author: ANDERSON, Judge.

text:
    Joseph LaMANTIA, Plaintiff-Respondent, v. Marcella BOBMEYER, Defendant-Appellant, and Leona Ciluffo, Defendant-Respondent.
    No. 31556.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.

      R. E. Keaney, St. Louis, for defendant-respondent.
    Derrick & Holderle, Tyree C. Derrick, St. Louis, for defendant-appellant.
    Padberg & Raack, Godfrey P. Padberg, Glennon T. Moran, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an action by Joseph LaMantia against Marcella Bobmeyer and Leona Ciluffo. The object of the suit was to recover for loss of consortium, companionship and services of plaintiff’s wife, Lucille LaMantia, and for medical expense incurred on her behalf, as a result of injuries sustained by her in an automobile collision between the automobiles owned and operated by defendants. There was a verdict in plaintiff’s favor in the sum of $8,000 against defendant Bobmeyer, and in favor of defendant Ciluffo. From the judgment on this verdict defendant Bobmeyer has appealed.

The accident occurred on May 17, 1959. On that date Lucille LaMantia and Leona Ciluffo went to a family gathering. After the party was over, Mrs. Ciluffo was taking Mrs. LaMantia home when her automobile was involved in a collision with one driven by defendant Marcella Bobmeyer. Both automobiles were proceeding eastwardly on Gravois Road. The collision occurred just east of the intersection of Gravois Road and Itaska Streets at about 8:00 p. m. It had been raining but the rain had stopped before the collision occurred. Mrs. Ciluffo was driving her car in the lane next to the parking lane, and defendant Bobmeyer was following her in the same lane. In front of Mrs. Ciluffo, and in the same traffic lane was a car driven by a Mr. Gast. There was eastbound traffic in the traffic lane to Mrs. Ciluffo’s left. After crossing Itaska street, Mr. Gast stopped his car, and Mrs. Ciluffo put on her brakes and stopped about five car lengths east of the intersection of Gravois and Itaska. Mrs. LaMantia testified that there was nothing unusual about the stop that Mrs. Ciluffo made. Thereafter the Ciluffo car was struck in the rear by the automobile being driven by defendant Bob-meyer. The force of the collision drove the Ciluffo car forward and it collided with the one being driven by Mr. Gast. Mrs. La-Mantia was thrown backward and forward by the two impacts and was injured for which she received medical treatment.

Defendant Ciluffo testified that the streets were dry; that the traffic was heavy; that she was following the Gast car at a distancé of approximately one car length, at a speed of fifteen to twenty miles per hour. She further testified that the Gast car came to a normal, slow and gradual stop, and that she came to a gradual stop behind the Gast car. She stated' she was stopped one or two seconds when she was struck from behind by the Bobmeyer car.

Defendant Bobmeyer testified she was operating her automobile one car length behind the Ciluffo automobile; that all of the vehicles were going at approximately the same speed; that Mrs. Ciluffo gave no hand signal of her intention to stop, and that Mrs. Ciluffo made a sudden stop.

Defendant Bobmeyer further testified that the pavement was wet of which fact she was aware. She further testified that she thought she could have stopped her car before colliding with the Ciluffo car if the street had not been wet. She also stated that when she saw the car in front of her stop, she applied her brakes, cut her wheels to the left and moved partly into the next lane. She further stated that the right front fender of her car struck the left rear fender of Mrs. Ciluffo’s automobile.

■ As to defendant Bobmeyer the case was submitted to the jury on the so-called “rear end” doctrine, and against defendant Ciluffo on the charge of negligence that she brought her automobile to a sudden and abrupt stop and failed and omitted to give a timely and adequate warning to vehicles following her of her intention to stop. Three forms of verdict were submitted to the jury, to wit; (1) a verdict form permitting a finding in favor of plaintiff against defendant Bobmeyer and in favor of defendant Ciluffo, (2) a verdict form permitting a finding for plaintiff against defendant Ciluffo and in favor of defendant Bobmeyer and, (3) a verdict form permitting a finding against plaintiff and in favor of both defendants. There was no verdict form permitting a finding for plaintiff against both defendants. As heretofore stated the jury found for plaintiff for $8,000 against defendant Bobmeyer and in favor of defendant Ciluffo.

Appellant contends that the court erred in failing to submit to the jury a verdict form authorizing a verdict against both defendants. In support of this contention it is urged that since the petition charged concurrent negligence, and separate verdict directing instructions authorized recovery against each defendant for their concurrent negligence, the failure to submit a form of verdict authorizing a joint finding against both defendants was tantamount to a direction that the jury could not find against both, but could only find against one defendant; that in such a situation the jury, although it might believe that both parties were guilty of negligence which contributed to cause the accident, might have arrived at its verdict by comparing the negligence of each defendant to ascertain the one more culpable, this putting into effect the doctrine of comparative negligence which doctrine is not recognized in this state, and as a result appellant was deprived of her right of contribution from her codefendant.

It appears from the record that appellant’s counsel made no objection at the trial to the forms of verdict submitted, nor did he object to the failure of the court to submit the form of verdict which he now says should have been given. It also appears that there was no such objection by him to the reception of the verdict when it was returned into court by the jury. Under these circumstances appellant is in no position to complain of the matter in this court. Pleiman v. Belew, 360 Mo. 219, 227 S.W.2d 733; Kansas City v. Thomson, Mo., 208 S.W.2d 216; Baker v. Atkins, Mo.App., 2S8 S.W.2d 16.

Nor does the point call for review under Supreme Court rule 79.04, V.A.M.R., since it is not claimed that the court’s action in any way affected appellant’s liability to plaintiff, or place an undue burden on her not required by law. Plaintiff is not complaining of the court’s action, and should not be compelled to retry her case to afford appellant the opportunity to establish a right of contribution from defendant Ciluffo if a judgment against her should on retrial be obtained.

Appellant’s next point is that the court erred in giving and reading to the jury instructions numbered 1 and 2. These were verdict directing instructions given at plaintiff’s request. Instruction No. 1 submitted the case as to defendant Bobmeyer, and Instruction No. 2 submitted the case as to defendant Ciluffo. Both required a finding of negligent conduct on the part of the particular defendant, which negligence caused or contributed to cause the collision; also a finding of injury to plaintiff’s wife and damage to plaintiff. At the trial appellant voiced no objection to Instruction No. 2, either general or specific. Therefore the alleged error in said Instruction is not before this court.

The complaint against Instruction No. 1 is that it did not authorize a joint verdict against both defendants, which alleged infirmity was prejudicial in that it deprived appellant of her right to seek contribution from defendant Ciluffo. There is no merit to this contention. The fact of defendant Ciluffo’s negligence, if she was negligent, was no defense to plaintiff’s action against appellant. If appellant was negligent as hypothesized in the Instruction, and such negligence either caused or contributed to cause the collision, which resulted in injury to plaintiff’s wife, and damage to plaintiff, then appellant may be held liable, notwithstanding there may have been other concurrent causes, so long as the other concurrent causes were not under the control of plaintiff or the result of his own negligent conduct. Greer v. St. Louis Public Service Co., Mo.App., 87 S.W.2d 240. Here there was no issue of contributory negligence on the part of the plaintiff.

Appellant also complains of the court’s refusal to give and read to the jury Instruction B which was offered on behalf of defendant Bobmeyer. Said proposed instruction reads as follows:

“The Court instructs you that if you find for the plaintiff, Joseph LaMantia, under Instruction No. 1 and against defendant, Marcella Bobmeyer, and if you believe and find from the evidence that the defendant, Leona Ciluffo, was also negligent in some degree, if any, and said negligence, if any, entered into and forméd a part of the direct producing cause of the collision in question and damages to the plaintiff and without that negligence, if any, on the part of the defendant, Leona Ciluffo, the collision and damages would not have occurred,' then your verdict must be agaiiist th'e defendant, Leona Ciluffo, as well as against defendant, Marcella Bobmeyer.”

The instruction was properly refused. It required the jury to render a verdict against defendant Ciluffo if they found that said defendant was also negligent in some degree, without restricting their finding to the negligence charged in the petition and submitted in Instruction Number 2. Defendant Ciluffo was only required to meet the charge of negligence alleged in the petition, but under this instruction her burden would have been enlarged to meet any theory that the jury might conceive to be negligent conduct though not pleaded or submitted by plaintiff in his verdict directing instruction. Defendant Bobmeyer should not be permitted to do this by having the court give to the jury a roving commission to search the evidence and by the use of their imagination find what they conceive to be negligent conduct though not relied upon by plaintiff as a basis of recovery. Pulse v. Jones, Mo., 218 S.W.2d 553.

Furthermore proposed Instruction B could in no way affect the issue of appellant’s liability to plaintiff. It was not error to refuse this instruction.

It is next urged that the court erred in refusing to give and read to the jury Instruction A which purports to be a converse instruction. Said instruction is as follows:

“The Court instructs you that if you believe and find that at the time and place mentioned in evidence the defendant, Marcella Bobmeyer, was operating her automobile with the highest degree of care and was not negligent as charged against her in Instruction No. 1, then your verdict will be in favor of defendant, Marcella Bobmeyer, and against the plaintiff, Joseph LaMantia.”

Although the foregoing instruction does not hypothesize any facts it would not have been improper for the Court to have given' it. Terrell v. Missouri-Kansas-Texas R. R. Co., Mo., 327 S.W.2d 230. But was it error to refuse it? We think not, for the reason that the same charge was contained in Instruction No. 4, which was a burden of proof instruction. The last sentence of Instruction No. 4 states, “And in this connection, if you find that defendant, Marcella Bobmeyer, was not negligent in any respect charged against her in other instructions given you herewith, then the plaintiff,' Joseph LaMantia, has failed to bear the burden of proof against defendant, Marcella Bobmeyer, and your verdict will be against the plaintiff, Joseph LaMantia, and in favor of the defendant, Marcella Bobmeyer.”

Appellant’s next complaint is that the court erred in admitting in evidence certain records of Dr. E. H. Parsons with reference to an examination of plaintiff’s wife which he made at the request of Dr. Pran-ger, who. was Mrs. LaMantia’s treating physician. In support of this assignment it is urged that the records were not made in the regular course of business, and were not such as contemplated by the statute; that said records contained conclusions, opinions and hearsay evidence not within the purview of the statute, and were not made for the purpose of diagnosis and treatment but for the information of plaintiff’s counsel for use in connection with the lawsuits he was handling for plaintiff and his wife.

To lay a foundation for the introduction of this record plaintiff called as a witness Mildred White. She testified that she had been employed by Dr. Parsons as a secretary for a period of twelve years, and-had brought into court Dr. Parsons’ records with reference to his examination of Mrs. LaMantia which was made on March 3, 1960. She further testified that Dr. Parsons had since died and that the records had been kept under her care and custody since the doctor’s death. The records, according to her testimony were made at the time Dr. Parsons made the examination, and were afterwards kept in the regular course of business under her custody; that she was present during the examination, that plaintiff’s Exhibit 2 contained the notes of-the examination of Lucille LaMantia on March 3, 1960; that Dr. Parsons’ usual .practice was to make longhand notes of the. information the patient gave him at the time of the examination with his own findings, and then dictate these into a stenorette tape recorder. His secretary would then transcribe this recording, which transcribed recording was made a part of his record. Miss White testified she would read the transcribed report and listen to the tape recording to check the accuracy of the report. These reports were made the day of the examination of the patient or the next day. Miss White further testified that Dr. Pranger referred Mrs. La-Mantia to Dr. Parsons for an examination for the purpose of consultation. Dr. Parsons was a specialist in neurology and psychiatry. Mrs. LaMantia was thought to have a ruptured cervical disc with nerve involvement. Dr. Pranger testified he sent her to Dr. Parsons because he wanted the latter’s opinion on her condition. The examination was not made for the purpose of treatment but for Dr. Pranger’s benefit. There was no evidence in the record that the examination was made at the request of plaintiff’s counsel for use in the trial of this case, although a copy of the consultation notes, together with a copy of a letter which Dr. Parsons wrote to Dr. Pranger was sent to Glennori Moran, an attorney. Mr. Moran does not appear as attorney for plaintiff in this court, or at the trial of this case, but did represent Mrs. LaMantia at the trial of her case.

Dr. Parsons’ records were marked as plaintiff’s Exhibit 2 and offered in evidence. The Court did riot rule on the offer after appellant’s counsel made the following observation concerning the records.

“Mr. Derrick: I see nothing in this record that shows the notes that were taken of an examination of this patient that would be admissible under the Business Records as Evidence Rule. The only thing I see here, is a report made to someone of this examination of Mrs. LaMantia for the purpose of trial, not for the purpose of treatment and that would be inadmissible. This is the only thing here that I see that might have been made by the doctor.”

The whole of plaintiff’s Exhibit 2 was never received in evidence. Parts thereof, plaintiff’s Exhibit 2D and 2C, were offered and read into evidence. Exhibit 2D was the record of the physical finding made by Dr. Parsons during the examination of Mrs. LaMantia. Clearly Exhibit 2D was properly received in evidence. A physician’s office records with reference to his business as a physician are admissible under the Uniform Business Records as Evidence Law. §§ 490.660, 490.690, R.S.Mo. 1959, V.A.M.S., Fisher v. Gunn, Mo., 270 S.W.2d 869, 877.

Section 490.670 provides that “[t]he term ‘business’ shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not.” Making examinations for the purpose of consultation with other physicians is a part of a medical doctor’s business. Section 490.680 provides that “[a] record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian of other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the ■opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The findings made by Dr. Parsons from observation and examination of Mrs. La-Mantia come under the classification of acts, conditions or events. They were made in the pursuit of his calling and recorded by him at or near the time when made. The testimony of Miss White shows that the manner ■of their recording and preservation was sufficient to satisfy the requirement of the law so as to render them admissible in evidence. Fisher v. Gunn, supra; Rossomanno v. Laclede Cab Co., Mo., 328 S.W.2d 677; State v. Payne, Mo., 342 S.W.2d 950. The objection that the records were made solely for the information and use by counsel for Mrs. LaMantia is not supported by the evidence. The objection that the Exhibit was inadmissible for about every reason to be found in the law books is a bit too general to preserve any point for review. The Court should not be required to search through all the law books for a reason to exclude this evidence. The contention that Exhibit 2D was inadmissible because it contained conclusion, opinions and hearsay evidence is without merit. Suffice it to say that we have carefully examined plaintiff’s Exhibit 2D and find it not subject to this complaint. Furthermore no such objection to the introduction of Exhibit 2D was made at the trial. The objection that said exhibit contained hearsay evidence is of course without merit. The statute makes the evidence admissible notwithstanding the fact that it contains hearsay. Allen v. St. Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022.

Error is assigned in the admission, Over appellant’s objection of plaintiff’s Exhibit 2C. Only part of the exhibit was read to the jury. The part read is as follows :

“In the final paragraph of my Consultation Notes entitled Comment, you will find, I think, the gist of my thinking in her case. I certainly agree with the program of therapy on which you have had her. I would raise the question of whether she might merit cervical mye-lography at this time. This I think can be answered better by you, who have had the patient under observation, care and treatment, than by anyone else. I am in the spot that I am unable to say that she cannot have a herniated nucleus polposis, although I also will agree that her progress had been satisfactory on a conservative program of therapy. I have a hunch she will have further difficulty from time to time and feel she merits watching as you are doing now.”

Miss White testified that plaintiff’s Exhibit 2C was a copy of the letter sent to Dr. Pranger, with a carbon copy to Mr. Moran; that the letter was dictated by Dr. Parsons at the time the consultation notes (records) were dictated; that the original letter was sent to Dr. Pranger as the referring doctor, in the normal course of Dr. Parsons’ business; that the exhibit was made a part of Dr. Parsons’ file, and had been kept in the normal course of business under her supervision.

The appellant objected to the introduction of this exhibit into evidence on the same grounds that plaintiff interposed to the admission Exhibit 2D. There was a further objection that it was not admissible because it contained conclusions and conjectures on the part of Dr. Parsons.

The proper qualification of a record does not, ipso facto, make all parts of the record automatically admissible. Objectionable parts may be excluded on proper objections. Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663. As to hospital records, any record of a diagnosis contained therein is admissible under the Uniform Business as Records Law. Allen v. St. Louis Public Service Co., supra. Such diagnosis is nothing more than a medical opinr ion based upon observation and the facts developed during an examination of the patient. The same rule should apply in the case of an examination of a person by a doctor for the purpose of consultation with another physician. But a notation in the record based upon speculation and conjecture should not be accepted as a proper diagnosis. In the case at bar, Dr. Parsons, in his report to Dr. Pranger did not give a medical opinion based upon a reasonable medical certainty, but upon a “hunch”. Dr. Parsons would not have been entitled to testify that he had a “hunch” that Mrs. La-Mantia would have further difficulty from time to time. Therefore, assuming without deciding that Exhibit 2C was a part of Dr. Parsons’ records kept and identified in accordance with Section 490.680, supra, the part.'thereof, ■ based’upon speculation and conjecture was not admissible, and should have been excluded. > ■ ■ ¡.-

However, it is our opinion that its admission in evidence does not warrant a reversal of the case, for the reason that in our judgment its admission could not have materially affected the result of the trial.

Dr. Pranger testified that Mrs. LaMantia suffered a herniated disc, with pain and disability resulting therefrom, and that the condition was permanent. Dr. Parsons’ report did not support this conclusion. In fact he was unable to say whether or not she did suffer from a herniated disc, and did not give an opinion based upon a reasonable degree of medical certainty that she would have further difficulty from time to time. It would therefore seem that his report contained evidence that defendant’s counsel might use to his benefit in arguing the case to the jury. In our judgment the evidence could not have enhanced the verdict or influenced the result of the trial.

We find no reversible error in the record. The judgment is therefore affirmed.

RUDDY, P. J., and WOLFE, J., concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Anna FARRELL, Plaintiff-Appellant, v. Lawrence DeCLUE and Texflame Gas Corporation, Defendants-Respondents.
    No. 31757.
    St. Louis Court of Appeals. Missouri.
    Sept. 28, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 26, 1964.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for plaintiff-appellant.
    Smith & Colson, David L. Colson, Far-mington, for defendants-respondents.
   BRADY, Commissioner.

This appeal arises after the second trial of this cause. The determinative issue is whether the plaintiff can appeal alleging the trial court prejudicially erred when it set aside the original judgment which had been rendered upon defendants’ default.

The facts are not in dispute. Plaintiff filed her petition praying for damages in the amount of $10,000.00. Personal service was had on each of the defendants. When the defendants were fourteen days in default, the trial court heard the plaintiff’s case, a jury having been waived. Evidence was heard and the court awarded judgment that same day, January 10, 1962, for plaintiff in the sum of $9,000.00. On January 24 of that year, fourteen days after the rendition of this judgment, the defendants filed a motion “ * * * to set Aside the Verdict and Judgment Entered Thereon and to Grant Each Defendant a New Trial.” This motion was not verified; neither was it accompanied by affidavit nor was testimony offered in support of the motion. The grounds for this motion are set out in Farrell v. DeClue, Mo.App., 365 S.W.2d 68, 1. c. 70. On March 10, 59 days after rendition of the judgment, the trial court entered its order granting the .defendants a new trial but giving no reasons therefor. The plaintiff filed her notice of appeal two days later and served respondents with a notice calling upon them to file the original brief in that appeal. On March 15, 1962, the trial court entered its order “nunc pro tunc” in which it stated that the order granting defendants á new trial should be “amended arid corrected” to give reasons for that action. On March 20 the defendants filed joint answers to the plaintiff’s petition. Two days after this action the plaintiff filed a motion to set aside the court’s “nunc pro tunc” order and when this was overruled, the plaintiff appealed. By opinion dated February 19, 1963, Farrell v. DeClue, supra, this court held that the so-called “nunc pro tunc” order was a nullity and that plaintiff’s appeal from the order of March 10, 1962, setting aside the default judgment was premature.

Trial was had on September 17, 1963. Before this trial began and at every stage in the proceedings the plaintiff carefully preserved her objections to the trial. This she did by filing a motion to strike defendants’ answers prior to setting the case and when this was overruled, by announcing ready subject to the matters stated in that motion; by moving at the close of her evidence that the court enter a directed verdict in accordance with the judgment of January 10, 1962, or for an alternative order preventing the defendants from introducing evidence; and at the close of defendants’ case by again moving for a judgment in accordance with that entered January 10 and later set aside. All of these motions were denied. The jury returned a verdict for the plaintiff and against both defendants in the sum of $2,500.00 and judgment was entered in that amount. The plaintiff then filed her timely motion requesting the court to set aside the verdict and judgment for $2,500.00 and to issue execution on the $9,000.00 judgment. This motion was denied and the plaintiff perfected her appeal.

In its pertinent parts, § 512.020 RSMo 1959, V.A.M.S., provides that any party to a civil action who is “aggrieved” by any judgment entered therein may appeal from certain specified orders of the trial court including “ * * * any special order after final judgment in the cause.”

The defendant advances several arguments to support the contention that the plaintiff is not “aggrieved” within the meaning of § 512.020, supra. He points to the fact that there was no “unreasonable” delay in getting to trial before a jury; that the plaintiff does not raise any contention of prejudicial error in respect to that trial; and that plaintiff could have gotten a judgment larger than $9,000.00 before the jury. In essence, however, the defendants’ argument is based upon the remarks of Faris, J. in the Bussiere case, Bussiere’s Adm’r. v. Sayman, 257 Mo. 303, 165 S.W. 796, 1. c. 800. There it was stated that it was unnecessary for the plaintiff in that case to “rush” to appeal from an order setting aside a default judgment because he had two remedies. The first was to stand mute when the case was called and appeal the resultant dismissal. The second was to preserve his point and appeal “ * * * if he lost the whole case.” The defendant’s basic position is that when the plaintiff elected not to stand mute and appeal a resultant dismissal she agreed to abide by the decision of that trial and could only be considered aggrieved if she lost the whole case.

The plaintiff points out that she has lost $6,500.00 of a judgment which was validly rendered and final in the sense that, as this court held in Farrell v. DeClue, supra, the motion to set aside the default judgment was not a motion for new trial; that she was thereupon entitled to execution except for the trial court’s prejudicially erroneous action in setting the judgment aside; that she is still without compensation for her injuries some two years and eight months later (at the date of this opinion) ; and that the second trial cost her additional expense. The essence of her argument is that the only logical difference between being “aggrieved” by the loss of the entire judgment and the loss of $6,500.00 of it is one of degree. The plaintiff argues that she may have been more aggrieved if she had lost it all, but she is still aggrieved when she loses $6,500.00 of her judgment.

Some questions of law seem to have an almost homing pigeon instinct. Thus, it is that this court has been repeatedly involved in the development of the law in this jurisdiction on the question of whether an appeal will lie from an order setting aside a judgment rendered upon default. The case law upon this question began with Cross-land v. Admire, 118 Mo. 87, 24 S.W. 154, decided by our Supreme Court in 1893. In that case the Supreme Court of this state dismissed an appeal from an order setting aside a default judgment on the ground that such an order was not an order granting a new trial. It based that conclusion upon its finding that a “trial” is had for the determination of the issues found by the pleadings. At 1. c. 91, 24 S.W. at 1. c. 154, in the official report the court stated: “Issues are made under the Code, as well as at common law, by the pleadings. In case of default in pleading, there can be no issues to be tried, and no ‘trial’ can be had within the meaning of the term as given in the books, and as understood by the profession.” It followed, the court held, that where there had been no trial there could be no new trial and therefore an order setting aside a judgment rendered upon default was not an order granting a new trial and no appeal would lie.

The view of this court that an appeal should lie under such circumstances was first expressed in Bussiere v. Sayman, 171 Mo.App. 11, 153 S.W. 507. In an obvious effort to give the Supreme Court grounds upon which it could distinguish Crossland and thus avoid what this court felt was an inequitable result, the opinion of this court in Bussiere pointed out that when ruling Crossland the Supreme Court did not consider or even mention that provision of our statute dealing with appeals from any special order after final judgment. However, the opinion of this court did recognize that this provision of our statute was in force when Crossland was decided and while it was not discussed, must be taken as having been considered by the court when deciding Crossland. The case was ordered certified to the Supreme Court on the ground that if Crossland was to rule the issue then our opinion would be in conflict with that rendered by the Kansas City Court of Appeals in Miller v. Crawford, 140 Mo.App. 711, 126 S.W. 984. In the resultant opinion, Bussiere’s Adm’r. v. Sayman, 257 Mo. 303, 165 S.W. 796, the Miller case was specifically overruled, the Crossland case affirmed, and that provision of our statute dealing with appeals from any special order entered after judgment was held not to permit an appeal from an order setting aside a judgment entered upon default.

We pass next to an opinion in the instant case when it first reached our court. (See Farrell v. DeClue, supra, and specifically the cases cited in footnotes 1 and 2 at page 74 of 365 S.W.2d for a reference to those cases bearing upon this issue and handed down after the Supreme Court’s opinion in Bussiere.) The first time the instant case reached us the plaintiff urged that the so-called nunc pro tunc order of March 15, 1962 “amending and correcting” the order of January 10, so as to include the court’s reasons for granting the defendant’s motion to set aside was a nullity. We so held. The plaintiff also contended that the defendant’s motion to set aside the judgment did not prove itself and in the admitted absence of any proof to support the motion the trial court abused its discretion in setting aside the judgment rendered upon default. We also approved this contention citing Gorzel v. Orlamander, Mo., 352 S.W. 2d 675, and O’Connell v. Dockery, Mo.App., 102 S.W.2d 748. However, bound by the Supreme Court’s decision in Bussiere, we held plaintiff’s appeal premature recognizing as we did so that should the judgment finally rendered be less than $9,000.00 we would then be faced with the necessity of deciding whether the plaintiff was aggrieved within the meaning of § 512.020, supra, and could appeal. The situation we thus anticipated has now come into being. It should here be noted that in Farrell v. DeClue, supra, we held the trial court committed reversible error by abusing its discretion in setting aside the default judgment without any proof to support that action. The defendant does not deny the trial court’s ac.tion constituted reversible error but contends that since the matter cannot be appealed, the plaintiff must resign herself to the illogical position of being unable to seek redress from an admittedly prejudicial error.

So far as the Bussiere case is concerned, we are convinced the words of Faris, J. upon which the defendants rely do not compel a decision in their favor under the facts of the instant case. We believe a careful reading of the opinion in that case will lead to the inescapable conclusion that the words “ * * * if he lost the whole case * * ” were inadvertently substituted for the words “if he was aggrieved” and should be read with that interpretation. To hold otherwise would cast serious doubts upon the validity ■of any judgment rendered upon default. All that would be required to set aside such .a judgment is the error of the trial court as was here committed. Once that error is committed even where the second trial results in a verdict less in amount than that ■first awarded, the party against whom the error is committed is denied redress. If we were to adopt the defendants’ position, then the degree by which the verdicts varied would be unimportant for under that interpretation even if the plaintiff in this •case had been awarded one dollar in the second trial, she would not be considered as “aggrieved.” This hypothesization is •extreme but graphically illustrates the weakness of defendants’ argument.

There is another reason why the plaintiff should be considered to be an “aggrieved” party within the meaning of § 512.020, supra. The appellate courts of this state have repeatedly held that a plaintiff who recovers a judgment for only a small fraction of the amount sued for is an aggrieved party within the meaning of § 512.020, supra, and may appeal. See Boland v. Dehn, Mo.App., 348 S.W.2d 603, and cases cited at 1. c. [2, 3], p. 604. If the difference between the judgment given and the’ amount sued for renders one “aggrieved”, why should the difference between these two judgments not do the same ?

Webster’s Third New- ■ International Dictionary defines the word “aggrieved” as “suffering from an infringement or denial of legal rights.” It is in that sense the word was used by the legislature in § 512.020, supra. Certainly an action which has been repeatedly held to constitute reversible error is one which infringes or denies the legal rights of the party against whom the action was taken. Otherwise the plaintiff could never seek redress for the conceded infringement or denial of her legal rights which took place when the trial court abused its discretion by setting aside the default judgment without any proof to support the motion. Farrell v. DeClue, supra; Gorzel v. Orlamander, supra; O’Connell v. Dickery, supra. This fact should be considered along with the pecuniary loss suffered by the plaintiff both in the diminution of the amount of the judgment as well as the loss- of use of the money for the period of time it has taken to correct the trial court’s action. We think it clear the plaintiff was “aggrieved” as that word is used in § 512.020, supra, and entitled to bring this appeal. The judgment should be reversed for the reason that the trial court prejudicially erred by abusing its discretion in sustaining the defendants’ motion to set aside the default judgment rendered January 10, 1962, thereby rendering the plaintiff “aggrieved” within the meaning of § 512.020, supra. This cause should be remanded to the trial court with instructions to set aside the judgment of $2,500.00 in plaintiff’s favor and to reinstate the judgment of January 10, 1962. The Commissioner so recommends.

PER CURIAM.

.The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and cause remanded to the trial court with instructions.

RUDDY, P. J., WOLFE, J./and JAMES D. CLEMENS, Special Judge, concur.

ANDERSON, J., not participating.


author: JAMES D. CLEMENS, Special Judge.

text:
    Ted BROWN, Plaintiff, v. PARK TRANSPORTATION COMPANY, a Corporation, Defendant-Appellant, Casualty Reciprocal Exchange, a Corporation, Defendant, William Kersting, d/b/a William Kersting Trucking Company, Wayne E. Erwin, and Continental Casualty Company, a Corporation, Defendants-Respondents.
    No. 31706.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 26, 1964.
    Heneghan, Roberts & Cole, John J. Cole,. St. Louis, for defendant-appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, Paul S. Brown, St. Louis, for def endants-respondents-. ■
   JAMES D. CLEMENS, Special Judge.

This appeal concerns a cross-action between the lessor and the lessee of a truck to determine which of them is liable for the plaintiff’s damages. The plaintiff was injured while the truck was being unloaded. His claim was settled for $10,000. The lessor and the lessee each paid half that amount, and each incurred $1,000 in legal expenses. By their cross-claims each then sought to recover its $6,000 from the other. The trial court found in favor of the lessor and against the lessee, and the lessee appeals.

The Laclede Steel Co. had sold an order of steel reinforcing rods for delivery to the Wilcox Construction Co. at a highway construction site near Blythedale in Harrison County. Laclede hired appellant Park Transportation Company, a contract carrier, to deliver the steel rods. Instead of using one of its own trucks and drivers, Park hired the respondent Kersting, a common carrier, and his driver, Erwin, to make the delivery. A written truck lease was prepared by Park and signed by driver Erwin for Kersting. Park’s permit numbers and corporate name were affixed to the truck. Erwin drove to Laclede’s plant and the steel rods were loaded. He then drove to the construction site near Blythedale, where he met plaintiff, one of the contractor’s partners. Part of the rods were unloaded by hand, and the truck went on a few hundred feet to unload more. Here, the plaintiff was injured. A bundle of rods was too heavy to be unloaded by hand, so a bull-dozer was brought up to assist. A chain was connected to the bundle and the bull-dozer so it could pull the bundle off the truck. Plaintiff Brown was standing on the truck. He and Erwin decided that the truck should pull farther ahead to take the slack out of the - chains before the bull-dozer began pulling the bundles off the truck. As the truck moved forward, Brown was injured.

The crux of the case is whether at the time of plaintiff’s injury, when the truck was being unloaded, the truck was still under lease to appellant Park or had by then reverted to its owner, respondent Kersting. We look now to the written instrument whereby Kersting leased his truck to Park. Omitting non-essentials, and emphasizing pertinent parts, here is the lease:

“NOW, THEREFORE: in consideration of the sum of $1.00 and for other good and valuable consideration, IT IS HEREBY AGREED that for a period of time, effective 6 P.M. (CST) the 30th day of July, 1958, and concluding with the discharge of the consignment at the DESTINATION specified herein, this LESSOR shall lease the above described motor equipment to this LESSEE for use in transporting products as this LESSEE will specify for a single, ONE WAY, trip originating at the premises of this LESSEE at 1717 Park Ave., St. Louis 4, Missouri; then loading at the time and under the circumstances as instructed by this LESSEE at: Laclede Steel Co., Madison, Ill., and then proceeding only, and directly, to the following DESTINATION (S): Mo. State Hwy. Blyth-dale, Mo., and to the premises of the consignee(s) as specified in the bill(s) of lading where this LESSOR will attend to the proper unloading of the cargo, obtain essential clear receipts therefor and dispatch such receipts, along with the #3 equipment receipt and LESSEE’S identification property, to this LESSEE by the most expedient lawful method this LESSOR may employ. IT IS MUTUALLY UNDERSTOOD AND AGREED THAT:— (1) This trip lease completely terminates at the destination specified herein and that any movement made by this LESSOR after completing said delivery is the sole responsibility of this LESSOR; and * * (Emphasis ours.)

Another written instrument and another part of the lease may shed light on the issue here: the bill of lading and Erwin’s signed relinquishment of the truck lease. At LacledeC plant driver Erwin was given Laclede’s bill of lading consigning the steel rods to the “Missouri State Hwy. Dept. % Wilcox Construction Co.” The bill of lading covered two lots of steel rods, one for a bridge over Stone Quarry Creek, and one for a bridge over Indiana Creek, and this notation: “DELIVERY INSTRUCTIONS: DRIVER IS TO MEET CONTRACTOR AT BLYTHEDALE, MO. PROJECT BEGINS 4 MILES NORTH OF BLYTHEDALE ON ST. AND RUNS EAST OF RT. SO STATION 0 PLUS 00 IS AT RT. ST.” After all rods were unloaded, the construction company’s agent signed the bill where it read “Received in good condition except as reported on the back of this form.” On the back is printed “IMPORTANT NOTICE TO CONSIGNEE Check carefully the items unloaded from the truck at destination against the list of material shipped * * There are no notations on this side. The other writing is a release form on the bottom of the truck lease. It acknowledges “accomplishment” of the truck lease at 11 A.M. Although so written, it was not actually signed by Erwin until after the unloading was completed several hours later.

Appellant Park concedes, and we agree, that the lease is not ambiguous. So, in construing the lease, we will adhere to these fundamental principles: The parties’ intention is to be determined from what they said in the lease itself, and there is no reason to resort to extrinsic matters. Kalen v. Steele, Mo.App., 341 S.W.2d 343 (1, 3); Needles v. Kansas City, Mo., 371 S.W.2d 300(2). The intention of the parties is to be ascertained from the instrument as a whole, and not from isolated parts. 17A C.J.S. Contracts § 297; Cook v. Tide Water Associated Oil Co., Mo.App., 281 S.W.2d 415(8); and Rickey v. New York Life Ins. Co., 229 Mo.App. 1226, 71 S.W.2d 88(5). We will determine the parties’ intention from the language used, giving that language its usual meaning. Liberty Storage Co. v. Kansas City Terminal Warehouse Co., Mo.App., 340 S.W.2d 189(4, 5); Robichaux v. Group Hospital Service, Inc. of Kansas City, Mo.App., 379 S.W.2d 874 (1). We note that the lease refers to the terms of the bill of lading as to the “destination(s)” named therein. The bill of lading calls for delivery to the two bridge sites. So, we will consider this as a part of the lease. Hamilton Fire Ins. Co. v. Cervantes, Mo.App., 278 S.W.2d 20(2); 17 A C.J.S. Contracts § 298.

Park contends that by its terms the lease covered only transportation of the products, and terminated the moment the truck arrived at the construction site. This contention is based on the clause that the time of the lease has its beginning at a stated hour and “concluding with the discharge of the consignment at the destination speci.fied.” This interpretation could hold true only if we can say that the discharge of the consignment occurred before the cargo was unloaded. We believe that a carrier has not discharged its consignment until it either unloads the consignee’s goods or gives the consignee an opportunity to do so himself. That is the very purpose of transportation. See 13 C.J.S. Carriers § 67 and note 67. Further, the lease required that Kersting “ * * * attend to the proper unloading of the cargo * * It also said that Kersting would be responsible for any movement “ * * * after completing said delivery * * Kersting was not relieved of his obligation under the lease the moment he arrived with the loaded truck at the construction site. Until the cargo was taken off his truck at both' the two unloading points he had not “discharged the consignment.” We hold that the reasonable meaning of the truck lease is that it was terminated only when the truck had been unloaded at its destination. Hence, plaintiff was injured at a time when Kersting’s truck was under lease to Park. Appellant Park contends against this construction of the lease on further grounds: Park points to the fact that Erwin signed the release form stating that the terms of the lease had been accomplished at 11 A.M. at Blythedale. This was not signed until after the cargo had been unloaded several hours later. At most, this would he a conclusion of law by Kersting’s driver as to when the terms of the lease had been accomplished. Park also argues that its own liability insurance excluded coverage for accidents occurring during unloading. These and other arguments advanced are founded on extrinsic matters. We will not consider them in construing the lease in view of Park’s admission and our finding that the lease is not ambiguous.

Park further says that even if the truck lease was in effect when plaintiff was injured and that Park was thereby liable to the plaintiff, still Park’s liability was only passive and derivative. So, Park contends, Park would be entitled to be indemnified by Kersting. Park cites State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481 (3); Kansas City Southern Ry. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1(1); and 42 C.J.S. Indemnity § 21, where the rule is tersely stated: “* * an independent contractor guilty of wrongdoing is liable, not only to the person injured, but to any other person who is legally liable therefor * * To avoid the application of this principle to him, Kersting relies on a provision of the truck lease whereby Park was obligated to procure liability insurance to protect Kersting from all liability arising out of the operation of the leased truck. That clause read:

"This LESSOR [Kersting] will provide, at his expense, for the full maintenance and operation of said equipment, including all insurance costs which he may require for his protection with the exception of cargo, personal injury to others and damage to the property of others which is assumed by this LESSEE [Park] for the period only while this lease is in effect * (Our emphasis.)

The trial court held that by this Park was obligated to protest Kersting against any claims arising out of operation of the truck while the lease was in effect, and by failing to do so Park is now precluded from seeking indemnity from Kersting.

We have already acknowledged the rule that a principal may have indemnity from his agent for losses sustained by the principal because of the agent’s negligence. But. “ * * * in a private contract, where the parties stand on a substantially equal footing, one may legally agree to indemnify the other against the results of the indem-nitee’s own negligence.” Kansas City Power & Light Co. v. Federal Construction Corp., Mo., 351 S.W.2d 741(1); 42 C.J.S. Indemnity § 7. So, indemnity may not be had for a loss where the principal (Park) has agreed to protect the agent (Kersting) by procuring insurance against such loss.. This problem arose in the case of Monsanto Chemical Co. v. American Bitumuls. Co., Mo, 249 S.W.2d 428. There, Monsanto delivered its chemicals to the Cal-Spray company for processing, and agreed, “to carry adequate insurance to cover all' stocks of materials held by Cal-Spray for Monsanto’s account.” The chemicals were destroyed by fire through Cal-Spray’s negligence, and Monsanto sued Cal-Spray to recover its loss. Recovery was denied, our Supreme Court saying (1. c. 431-432) •

" * * * The stipulation whereby Monsanto was to carry adequate insurance must have been for the benefit of both of the parties to the agreement; otherwise, there would have been no' occasion for the stipulation. (Citing-cases.) It is true the stipulation did. not provide that Cal-Spray should not be held responsible for its negligence in causing a fire, but the stipulation-provided that Monsanto was to provide insurance against hazards, manifestly including fire, the proximate or immediate cause of the loss of Monsanto's-property. To the extent of Monsanto’s, stipulated obligation to insure against loss by fire, the insurance stipulated had" the effect of satisfying Monsanto’s-claim against Cal-Spray for its negligence. Newport News Shipbuilding & Dry Dock Co. v. United States, supra [4 Cir., 34 F.2d 100].”

We follow this, and hold that by its agreement to furnish liability insurance to protect Kersting, and its failure to do so, Park is precluded from seeking indemnity from Kersting. Park has cited numerous cases limiting the Monsanto case, hut we find none of them detracts from the point we have ruled here.

Park advances other arguments which would be forceful if it had prevailed in its initial contention that plaintiff was injured after termination of the truck lease. We have ruled that initial point against Park, and no further attention need be given Park’s dependent contentions.

We conclude that Park is liable for the plaintiff’s injuries because they were inflicted while Kersting’s truck was under lease to Park, and that Park may not have indemnity against Kersting because Park agreed to protect Kersting by providing liability insurance against such loss, but failed 'to do so. The judgment below was for the right party and should be affirmed. It is so ordered.

RUDDY, P. J., and WOLFE, J., concur.

ANDERSON, J., ' not participating.


author: CULVER, Justice. NORVELL, Justice

text:
    Cardell HOLMES and Savannah Holmes, Petitioners, v. J. C. PENNEY COMPANY, Inc., Respondent.
    No. A-10185.
    Supreme Court of Texas.
    July 29, 1964.
    Rehearing Denied Oct. 21, 1964.
    Leachman, Gardere, Akin, Porter & De-Hay, Ralph Hartman and Edward E. Crowell, Jr., with above firm, Dallas, for petitioners.

      Thompson, Knight, Wright & Simmons, Pinkney Grissom, Jerry P. Jones and John A. Gilliam, with above firm, Dallas, for respondent.
   CULVER, Justice.

Mrs. Savannah Holmes alleged that in descending a stairway in the J. C. Penney Company’s store at McKinney, Texas, by reason of the company’s negligence she was caused to fall, thereby sustaining injuries, and brings this suit for damages.

The trial court on a jury verdict rendered judgment in her favor. The Court of Civil Appeals has reversed and remanded. 378 S.W.2d 105. We now reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

As to the matter of negligence on the part of the company, the court submitted three groups of issues all of which were answered in Mrs. Holmes’ favor, namely, (1) did the defendant fail to provide a safe place for the plaintiff to walk; (2) did defendant maintain the step with a loose metal strip thereon; (3) did the defendant fail to exercise ordinary care in installing and maintaining the metal strip on the edge of the step. Corollary issues of negligence and proximate cause were, of course, included in each group.

The Court of Civil Appeals, in reversing this case, held that the first and third issues were too general and multifarious in that plaintiff had pleaded and offered proof only that the metal strip was loose and caught the heel of plaintiff’s shoe which caused Her fall. As to that holding we agree. When the plaintiff pleads and relies upon specific acts of negligence, it is not necessary or proper to submit issues as to negligence in general terms. The Court of Civil Appeals goes further and holds that •since these issues are duplicitous and submit the same fact issue in different form and shade, they place an undue emphasis on plaintiff’s right of recovery, which is so prejudicial to the defendant as to constitute reversible error.

While the question is somewhat nebulous and uncertain and one in respect to which courts may well differ, we are inclined to disagree with the Court of Civil Appeals and to hold that the error in this case is not so harmful as to require a reversal and a new trial. Under our rules appellate courts are not permitted to reverse a judgment and order a new trial unless they be of the opinion that the error of the trial court amounted to such a denial of the rights of the appellant as was reasonably calculated to and probably did cause the rendition of an improper judgment. Rules of Civil Procedure, rules 434, 503. Actually, the issues did not submit various phases or different shades of the same issue but rather embraced the fact inquired about in Issue 2 in both Issues 1 and 3. The evidence before the jury, as given by the plaintiff, was that the heel of her shoe was caught on the strip, and her shoe was pulled off of her foot. The Court of Civil Appeals holds that the findings of the jury are not against the great weight and preponderance of the evidence. We do not stand convinced that, but for the submission of Issues 1 and 3 as framed, the jury would have answered Issue No. 2 in the negative.

The cases cited and relied on by the Court of Civil Appeals do hold that the submission of duplicitous issues raising the same fact question, whether identical in language or merely in similar form, is erroneous. Covington v. Howard, Tex. Civ.App., 347 S.W.2d 802, err. ref. n. r. e.; Lone Star Gas Co. v. Ballard, Tex.Civ.App., 138 S.W.2d 633, 636, err. ref.; Dallas Ry. & Terminal Co. v. Bishop, Tex.Civ.App., 153 S.W.2d 298, 304, no wr. hist.; Ellis v. Lewis, Tex.Civ.App., 142 S.W.2d 294, no wr. hist; Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280. But in none of these cases is that error alone held to be so harmful as to require reversal.

We do, however, take occasion to reiterate that in submitting a case upon special issues, the court should submit only the controlling issues made by the pleadings and the evidence and is not required to submit various phases or shades of . the same issue. Rule 279. Repeatedly the attention of the bench and bar has been called to this correct mode of submission. In Texas & Pacific Railway Company v. Snider, supra, we observed that the issue of the failure on the part of the plaintiff, to keep a proper lookout was submitted in five different forms. The point was not raised on appeal, but we referred to that in the hope that trial judges would simplify special issue submission as much as possible. Professor Hodges in his “Special Issue Submission in Texas,” Section S3, p. 133, asserts that:

“The most serious defect in the mode of submission to the jury by special issues in Texas, and the feature which is most often criticized, is the use of too many issues in submitting a particular case. While the fault of breaking up the elements of a ground of recovery or defense into too many component elements is one of the sources of the trouble, a related and more potent cause is the practice of submitting what is substantially a single theory in several different ways, the issues of each worded in slightly different language.”

The late Chief Justice James P. Alexander in a lecture before the Judicial Section, took occasion to comment as follows :

“ * * * A practice has grown up, particularly in tort cases, under which the plaintiff charges the defendant with negligence on every theory capable of being drawn from the evidence, with the view of making the defendant’s conduct look as ugly as possible, and with the hope of securing a favorable finding from the jury on at least one of such charges; and the defendant, for the same purpose, and with the added hope of securing a conflict in the-findings of the jury, replies in kind, but with more of it. When it comes-time to submit the case to the jury,, each party insists that he is entitled to-have each of such theories separately-submitted. The result is that an unnecessary multitude of issues is submitted to the jury. * * * ”

The responsibility for avoiding multiple-' submission of a single theory rests mainly upon the trial. judges. In a certain case the trial court submitted three sets of issues: (1) did the defendant furnish plaintiff a safe place to work; (2) did the defendant permit grease to fall on the track;- and (3) did the defendant fail to keep the track free of grease. It was held that this-multiple submission of a single theory was-prejudicial to the defendant and should have been submitted in a single group of issues. While in some instances such an. error has been held harmless, this is not to say that in some cases it may very well appear to be otherwise, and either party will assume the risk of having his trial court judgment overturned.

By cross-point J. C. Penney Company insists that the Court of Civil Appeals-erred in holding that the trial court -correctly overruled its motion for judgment non obstante veredicto because the evidence established as a matter of law that the negligence of Mrs. Holmes in failing to heed the warning sign was the proximate cause of her fall and injuries. Prominently displayed to a person ascending the stairway was a sign reading: “SAFETY FIRST — PLEASE USE HANDRAIL”. The jury found that the failure of Mrs. Holmes to heed the warning sign and to use the handrail were acts of negligence but neither was a proximate cause. We agree with the Court of Civil Appeals that the negligence found by the jury does not constitute proximate cause as a matter of law. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063. The cross-point is accordingly overruled.

For the foregoing reasons the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN, NORVELL and STEAK- ' LEY, JJ., dissenting.

NORVELL, Justice

(dissenting).

I agree with the Court that this cause was not properly submitted to the jury, but I do not agree that this improper submission was harmless. The broad general submission concerning a safe place to walk seems particularly prejudicial. Mere proof of an accident (using the term in its popular sense) is not proof of negligence. As Mrs. Holmes did not intentionally fall down, the fact that she did could well indicate that she must have been walking in an unsafe place, or could be so considered by a jury. The tendency of this form of broad submission is to effectively weaken the defendant’s theory of “no negligence” on its part through use of an improper submission and pitch the battle (if any be remaining) upon the affirmative defense of contributory negligence. I also apprehend that once the general “safe place to walk” issue be answered in the affirmative, no great difficulty was or will be encountered in securing an affirmative answer to the only basic root issue that should have been submitted, namely, that relating to the alleged looseness of the metal strip upon the stairstep.

We have here another example of a time honored trial tactic which accompanied the introduction of the special issue practice in Texas, namely, getting a jury to follow along in answering general or undisputed issues until the desired answer to a vital or controlling issue is secured largely as a matter of routine rather than deliberation. This process has been likened to pulling on an old boot. Once the boot is started right at the top, there is little difficulty encountered with the heel. This maneuver is equally effective whether applied to primary negligence or contributory negligence.

Being in general agreement with the opinion of the Court of Civil Appeals, I would affirm that Court’s judgment and accordingly respectfully dissent from this Court’s order of reversal.

GRIFFIN and STEAKLEY, JJ., join in this dissent.

      . See Vernon’s Annotated Texas Rules of Civil Procedure, Commentaries, under Rule 279, p. 220.

      . Texas & N. O. Ry. Co. v. Pool, 263 S.W. 2d 582, Tex.Civ.App.1954, no writ.


author: PER CURIAM:

text:
    The STATE BAR of Texas, Petitioner, v. Melvin M. BELLI, Respondent.
    No. A-10081.
    Supreme Court of Texas.
    Oct. 7, 1964.

      Davis Grant, Austin, Gen. Counselor of State Bar, L. Money Adams, Jr., Asst. Gen. Counselor, for relator.
   PER CURIAM:

In. this proceeding the State Bar of Texas seeks an extraordinary writ to prohibit respondent, Melvin M. Belli, from again appearing as counsel in the courts of this state upon the basis of allegations that by his past conduct he has forfeited his nonresident privileges. Respondent is not now participating, or offering to participate, in the trial of a' case in this state. Rule X(i), Rules Governing Admission to the Bar of Texas, promulgated by this Court pursuant to Article 308, Revised Civil Statutes of 1925, reads as follows:

:‘A reputable nonresident attorney, although not licensed to practice law in Texas, may participate in the trial or hearing of any particular cause in this State, providing a resident practicing attorney of this State is actually employed and associated and personally participates with such nonresident attorney in such trial or hearing.”

When and if respondent seeks to participate in the trial of a particular case in the future, the matter of his qualification as “A reputable nonresident attorney” under Rule X(i) will be addressed to the discretion of the court in which the case is pending.

Motion for leave to file is denied.


author: MORRISON, Judge.

text:
    Biaggio ANGELICA, Appellant, v. The STATE of Texas, Appellee.
    No. 36997.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    Rehearing Denied Oct. 21, 1964.
    Raeburn Norris, Houston, on appeal only, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is attempt to commit arson; the punishment, two years.

This is a companion case to that of appellant’s co-indictee, Orato v. State, 170 Tex.Cr.R. 514, 342 S.W.2d 108, to which opinion reference is here made for a statement of the salient points. The sufficiency of the evidence to support the conviction upon a circumstantial evidence charge is challenged. Only the differences in the evidence and the testimony not discussed in our prior opinion will here be noted. The witness Jones in the case at bar testified that sometime after the fire and while he was living at Buras in Louisiana, a man, who looked like this appellant and who was accompanied by two other men, approached him at a filling station and told him that “it wouldn’t be healthy if I showed up for the trial.” Chemist and Toxicologist Tullis also testified that the dirt samples taken from under the fender of appellant’s pickup and at the scene of the fire were similar as to physical characteristics, but that a dirt sample taken from the place where appellant’s pickup was found was different as to organic material.

The witness Foster testified that appellant and Orato left the tourist court, where he was residing with them, a short while prior to the time the fire was shown to have been set, instructed him to remain at the cabins and told him that they had some business to take care of. In this trial he testified further that he did not see the two five gallon containers of gasoline again after they left and that after the officers arrived at the tourist court following appellant’s and Orato’s return, appellant walked up behind him, put his finger to his mouth and told him to keep his mouth shut.

Unlike Orato, appellant testified in his own behalf, admitted the ownership of the Chevrolet pickup in question, but stated that he and Orato had spent the time in which they were absent from the tourist cabin in working on a lift pump which involved the use of gasoline. 'He denied the threats made to the witness Jones in Louisiana or the warning made to the witness Foster. He stated that he was in the process of opening up a gambling house and that Foster was to be his bartender.

Foster testified that he was aware of no work performed by the two co-indictees on the premises on the night in question which involved the use of gasoline and the officers who made a search of the premises found no empty gasoline containers.

This, we believe, is a fair statement of the difference in the evidence adduced in this case and in the case against appellant’s co-indictee, and in the interest of brevity, the other facts will not again be stated. Under a proper charge the jury resolved the conflict in the evidence against appellant, and we find the same sufficient to support the conviction.

In brief and in argument appellant contends that the court erred in permitting the State to show appellant’s silence concerning this offense following his arrest. In Lee v. State, 165 Tex.Cr.R. 113, 303 S.W.2d 406, 407, and in the cases there cited, we recognized the rule that the State cannot avail itself of the silence of an accused prisoner as a circumstance tending to establish his guilt. But just as in Lee, supra, we hold that where accused develops such fact that reversible error is not reflected if the State pursues the matter further. In the case at bar, appellant’s counsel first elicited the information from the witness Kline that appellant had made no written statement to him concerning this offense and then later in the case elicited from the same witness the fact that appellant had made no oral statement to him concerning the same. Having gone into both matters himself originally, appellant can not be heard to complain of the State’s further interrogation concerning such silence.

Finding no reversible error, the judgment is affirmed.


author: McDonald, judge.

text:
    Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.
    No. 36128.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.
    Clyde W. Woody, Houston, for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, George Milner, James H. Miller, William- F. Alexander, Frank Watts and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for rhe State.
   McDonald, judge.

Our opinion affirming this conviction is reported in Tex.Cr.App., 372 S.W.2d 690.

The Supreme Court of the United States, on J me 22, 1964, vacated the judgment and remanded the case, Etchieson v. Texas, 378 U.S. 589, 84 S.Ct. 1932, 12 L.Ed.2d 1041 (1964), to this Court for consideration in light of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The holding of the Supreme Court of the United States in Aguilar v. Texas is binding upon this Court and requires reversal of this conviction.

Accordingly, the judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Dewey Hobson CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 37100.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.

      Edward D. Michalek, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Milton McCullough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 802b, Vernon’s Ann.P.C., for the subsequent offense of drunken driving; the punishment, six months in jail.

The state’s evidence was undisputed that on the day in question, the appellant, while driving his automobile upon a public street and highway in the city of Houston, struck the rear of another motor vehicle which had stopped at a street intersection for a traffic light.

Officers Campbell and Sevcik, who went to the scene some fifteen minutes after the collision and took appellant into custody, testified that when they arrived appellant was seated in his automobile and had a laceration in his mouth. The officers, in describing appellant’s actions and appearance at the time, testified that he had a strong odor of alcohol on his breath, his face was flushed, his speech was “slurred,” that he staggered when he walked, and both expressed the opinion that he was intoxicated.

A blood specimen taken from appellant, with his consent, was analyzed for its alcoholic content by chemist and toxicologist Robert F. Crawford, of the Houston police department. Chemist Crawford testified that the chemical analysis run upon the specimen revealed that it contained twenty-five hundredths percent alcohol by weight and that any person with such concentration of alcohol in the blood would be intoxicated.

The prior alleged misdemeanor conviction for driving while intoxicated was established by stipulation of the parties.

Appellant did not testify or call any witnesses in his behalf.

Appellant’s sole complaint on appeal is to a certain comment made by the court during his cross-examination of chemist Crawford, which he insists presents reversible error under the provisions of Art. 707, Vernon’s Ann.C.C.P.

The record reflects that while appellant was questioning the chemist with reference to how long a certain colorimeter used in-making the alcohol tests had been in the police laboratory, the following transpired:

“Q. This colorimeter, is this an item that’s been at the police station for some time or is it a newly acquired piece of equipment? A. It’s been in the laboratory for a number of years.
“Q. Has it been there ever since you have been there ?
“The Court: Counsel, this is all interesting to the jury, I am sure, but in the interest of time I wish you would develop the material facts.
“Mr. Michalek [counsel] : If it please the Court — * * * .”

Thereupon, the jury was retired, and appellant objected to the comment of the court and asked for a mistrial on the ground that it placed him in a position of “doing something that might be petty or might * * * give it a degree of pettiness.” The motion for mistrial was overruled and when the jury returned to the courtroom it was instructed by the court as follows:

“Ladies and gentlemen of the jury, any comments of the Court you will not consider as any evidence whatsoever in this case.”

Under the record, we fail to perceive any benefit to the state or injury to appellant by reason of the court’s comment. In the absence thereof, no reversible error is presented. Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    Nick Alford AGUILLAR, Appellant, v. The STATE of Texas, Appellee.
    No. 34681.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This conviction was affirmed and motion for rehearing was overruled. Aguilar v. State, 172 Tex.Cr.R. 629, 362 S.W.2d 111, 112.

On writ of certiorari, the United States Supreme Court held that the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible at appellant’s trial. Upon such holding, the judgment of this Court affirming the conviction was reversed and the case was remanded for proceedings not inconsistent with the opinion of the Supreme Court. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The holding of the Supreme Court requires that the conviction be set aside.

The judgment is reversed and the cause is remanded.


author: BELCHER, Commissioner.

text:
    Cora Gibson GRAY, Appellant, v. The STATE of Texas, Appellee.
    No. 37077.
    Court of Criminal Appeals of Texas.
    June 24, 1964.
    Rehearing Denied Oct. 21, 1964.
    M. Gabriel Nahas, Jr., King C. Haynie (on appeal), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Sidney Farmer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

Upon a trial before the court without a jury, the appellant was convicted for unlawfully carrying a pistol; the punishment, a fine of $250.

The testimony of the state sufficiently shows that the appellant was unlawfully carrying a pistol, as alleged.

Testifying in her own behalf, the appellant admitted carrying the pistol. She further stated that after closing her place of business about midnight, Saturday, she stopped at a friend’s place on the way home; that her friend asked her to keep some money for him until Monday because he was leaving the city. When she appeared uneasy about keeping the $1,100 he had given her, he handed her a pistol and told her to put it in her purse, which she did, and then she started home. After leaving in her car and traveling a short distance she had a collision, which resulted in her being charged with carrying a pistol. Appellant’s testimony was corroborated by that of her friend.

The court was not bound to accept the testimony of appellant and her friend and it is apparent from his finding of guilty that he did not do so. Lopez v. State, 172 Tex.Cr.R. 317, 356 S.W.2d 674. The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Bobby GREER et al., Appellants, v. The STATE of Texas, Appellee.
    No. 36988.
    Court of Criminal Appeals of Texas.
    June 27, 1964.
    Rehearing Denied Oct. 21, 1964.

      C. C. Divine, Houston, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen L. Stilley and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal by C. C. Divine and H. G. Divine from a judgment entered in the County Criminal Court at Law No. 2, of Harris County, forfeiting a bail bond.

The bond dated October 13, 1960, is conditioned that the principal Bobby Greer, make her appearance before the Justice Court, Precinct No. 1, Harris County, Texas. It recites that the principal stands charged with “possession of barbiturates, a misdemeanor,” and contains the usual provisions that the principal “ * * * there to remain in attendance from day to day and from term to term until discharge by due order of the court to answer the aforesaid accusation against him, and shall personally appear for any and all subsequent proceedings had relative to the above charges before the Grand Jury of said County, and before any court of said County in which said subsequent proceedings may be pending * *

The Justice Court complaint contained in the record reflects the charge against appellant to be “unlawfully have in her possession barbiturates.”

The complaint and information subsequently filed in County Criminal Court at Law No. 2, Harris County, Texas, charges the appellant with “unlawfully possess a dangerous drug to-wit, barbiturates.” Judgment nisi was entered on the 6th day of January, 1961, after the appellant failed to appear on the trial date. Said judgment was made final after notice and hearing on February 7, 1964.

The statement of facts from the hearing reflects that appellant, C. C. Divine, a practicing attorney also operated a bail bond business. On October 13, 1960, his secretary came from her office into his with three bail bonds in her hand, which bore surety signatures purporting to be appellant’s. She told Mr. Divine about the bonds which an employee of Mr. Divine’s had handed to her for her acknowledgment of signatures purporting to be those of C. C. Divine and H. G. Divine. The secretary testified that she knew the signature on the bond in question was not C. C. Divine’s, but that C. C. Divine, her employer, told her: “ * * * and he said, ‘all right, that is all right, notarize them.’ ”

Appellant C. C. Divine testified that he knew she had two bonds in her hand but did not know she also had the bond in question. He was .then asked “and it is your testimony you did not give her consent to acknowledge this bond?

“A. I sure did.”

“Q. You gave her consent to acknowledge this bond ?”

“A. Yes, without knowing I was doing so.”

The record further reflects that appellant had actual notice of what had happened relative to the signature prior to the trial setting and that he considered himself “morally” obligated to the bond.

Under the facts as stated we cannot agree with the contention here advanced by appellant that the bail bond obligation is not valid and binding on him. Appellant adopted the signatures purporting to be his on the bail bond. He did this by his statement to the notary that he had signed the papers in her hand, and his instruction to her to acknowledge the signatures purporting to be his thereon. Stout v. Oliveira, Tex.Civ.App., 153 S.W.2d 590; Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215.

Other contentions here advanced by appellant were considered in Hartley et al. v. State, Tex.Cr.App., 382 S.W.2d 483 and found to be without merit.

Finding no reversible error, the judgment is affirmed.


text:
    Sharon HARTLEY et al., Appellants, v. The STATE of Texas, Appellee.
    No. 36945.
    Court of Criminal Appeals of Texas.
    June 27, 1964.
    Rehearing Denied Oct. 21, 1964.

      C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Carl E. F. Dally, Allen L. Stilley and David Ball, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal by C. C. Divine and H. G. Divine from a judgment entered in the County Criminal Court at Law No. 1 of Harris County forfeiting a bail bond.

The bond dated June 14, 1962, is conditioned that the principal, Sharon Hartley, made her appearance before the Justice Court, Precinct No. 1., Harris County, Texas. It recites that the principal stands charged with, “misdemeanor theft (shoplifting), misdemeanor” and contains the usual provision that the principal “ * * * there to remain in attendance from day to day and from term to term until discharged by due order of the court to answer the aforesaid accusation against him, and shall personally appear for any and all subsequent proceedings had relative to the above charges before the grand jury of said county and before any court of said county in which said subsequent proceedings may be pending * * * ”.

The Justice Court complaint contained in the record reflects the charge against appellant to be “misdemeanor theft, shoplifting”. The form of the complaint is that of theft of a radio of the value of $38.96.

The complaint and information subsequently filed in the County Criminal Court at Law No. 1. on the 18th day of June, 1962, charged the defendant with the offense of shoplifting. Judgment nisi was entered in the County Court on November 23, 1962, it having been shown that the principal failed to make her appearance in the courtroom at the time the case was set for trial on that date. Said judgment was made final after notice and hearing on January 27, 1964.

In appellant’s brief it is contended that the Justice of the Peace was without jurisdiction to require the appearance of appellant in his or any other court and that the County Criminal Court at Law No. 1. was without jurisdiction to forfeit said bond since the proceeding in the County Court and that in the Justice Court were not the same proceeding.

We are not constrained to agree with appellant’s contentions.

The bond in the instant case states that the principal stands charged with “misdemeanor theft (shoplifting), misdemeanor.” The complaint and information in the County Court charges the principal with the offense of shoplifting. Further, surety on the bond, who also appeared in the capacity of representing the principal, stated under oath at the trial, wherein final judgment was entered, that the offense charged against the appellant in the Justice Court and subsequently charged on the complaint and information in the County Criminal Court at Law were identical.

Thus we conclude that the proceeding in the County Court was a subsequent proceeding relative to the charge in the Justice Court. Further, the County Court had jurisdiction of the offense of shoplifting misdemeanor theft under Art. 56, Vernon’s Ann.C.C.P. and jurisdiction to enter forfeiture and final judgment on the appearance bond.

Appellant’s next contention, that there was no binding undertaking in law between the parties to require the sureties to produce the principal before a County Criminal Court at Law, is also without merit.

Article 275a, Sec. 1, V.A.C.C.P., provides: “Where a defendant in the course of a criminal action, gives a bail bond or enters into a recognizance before any court or person authorized by law to take same, for his personal appearance before a court or magistrate, to answer a charge against him, the said bond or recognizance shall be valid and binding upon the defendant and his sureties thereon, for the defendant’s personal appearance before the court or magistrate designated therein, and for any and all subsequent proceedings had relative to the charge, and each such bail bond or recognizance shall be so conditioned except as hereinafter provided.”

Appellant’s final proposition, that dismissal of the criminal action against the principal subsequent to the entering of final judgment on the bond forfeiting exonerates the sureties, cannot be sustained. Article 436, C.C.P. is specific in the causes that will exonerate the defendant and his sureties from liability, and the statute does not list such cause. No other causes than those specified in the article will exonerate from liability. Thompson v. State, 31 Tex. 166; Martin v. State, 16 Tex.App. 265.

Finding no reversible error, the judgment is affirmed.


text:
    Lew Arnold KANAZIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36520.
    Court of Criminal Appeals of Texas.
    June 10, 1964.
    Rehearing Denied Oet. 21, 1964.
    Joe E. Turner, T. M. Reardon, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Frederick M. Stover, Asst. Dist. Attys. Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault with a prior conviction for an offense of like character alleged for enhancement; the punishment, life.

The injured party McGinty was threatened at gun point and surrendered a number of his personal belongings. Appellant was arrested the following day and positively identified by McGinty. Some of McGinty’s belongings were found in his automobile and others were traced to him. The prior conviction was established. Appellant did not testify or offer any evidence in his own behalf. We shall discuss the contentions advanced by brief and in argument.

Appellant first contends that the court erred in failing to quash the second paragraph of the indictment against him on the grounds that the conviction therein set forth (larceny from the person alleged to have been committed in the State of Michigan) was not an offense of like character to the offense of robbery by assault charged in the first paragraph; and was therefore not usable for enhancement under Article 62 Vernon’s Ann.P.C. Larceny and theft are substantially the same offense. Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462. Robbery by assault and felony theft are offenses of the same nature. Dickey v. State, 162 Tex.Cr.R. 322, 336 S.W.2d 165, and Thompson v. State, 170 Tex.Cr.R. 258, 339 S.W.2d 209. The State properly introduced Section 28.589 of the Code of Criminal Procedure of the State of Michigan Comp.Laws Mich.1948, § 750.357, showing that larceny from the person is a felony in that state. We hold that as a matter of law theft (or larceny) from the person is an offense of the same nature as robbery by assault and overrule appellant’s first contention.

He next asserts that the court erred in admitting in evidence a copy of the sentence, commitment and the prison records containing appellant’s fingerprints from the State of Michigan. Each document is certified by the Supervisor of Records of the State’s prison of Southern Michigan. The Judge of the Circuit Court of Jackson County, Michigan, where the prison and its records are located, certified as to the identity of the Supervisor of Records, and the clerk of the Circuit Court of Jackson County, Michigan, certified as to the identity of the Judge. This we deem to be in strict compliance with the terms of Article 3731a V.A.R.C.S. We find no merit in appellant’s contention that the sentence and commitment should have been attested by the clerk of the convicting court.

Appellant s last contention is that the court erred in admitting the fruit of the search of appellant’s automobile. Though repeated objections were made to testimony concerning the search, each item in question was admitted in evidence without objection, hence, no question is presented for review. Boykin v. State, 172 Tex.Cr.R. 652, 362 S.W.2d 328; Watson v. State, 172 Tex.Cr.R. 274, 355 S.W.2d 533; and Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715.

Finding the evidence sufficient to sustain the conviction and no reversible error, the judgment is affirmed.