited by section 4221, namely, one year after the cause of action accrued.”

In the case of Meyer v. Pevely Dairy Co., 333 Mo. 1109, 64 S.W.2d 696, the widow brought her suit for the wrongful death of her husband against one defendant within six months, and thereafter within one year from said death, she added a new party as defendant. It was contended that the cause of action, if any, against the added party had, after a lapse of six months, become vested in the minor children of the deceased. The contention was denied and the Packard, Huss and McNamara cases, supra, were cited in support of the Court’s conclusion.

In the case before us, it appears as a matter of law on the admitted facts that, by the execution of the mentioned partial release to the named parties for the alleged wrongful death of Cleo Frances Spencer, within six months after her death, Edward Spencer, her husband appropriated the right to sue and recover for her alleged wrongful death and appropriated said right not only against the alleged tort-feasors which were released, but also as against all other tort-feasors who might be charged with responsibility for her death, including the defendant-respondent herein, and that by so appropriating said right of action any right of recovery in the minor children (appellants herein) was forever cut off.

The court did not err in dismissing the plaintiffs’ second amended petition. The judgment is affirmed.

All concur.


author: HUNTER, Presiding Judge.

text:
    Antoinette CAMMISANO, Respondent, v. HARTFORD LIVESTOCK INSURANCE COMPANY, Appellant.
    No. 23348.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      John C. Gage, Gage, Hodges, Moore, Park & Kreamer, Kansas City, for appellant.
    Joseph P. Spallo, August V. Spallo, Spallo & Spallo, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an action on an insurance policy by plaintiff, Antoinette Cammisano, against defendant, Hartford Livestock Insurance Company, for damages for the loss of- life of her horse, Lowry Girl, for vexatious delay and for attorney fees. The cause was tried to the court. Plaintiff was awarded a judgment of $1,500 from which defendant has appealed.

Since this is an action at law tried by the court without a jury it is our duty to review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous. Our final duty is to affirm the judgment appealed from or direct such judgment as justice requires. Section 510.310 RSMo 1959, V.A.M.S.; Browder v. Milla, Mo.App., 296 S.W.2d 502.

As a result of our own review of the transcript we adopt and set out the Finding of Facts of the trial court as accurate, and, while succinct, sufficient for a full understanding of the questions presented on this appeal.

“This is an action on a livestock insurance policy issued by the defendant company insuring plaintiff’s mare in the amount of $1,500.00 — ‘A. Against loss by death from natural causes, to include death from illness or disease or accident. * * * (except as herein otherwise provided, limited and excepted.)”’

“B. Against loss caused by .the intentional destruction of any animal or animals insured hereby within the term of this policy, but only and not otherwise when such loss caused by the intentional destruction occurs under either of two circumstances, to wit:

“1. Where complete fracture of a bone or bones occur by accidental injury and where because of such fracture immediate destruction is necessary and a certificate from a licensed veterinarian certifying that such destruction was immediately necessary shall have been obtained prior to the destruction of such animal or animals.
“2. Where this company shall consent to such destruction.
“II
“On June 21, 1959, during the term of the insurance policy, plaintiff’s mare was accidentally injured when she and other horses became frightened and she was crowded into a Jeep, resulting in deep wounds to the left foreleg and the complete severing or sawing of the pectoral muscles, which are the muscles which attach the left foreleg to the body, and she also sustained two fractures of the splint bone in the left foreleg. The horse was taken to a qualified veterinarian, who placed her in surgery for some five and a half hours and continued to treat her at his hospital for some twelve days.
“HI
“The insured gave notice to the defendant of the accident and requested that.the defendant’s agent inspect the animal. Blank report forms were given to the insured, calling for a report by the veterinarian. This report was completed by Dr. Pilcher, the treating veterinarian, on June 29, 1959, and transmitted to the company, in which the horse’s condition was described as ‘fair’, with a ‘guarded diagnosis’ as to her recovery. Defendant’s agent duly reported the matter to the defendant’s home office, but no inspection of the horse was made at any time by the company’s representative.
“IV
“After twelve days of treatment at the veterinary hospital, the wounds were open and sloughing and seemed to be progressing satisfactorily. Plaintiff then took the horse back to her farm, and the treatments were continued by plaintiff’s husband as directed by the veterinarian, using medicines that had been obtained from the veterinarian.
“On July 13, the animal’s condition became worse and Dr. Davies, another veterinarian, was called and found at that time that gangrene had developed throughout the entire foreleg to the extent that the horse could not be treated medically and her death was imminent. He destroyed the animal to relieve her of her suffering. The evidence shows that because of the nature of the injuries, gangrene would probably have developed and that gangrene can develop within a period of two to three days or from two to three weeks. Notice of the animal’s death was duly given to the company and demand made by the plaintiff for payment under the policy, which the company refused.
“V
“The Court finds that the gangrene was the natural result of the injuries sustained by the horse and that such injuries would have caused her death within a few days, and that her destruction by Dr. Davies was a humane act necessary to relieve her of her suffering, but such destruction did not change the fact that the primary cause of death was the injury accidentally sustained by the animal.”

The trial court then entered the following conclusions of law and judgment:

“I
“The Court finds that the proximate cause of the animal’s death was the accidental injuries sustained when she ran into or was forced into the Jeep.
“II
“The Court finds that plaintiff is entitled to recover under coverage ‘A’ of the policy.
“Ill
“The Court finds that the defendant’s refusal to pay was not vexatious within the terms of the Missouri statute.
“Judgment
“It is therefore ordered, adjudged, and decreed that plaintiff have judgment against the defendant in the sum of $1,500.00 with interest at 6% from July 13, 1959, to date, together with her costs.”

As its principal appellate contention defendant asserts the trial court erred in rendering judgment for plaintiff based upon coverage provisions of the insurance policy relating to death from natural causes for the reason the uncontroverted evidence showed that the death of the horse resulted from intentional destruction not within the coverage provisions of the policy. Defendant argues that since it is uncontro-verted that the horse was shot — Clause B (loss by intentional destruction) of the above set out policy provisions controls, and that since plaintiff admits there was no complete fracture of a bone or bones nor a certificate of a licensed veterinarian certifying that destruction was immediately necessary obtained prior to the destruction, nor company consent to destruction obtained as required by Clauses B(l) or B(2) there can be no recovery under the terms of the policy.

Plaintiff contends she is entitled to recover for the loss of her horse under Clause A of the insurance contract for the reason that Clause A insures “Against loss by death from natural causes, to include death from illness or disease or accident * * Plaintiff asserts the uncontro-verted evidence shows that the proximate and direct cause of the death of her horse was the accident it suffered on June 21, 1959, which resulted in injuries and gangrene making its death a certainty and necessitating its destruction purely for the humane purpose of sparing it further suffering as inevitable death approached. Thus, says plaintiff, her horse died “from natural causes, to include * * * accident” and Clause A insures her for precisely that type of loss. Plaintiff denies that Clause A is modified or affected by Clause B so as to prevent her recovery under Clause A.

The principles which we must apply in resolving the contentions were given recent expression by our Supreme Court in Thompson v. B & G Wrecking & Supply Company, 346 S.W.2d 65, 68: “In the construction of the policy, the rules to be followed are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, in so far as open to different constructions, that most favorable to the insured must be adopted. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 614, et seq., 267 S.W. 379, 381, 382. However, as said in 14 R.C.L. § 103, p. 931, the rule ‘does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating ambiguity when none exists * * ” Our duty is to ascertain and give effect to the intention of the parties as disclosed by their contract.

The insurance policy contract, as we view it, has two insuring clauses. The first, Clause A insures against loss by death from natural causes including accident. It is clear under the facts of this case that the proximate — the direct — the true cause of the death of the horse was its accident which brought on gangrene so widespread and so located on the horse’s body as to make death an imminent certainty. Illustrative is the case of Stucker v. Hartford Accident & Indemnity Co., 220 Ark. 475, 248 S.W.2d 383, 384, cited by both parties. There, also, the suit was upon a policy insuring the life of a saddle horse against death caused by disease and accidental injury. The complaint alleged the horse was accidentally injured and later destroyed by a veterinarian for humane reasons. The proof showed the animal was accidentally injured on May 14, 1951, that its condition became progressively worse and that in July the attending veterinarian deemed the animal incurable and destroyed it. The court stated, “In these circumstances we think it plain that the jury could have found that the accidental injury was the direct and proximate cause of the animal’s death. Appleman, Insurance Law and Practice, § 3151. The necessity for destroying the horse was due solely to the accidental injury and did not constitute a superseding factor in the chain of causation. Rest., Torts, § 443. The situation is analogous to that in which an insurer against fire is held liable also for water damage incident to attempts to extinguish the blaze; the loss is still caused directly by fire.” See, also, National Live Stock Ins. Co. v. Elliott, 60 Ind.App. 112, 108 N.E. 784. In 5 Appleman, Insurance Law and Practice, § 3151, page 299, it is expressed, “Where the death of an animal has occurred by the act of the owner he will be entitled to recover the insurance if the act was necessary and done in good faith.”

Clause A insures for loss from death caused by accident. There can be no doubt but that if the policy did not contain Clause B, the loss in question would clearly come within the terms of the policy. What is the effect of Clause B on Clause A? Clause B itself is a separate insuring clause covering loss from death by intentional destruction where certain conditions exist and certain requirements are met. On its face it is an independent insuring clause against loss by intentional destruction and then only under two limited circumstances. It does not purport to change, modify or limit Clause A. Its very grammatical construction indicates it is a separate insuring clause.

Defendant contends that part of Clause A reading, “except as otherwise provided limited and excepted” refers to Clause B and that Clause B limits Clause A. We do not think so. Clause B’s language does not appear to be any limitation or exception to death caused by accident as provided in Clause A but rather provides coverage additionally to that provided in Clause A— i. e. death caused by intentional destruction. Reading the insurance contract as a whole it seems that the words in Clause A “loss by * * * accident * * * except as herein otherwise provided, limited and excepted” refers to portions of the policy other than Clause B, such as its limitation of recovery of loss to an amount not “exceeding the amount for which the animal is stated to be insured in the schedule written in this policy, nor in any event exceeding its actual cash value at the time injury or disease causing loss is sustained or contracted,” etc. Loss by intentional destruction and loss by accident are not the same.

Defendant asks what purpose do insuring Clause B(l) or B(2) serve if not to limit Clause A? Several suggestions might be made. Clause B insures in situations not covered by Clause A, as for example if the horse was crippled, useless, and in some pain yet was not about to die, and its owner wished to destroy it. Clause B(2) would permit the animal’s destruction if the company’s consent was first obtained. Other conditions being met Clause B(l) would permit recovery where death was by intentional destruction if there were an accidentally caused complete fracture of a bone and the mentioned certificate obtained. In such circumstance it would appear to be unnecessary to secure the consent of the •company nor prove as a fact, as in a trial, that the death was actually caused by accident. The prior obtaining of the certificate apparently would be sufficient. Thus, the Insuring Agreements of Clause A and Clause B are unlike, are not dependent upon each other and not limitations or ex•ceptions on each other.

Defendant relies heavily on the Stacker •case, supra, as supporting its contention that Clause B limits Clause A. The policy in the Stacker case was drawn differently than the policy in the case at bar. In the Stacker case all of the language, including that which defendant says is similar to that .before us in Clause B, is contained in one sentence and in one paragraph — the principal insuring clause of the policy. The court viewed the critical language as being, “provided, however, the company shall not be 'liable for humanitarian destruction except din the following circumstances”, etc., and said it was an exception to coverage which did not add protection but took it away. Such a clause contained in the same sentence and same paragraph as the insuring clause is subject to the interpretation that it was intended to limit the sentence in which it was contained. In the case before us Insuring Clause B is a separate paragraph, differently worded, and with the same insuring structure as Clause A. “A. Against loss by death * * * to include * * * accident * * “B. Against loss caused by the intentional destruction * * The effect is the same as though the company had said at the beginning of each of the two paragraphs “We insure against loss by accident”, etc., “We insure against loss by intentional destruction,” etc. We think the Stacker case is distinguishable and not persuasive on the point under consideration.

As we view the insurance policy it is not ambiguous. The loss in question is covsred thereby in Clause A and is unaffected by Clause B. Even if we assume that one of the constructions that might be placed on the insurance contract is that Clause B does limit Clause A, it would not aid defendant, for in so far as this insurance contract may be open to different constructions that one most favorable to the insured must be adopted. Thompson v. B & G Wrecking & Supply Company, supra.

Defendant next suggests plaintiff should not be permitted to recover because in her petition she stated Clause B was the applicable provision with respect to the extent of coverage. Plaintiff alleged the purchase of the insurance policy in question, charged “that the defendant has breached the contract by refusing to pay the plaintiff said $1,500.00,” and stated all the essential facts for a recovery under Clause A. Defendant itself attached the entire policy to its answer, made it a part thereof; admitted it was in full force and effect, denied that Clause B provided coverage “and further states that other applicable provisions are contained in the said policy of insurance * * The case was fully and carefully tried to the court who ruled Clause A was the controlling clause on liability. In its motion for new trial defendant did not assign as error its contention that plaintiff changed its theory of recovery, contenting itself with the general allegation that upon the face of the pleadings (includings its answer which incorporated the entire insurance policy) the defendant was not entitled to any relief. Defendant did not claim surprise or demonstrate prejudice. Nor has defendant assigned its contention of change of theory as one of its points relied on in its brief in this court. We find no merit in defendant’s present contention that the trial court committed reversible error in its finding of liability under Clause A of the contract or that defendant is precluded from relying upon that finding on appeal.

The judgment is affirmed.

All concur.

      . The bracketed portion of the policy was omitted from the trial court’s findings, and this court lias included it as a part of its findings.

      . In the retrial of the Stacker case, 222 Ark. 268, 258 S.W.2d 544, the facts were detailed showing the horse which was purchased for $50 and insured for $1,000 had only a muscle injury which was not stated to be a mortal injury, and the insurer refused to give consent to its destruction.


author: CROSS, Judge.

text:
    Linden C. BARTLETT and Alice Bartlett, his wife, Plaintiffs-Respondents, v. HUME-SINCLAIR COAL MINING COMPANY, a corporation, Defendant-Appellant.
    No. 23264.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      Belisle & McNabb, Butler, for appellant.
    Ewing, Ewing, Ewing, Carter & Wight, Nevada, Mo., for respondents.
   CROSS, Judge.

Plaintiff landowners sue defendant coal mining company for damages allegedly resulting from pollution of streams running through their farm lands caused by defendant’s mining operations. Defendant appeals from a jury verdict and judgment in favor of plaintiffs in the amount of $1,600.

The allegations of the petition are, in substance, as follows: Plaintiffs, husband and wife, owned a 299 acre farm in Bates County. Two natural streams flowed through the farm, one bearing the name “Walnut Creek”, the other designated only as the “east branch”. Prior to 1951 those streams afforded a supply of pure water used for domestic and farm purposes and were valuable rights and property of the plaintiffs. Defendant operated “strip” coal mines for several years prior to 1951. In the course of those operations, defendant operated a strip mine at a point west of plaintiffs’ farm, and there erected a “tipple” and a coal processing and washing structure known as “Tiger Tipple”. Defendant operated another such mine, “tipple”, and processing and washing structure at the town of Foster, known as the “Foster Tipple”. -By means of those processing plants, defendant removed from the mined coal certain impurities consisting of coal dust, rocks and other materials containing chemical substances and compounds. The impurities were dumped or deposited by defendant upon its land in large quantities and over large areas. Through the years water accummulated in and became contaminated by the impurities and chemical substances so dumped and deposited. That water, after being contaminated, flowed from defendant’s dumps and lands into streams which discharged into and polluted Walnut Creek and the east branch running through plaintiffs’ farm. Those conditions existed in 1954 and 1955 until the filing of :the petition. As a result, plaintiffs suffered loss and damage in that: their cattle and other livestock were sickened and depreciated in weight and value; plaintiffs lost the use of the -water as a source of supply for livestock; they lost the use of valuable pasture and crop land; their trees were killed; the land adjacent to the streams was damaged and rendered useless; the entire farm was damaged and its value decreased. Plaintiffs prayed damages and that defendant be enjoined from permitting further pollution of the streams. Defendant’s answer was a general denial.

The case was tried only as to the issue of damages. The trial court deferred any ruling on plaintiffs’ prayer for injunctive relief until a later date. Plaintiffs produced evidence generally tending to prove the allegations of their petition. Such portions of the evidence as are necessary for discussion of points raised by defendant will be appropriately noted.

Defendant first assigns that the trial court erred in failing to sustain its motion for judgment at the close of all the evidence because plaintiffs’ evidence failed to show that defendant owned, leased, controlled or had any right of control over the land claimed to be the cause of the pollution. In our opinion the assignment is inappropriate because it is directed to matters outside of and foreign to the issue of defendant’s liability for damages as pleaded, tried and submitted. The gravamen of the wrong attributed to defendant is the commission of acts creating the ditches and dumps and filling them with noxious substances which contaminated the streams — ■ regardless of whether defendant was landowner, lessee, licensee or trespasser. The case was submitted on that theory. As stated in 66 C.J.S. Nuisances § 88, “It is not necessary in order to charge a person with liability for a nuisance that he should be the owner of the property on which it is created, but it is sufficient that he created the nuisance”. Also see: Vaughn v. Missouri Power & Light Co., Mo.App., 89 S.W.2d 699; Brown v. City of Marshall, 228 Mo. App. 586, 71 S.W.2d 856. Plaintiffs’ verdict-directing instruction required no finding that defendant “owned, leased, controlled or had the right to control” the land in question. The findings required were “that the pollution of plaintiffs’ east branch was caused by drainage from an area used by defendant Hume-Sinclair Coal Mining Company just east of Foster, Missouri, as a dump for refuse coal and coal impurities * * * ” (and identical findings with reference to Walnut Creek and Tiger Tipple). The record abounds with uncon-tradicted evidence that defendant alone operated the mines at Foster and Tiger, and used the respective “area” of each mine site “as a dump for refuse coal and coal impurities”. Aside from the foregoing, it is inconsistent for defendant to contend on this appeal that there was no evidence ;t owned the land sites of Tiger and Foster mines and dumps. During the trial both parties, defendant as well as plaintiffs, treated as an existing fact that defendant was the owner of the land — even presently. Defendant submitted instructions (given by the court) which amount to voluntary admissions that it owned the land. For example, defendant’s Instruction No. 4 told the jury “that the burden of proof in this case is upon the plaintiffs to prove by the greater weight of the credible evidence (1) that harmful and polluted water did come from the defendant’s land at the date charged in plaintiffs’ petition;”.

Defendant further contends that plaintiff failed to make a submissible case because “Plaintiffs’ evidence failed to prove that Walnut Creek on plaintiffs’ land was polluted, as that is a question for an expert and there is no such testimony”.

Defendant argues that the testimony of lay witnesses is incompetent to establish the fact that a stream is polluted. We cannot accept that proposition as an established rule of evidence. Defendant cites one authority — 93 C.J.S. Waters § 54. It is therein stated that “the question of whether the waters from [a stream] emitted disease germs is one for expert testimony”. That statement has no present application because there is no controversy in this case concerning the presence or absence of specific disease germs. The cited authority contains additional statements materially in the disinterest of defendant on this point, quoted as follows on page 708: (1) “Pollution of a watercourse and the damages sustained as a result of the pollution, can be established by circumstantial evidence”. (2) “Where other competent evidence shows that the water is polluted, proof by chemical analysis is not necessary”. The case of Shelley v. Ozark Pipe Line Corporation, 327 Mo. 238, 37 S.W.2d 518, 523, clearly illustrates the permissible use of lay testimony to prove the contamination of water by a polluting substance — oil. The only evidence in that case tending to prove the presence of oil was the testimony of plaintiff himself and other nonexpert witnesses. The defendant, in addition to general contradictory evidence, introduced the testimony of two experts. A Drury College geology professor and an experienced chemist both made technical tests and testified they found no evidence of oil in the water. The Supreme Court said: “We are much impressed with the evidence of the defendant on the merits of the case. Since, however, the record contains substantial evidence from which the jury could find that oil had escaped from defendant’s pipe line after January, 1922, and contaminated the water on plaintiffs’ land, we must defer to the finding of the jury”. In the present case, plaintiffs produced evidence that: the water turned yellow; the livestock wouldn’t drink it; timber along the branch died; the water was hitter and smelled — “a sort of sulphur smell”; “it stunk like sulphur”; ■fish in the stream died; “in ’55 it killed them by the wagon loads”; the water has been blue, brown, red, yellow, “and just a terrible looking stuff”, and the bottom of the creek was covered with precipitates; the water would kill crops, rust out wire faster than usual and burn a man’s hand; there is scum on the water, even in the winter time. The narrated evidence justifies the submission of the pollution issue to the jury.

Defendant next urges that plaintiffs’ case was not submissible as for temporary damages because there was no evidence that the “nuisance” was abatable. Therefore, defendant argues, the court should have treated the nuisance as permanent and submitted the case upon .the basis of permanent damages- — to be recovered in one action.

Defendant fails to take into account one other factor necessary for our consideration in determining the proper measure of plaintiffs’ damages — i. e., whether the injury caused by. the nuisance is temporary or permanent. 66 C.J.S. Nuisances § 175, states the following rule: “Where the injury is temporary or remediable, the measure of damages is not the depreciation of the value of the property, but the depreciation of the rental or usable value during the continuance of the injury * * *; and damages as for a permanent injury cannot be allowed where the injury is temporary or the nuisance removable”. The quoted rule is observed by Missouri courts. See Bollinger v. American Asphalt Roof Corporation, 224 Mo. App. 98, 19 S.W.2d 544, and Shelley v. Ozark Pipe Line Corporation, 327 Mo. 328, 37 S.W.2d 518. So, even if the evidence tended to establish that the nuisance was permanent, and the trial court so found, it still would have been error to submit the case on a measure of permanent damages (depreciation in value of the freehold) unless there was substantial evidence that the injury and damages sustained by plaintiffs were also permanent. There is no such evidence in the record. On the contrary, the evidence points only to the sustention of temporary and special damages including: the loss of the streams for farming purposes ; the inconvenience suffered and extra labor required; loss of the recreational use of one of the streams; loss of and damage to livestock; loss of use of pasture lands; damage to land and trees; extra expenses incurred in providing a water supply. Plaintiffs’ measure of damage instruction was based on and incorporated the enumerated items of loss and damage (amounting to loss of rental value and special damages) and permitted the jury to return a verdict therefor. We believe the instruction correctly submitted the issue of damages and that the trial court committed no error by giving it.

Defendant in its remaining points complains of plaintiffs’ instructions, but fails to incorporate them in its brief or to state their substance. See Civil Rule 83.05, V.A.M.R. It is first urged, without particularization, that those instructions, three in number, are confusing and misleading. The point is not preserved for review.

Next, complaint is directed against plaintiffs’ Instruction No. 1 on the ground that it misstates the law, for the alleged reason it tells the jury that defendant is liable for all damages suffered by plaintiffs, without regard to the effect of pollution caused by other parties. Instruction No. 1 is an abstract statement of law (not objected to because abstract in form) which incorporates the statement “ * * * that it is no defense to an action for pollution that others may also be polluting the same stream”. Defendant admits that it is no defense that other parties may pollute a stream, but insists its liability is for only such damages as are proven by plaintiffs to be the result of defendant’s acts. In this regard, defendant has no meritorious ground of complaint. Plaintiffs’ verdict-directing instruction (No. 2) specifically requires a finding that the pollution was caused by defendant’s dump areas. Additionally, defendant’s own instruction, No. 4, informs the jury that plaintiffs must prove “that the defendant caused said water to be polluted” in order to recover a verdict.

Defendant also contends that plaintiffs’ instructions numbered 2 and 3 are misstatements of the law, but says of them only that “each constitutes a misstatement of the law of abatable nuisance and the elements of damages properly submissible thereunder”. Again, no determinable question is raised.

Defendant’s final contention is that plaintiffs’ instructions and defendant’s instructions are in conflict and submit contrary theories of law. We are not informed by defendant how or in what manner any conflict exists. We are not told what contrary theories of law defendant claims were submitted in the instructions. The point raises nothing for our decision.

The judgment is affirmed.

All concur.


text:
    William ADAIR, James Adair, Julia Young, Joe Adair, Martha Tyler, Kathryn Fairchild, and Shirley Treasure, Respondents, v. N. W. ELECTRIC POWER COOPERATIVE, INC., a Corporation, Appellant, v. Minnie ADAIR, Co-Respondent.
    No. 23212.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    Russell N. Pickett, Eugene E. Andereck,. Phil Hauck, Pickett, Andereck & Hauck, Trenton, C. P. Junge, Cole Camp, for appellant.
    William J. Cason, Clinton, for co-respondent.
   HUNTER, Presiding Judge.

Plaintiffs, William Adair, James- Adair, Julia Young, Joe Adair, Martha Tyler, Kathryn Fairchild and Shirley Treasure, on May 15, 1957, brought this action in the Circuit Court of Henry County for $10,000 damages for trespass against defendant, N.W. Electric Power Cooperative, Inc., for ■constructing an electric transmission line across a 290-acre farm in Henry County, Missouri, without first having obtained from them an easement or right through eminent domain to do so. The defendant Power Cooperative interpleaded Minnie Adair, the mother of the seven plaintiffs, as third party defendant and prayed to recover from third party defendant an amount equal to any judgment plaintiffs might recover against defendant. Third party defendant, Minnie Adair, had been informed by defendant’s agent that she, Minnie Adair, was the sole owner of the farm and she, in good faith believing it, at the request of defendant who also believed it, gave defendant an easement under the terms of which she covenanted in effect that she was the sole owner and would warrant and defend title thereto. Third party defendant pleaded mutual mistake in executing the easement, conceding her interest in fact to be only a Dower, and prayed that the easement be rescinded or reformed. Defendant replied that by reason of a prior judgment in the Circuit Court of Henry County the validity of the easement between third party defendant and defendant was Res Judicata and not subject to rescission or reformation.

Additional factual background as developed at the trial aids in understanding the question presented on this appeal.

Plaintiffs and their mother, Minnie Adair, own the farm in question, each plaintiff owning one-seventh interest subject to the mother’s dower’s interest. However, record title to the farm appeared to be in the mother, and all thought she owned all of it. Plaintiffs and third party defendant treated the farm as if solely owned by third party defendant at the time the easement was taken. Defendant paid her $554 for the transmission line easement and construction thereunder. The transmission line was built in the spring of 1953 and it was not until 1957, four years after the line was built, that any of the children claimed that they owned the farm, although they knew about the construction of the line.

After the line was constructed, and on November 18, 1955, Minnie Adair filed suit against defendant on the mentioned transmission line easement in an action titled: Minnie Adair, Plaintiff vs. N. W. Electric Power Cooperative, Inc., Defendant, No. 5615, to recover pole allowance as provided in the easement deed and damage done to her crops during construction of the power line. On June 7, 1956, she received a judgment for $300 and costs, which judgment has been satisfied.

The present suit was first tried in the Circuit Court of Benton County and plaintiffs had judgment in the sum of $3,497.83 as damages for trespass committed in the construction and maintenance of the electrical transmission line across the 290-acre farm. The judgment vested in defendant a permanent easement across the farm. Defendant appealed to this court contending, among other things, that the trial court had no power to reform Mrs. Adair’s easement deed, relying as a bar upon the previous adjudication in the Henry County suit wherein she had recovered $300. This court held that judgment in the Henry County suit was not a bar to the present suit and relief requested; that the trial court “had the right to consider recission and reformation of the easement deed”; there being ample evidence to support the finding that such deed was the result of mutual mistake; but because of improper prejudicial closing argument reversed and remanded the cause for a new trial. See, Adair v. N. W. Electric Power Cooperative, Inc., Mo.App., 329 S.W.2d 33.

On retrial to the court and jury, the jury returned its verdict for plaintiffs and third party defendant against defendant for $5,000 as the damage to the entire tract caused by the electrical transmission line and the 100 foot wide right-of-way appropriated in connection therewith. The trial court then entered judgment reforming the easement taken from third party defendant by limiting warranties of title therein conveyed to the actual interest owned by third party defendant and on the date of execution of the easement, and reducing the amount of judgment to $4,372 by crediting defendant for the third party defendant’s computed interest in the damages assessed by the jury, and ordered costs against defendant.

On this appeal defendant has contented itself with the single contention that the trial court erred in reforming the easement given by Minnie Adair by limiting her warranty of title to her actual interest because “(a) Under the doctrine of Res Judicata it was not within the power of the trial court to make such reformation of the easement; and (b) the same matters asserted in the third party defendant’s cross bill were previously adjudicated in the Circuit Court of Henry County, Missouri.”

This is the precise contention defendant made in its appeal to this court following the first trial, and this court disposed of that contention in its opinion. See, Adair v. N. W. Electric Power Cooperative, Inc., Mo.App., 329 S.W.2d 33, 35(2). Defendant now contends this is not the law of the case, suggesting (a) it is dicta (b) since the case “was previously remanded upon another point of error defendant had no opportunity to labor this matter on Motion for Rehearing or Motion to Transfer to the Supreme Court” and (c) in any event this court should make a critical re-examination of the point.

The ruling of this court that the trial court, under the facts then appearing and which are the same facts now appearing, did have the right and power to consider rescission and reformation of the easement deed on retrial and that the prior judgment in mentioned Case No. 5615 is no bar to such relief in this case, is not dictum. Rather, it is the opinion of this court on an issue necessarily involved in the case and the disposition of which was necessary to the proper disposition of the appeal. On retrial it is a part of the law of the case, and on appeal absent manifest or palpable error, should remain the law of the case. See, Wilson v. Toliver, Mo.Sup., 305 S.W.2d 423; Pritt v. Terminal R. R. Ass’n of St. Louis, Mo.Sup., 251 S.W.2d 622; Seibert v. Harden, 319 Mo. 1105, 8 S.W.2d 905; 5B C.J.S. Appeal & Error §§ 1821 and 1822.

We have carefully reconsidered our former opinion and especially that portion concerning the Res Judicata question and are convinced that it is not palpably erroneous but rather is sound both in result and in the legal principles pronounced therein. It remains the law of the case.

The judgment is affirmed.

All concur.


author: DICE, Commissioner.

text:
    Cedric CHRISTA, Appellant, v. STATE of Texas, Appellee.
    No. 33935.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Edward D. Michalek, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for unlawfully selling fireworks in violation of a penal ordinance of the City of Houston.

The case arose in the Corporation Court of the City of Houston. Upon conviction in that court, appellant appealed to County Criminal Court No. 3 of Harris County, where he was again convicted and assessed a fine of $101. From the conviction, in County Criminal Court No. 3, the appeal to this Court is prosecuted.

The complaint upon which appellant stands convicted is fatally defective because it does not name the purchaser to whom it was alleged that appellant sold or offered to sell the fireworks.

Article 406, Vernon’s Ann.C.C.P., requires that in prosecutions for an unlawful sale the State’s pleadings must name.the purchaser. The requirement of this statute has been given effect in prosecutions for unlawfully selling fireworks. See Threadgill v. State, 163 Tex.Cr.R. 426, 292 S.W. 2d 121.

The State, for the reasons stated, confesses error and does not pray for an affirmance of the judgment of conviction.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.


author: BELCHER, Commissioner.

text:
    Eddie BLUE et al., Appellants, v. STATE of Texas, Appellee.
    No. 33787.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.

      See also 341 S.W.2d 917.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This cause, on a former appeal, was reversed. See Blue et al. v. State, 341 S.W. 2d 921.

The sole contention of the appellants on this appeal is that the trial court erred in holding that the reversal on appeal gave it jurisdiction of them on a retrial by virtue of Rule 123, Texas Rules of Civil Procedure. They contend that said rule is not applicable in bond forfeiture cases, and that the action of the trial court renders the final judgment herein fundamentally erroneous.

The judgment nisi relied on as the basis of the final judgment, which was reversed on appeal, is also relied on in this case. It was introduced in evidence on the instant trial, and its provisions meet the requirements of Art. 425, Vernon’s Ann.C.C.P. The former appeal and reversal of this case makes it evident that the final judgment herein was not rendered at the same term of court during which the judgment nisi was entered.

Art. 433, Vernon’s Ann.C.C.P., provides as follows:

“When a forfeiture has been declared upon a recognizance or bail bond, the court or clerk shall docket the case upon the scire facias or upon the civil docket, in the name of the State of Texas, as plaintiff, and the principal and his sureties, as defendants; and the proceedings had therein shall be governed by the same rules governing other civil suits.” See also Art. 866, Vernon’s Ann.C.C.P.

Rule 123, Texas Rules of Civil Procedure, reads:

“Where the judgment is reversed on appeal or writ of error for the want of service, or because of defective service of process, no new citation. shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed.”

After the trial court had declared the forfeiture of the bail bond, all the proceedings had therein pertaining to the appearance of the appellants in said court and its jurisdiction over them because of defective service of process was governed by Art. 433 and Rule 123, supra. By perfecting their appeal, the appellants invoked the jurisdiction of this Court, and thereby sought and obtained a reversal of the judgment against them, which constituted an appearance by them as litigants, and it was not necessary to issue and serve further process. This being a retrial of the case following a reversal on appeal, the appellants were before the trial court for all purposes. Therefore, it had jurisdiction to render the final judgment. Bonanza, Inc. v. Lee, Tex.Civ.App., 337 S.W.2d 437; Western Guaranty Loan Co. v. Dean, Tex.Civ.App., 309 S.W.2d 857.

The judgment is affirmed.

Appellants having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.

Opinion approved by the Court.


text:
    Rufus Martin EAGLE DEER et al., Appellants, v. STATE of Texas, Appellee.
    No. 33788.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    See also 341 S.W.2d 921.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from a final judgment entered against the appellants in a bond forfeiture proceeding.

The disposition hereof is controlled by the decision in Blue et al. v. State, No. 33,787, this day decided, 351 S.W.2d 221.

The judgment is affirmed.

Appellants having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.

Opinion approved by the Court.


text:
    Ontress Alfred PARR, Jr. et al., Appellants, v. STATE of Texas, Appellee.
    No. 33789.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    See also 341 S.W.2d 922.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from a final - judgment entered against the appellants in a bond forfeiture proceeding.

The disposition hereof is controlled by the decision in Blue et al. v. State, No. 33,787, this day decided, 351 S.W.2d 221.

The judgment is affirmed.

Appellants having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.

Opinion approved by the Court.


text:
    Willie Henry THOMAS et al., Appellants, v. STATE of Texas, Appellee.
    No. 33790.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    See also 341 S.W.2d 920.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from a final judgment entered against the appellants in a bond forfeiture proceeding.

The disposition hereof is controlled by the decision in Blue et al. v. State, No. 33,787, this day decided, 351 S.W.2d 221.

The judgment is affirmed.

Appellants having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.

Opinion approved by the Court.


text:
    Robert Charles PASSMORE et al. v. STATE of Texas, Appellee.
    No. 33784.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., and James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal by E. Colley Sullivan, as surety upon the appearance bond of Robert Charles Passmore, from a final judgment of County Criminal Court No. 2 of Dallas County, forfeiting said bond.

The bond, dated October 27, 1960, in the penal sum of $500, was conditioned that the principal appear instanter in County Criminal Court No. 2 of Dallas County, to answer a misdemeanor charge.

Judgment nisi was entered on February 22, 1961, and provided that “ *' * * said judgment shall-be made final unless good cause be shown at the next term of this Court why the defendant, Robert Charles Passmore, did not appear.”

Citation was issued by the Clerk of the court on February 27, 1961, and service had upon the appellant on February 28, 1961.

The citation commanded appellant “ * * * to be and appear before the County Criminal Court No. 2 of Dallas County, Texas, at the Courthouse of said County, by filing a written answer at or before 10:00 o’clock A.M., of the Monday next after the expiration of twenty (20) days after March 6th, 1961, the date of commencement of the next term of said Court, and show cause why the forfeiture of said bond should not be made final.”

On May 26, 1961, final judgment was rendered by default against the principal and appellant-surety for the full amount of the bond, they having failed to appear or answer in the cause.

On June 2, 1961, motion for new trial was filed by appellant in which he alleged as grounds therefor that the citation served upon him was insufficient because it did not comply with the provisions of Articles 427 and 428, Vernon’s Ann.C.C.P.

After a hearing, the motion was by the court overruled, to which action of the court appellant excepted and gave notice of appeal to this Court.

Appellant insists that the citation was legally insufficient to support the final judgment rendered against him because it did not command him to appear at the next term of court as required by Article 427, V.A.C.C.P., and for such reason the court erred in overruling his motion for new trial.

Appellant relies upon Blue v. State, Tex.Cr.App., 341 S.W.2d 917, wherein this Court held that citations issued in bond forfeiture cases should direct the sureties to appear at the next term of court, as provided by Article 427, supra, and that a citation issued, under Rule 101 of the Texas Rules of Civil Procedure, which did not command appearance at the next term of court was insufficient.

We hold that the citation served upon appellant, under its terms and provisions, was sufficient to direct and command appellant to appear at the next term of court as required by Article 427, supra. The citation by its terms designated the time and place of holding the next term of court, namely, at the courthouse in the City of Dallas on March 6, 1961. The fact that the citation commanded appellant to appear on a day within the term, other than the first day, would not vitiate the same. The additional time was favorable to appellant.

The judgment is affirmed.

Appellant having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.

Opinion approved by the Court.

WOODLEY, P. J., dissents.


text:
    J. W. SMITH et al., Appellants, v. STATE of Texas, Appellee.
    No. 33785.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., .Dallas, and Leon B. Douglas, State’s Atty., Austin, .for the State.
   DICE, Commissioner.

This is an appeal by E. Colley Sullivan, as surety upon the appearance bond of J. W. Smith in the penal sum of $500, from a final judgment of the County Criminal Court No. 2 of Dallas County, forfeiting said bond.

Appellant questions the sufficiency of the citation that was issued and served upon him in the cause. The citation by its terms is similar to the citation which this Court held sufficient to support a final judgment of forfeiture by default against the principal and surety in Passmore et al., Appellants v. State of Texas, Appellee, Tex.Cr.App., 351 S.W.2d 224.

The judgment is affirmed.

Appellant having superseded the judgment by supersedeas bond,' judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.

Opinion approved by the Court.

WOODLEY, P. J., dissents.