author: DIXON, Chief Justice.

text:
    Jimmy SHELTON, Appellant, v. STANDARD INSURANCE COMPANY, Appellee.
    No. 16352.
    Court of Civil Appeals of Texas. Dallas.
    June 5, 1964.
    Rehearing Denied July 27, 1964.

      Schulz & Hanna and Yates & Yates, Abilene, for appellant.
    Burford, Ryburn & Ford, Logan Ford and Bill Wiley, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal by Jimmy Shelton from a summary judgment denying him workmen’s compensation.

The trial court based its judgment on the ground either (1) that appellant was not an employee, but was an independent contractor at the time he was injured; or (2) that if he was an employee, he was not injured in the course of his employment. Possibly judgment was based on both grounds.

FACTS

Appellant was hired by Master Corporation of Texas, through its president, Dan D. Dillingham, to drive a truck from Abilene, Texas to Wichita, Kansas by way of Dallas, Texas and return. Master Corporation was engaged in moving its business from Wichita to Abilene. At Wichita the truck was to be loaded with office equipment, etc. to be transported to Abilene. Appellant had made three previous trips for Master Corporation.

Appellant was driving a leased truck. He started from Abilene driving a truck and float. His purpose in going by way of Dallas, Texas was to exchange trucks. At Dallas he was to turn in the truck and float to the lessor, Ryder Truck Rental, Inc. and obtain a different type truck, designated as a van.

Before reaching Dallas the truck appellant was driving broke down somewhere west of Fort Worth, Texas due to battery-trouble. Appellant was delayed several hours. He did not reach Dallas until 8:00 or 8:30 o’clock in the evening. He communicated with the leasing agent and was told where to go to pick up the truck he was to drive to Wichita. He could not obtain the other truck because the garage or place where the truck was stored was closed until morning. He was told that the other truck would not be available until morning.

The son of the leasing agent drove appellant to a motel where appellant engaged a room for the night. He showered and changed clothes. Then he started to walk across the highway to a restaurant to eat his supper. While walking across the highway he was hit by an automobile and seriously injured.

Appellant testified that he was employed to drive a truck to and from Wichita, Kansas and Abilene, Texas for $40.00 per trip plus expenses. Mr. Dillingham gave him fifteen or twenty dollars when he left Abilene, for expenses. The trip ordinarily took thirty-three hours. He had to and was expected to sleep and eat on the way. In fact, he was required to have eight hours sleep before he “crossed the line.”

When the truck broke down before he reached Dallas he telephoned to Mr. Dilling-ham, who was in Abilene. Mr. Dillingham said he would get in touch with the leasing agent and help would arrive soon. Appellant waited several hours but no help came. He telephoned to Mr. Dillingham again. Mr. Dillingham said that help should have already arrived, as the leasing company was sending help from its Fort Worth office. Still no help came. Finally appellant got the truck started. He turned in the truck he had driven from Abilene, but he was too late to pick up the other truck until the next morning.

OPINION

Appellant relies on three points on appeal. He asserts that the court erred in granting appellee’s motion for summary judgment in that there are fact questions as to (1) whether appellant was in the course of his employment at the time of his injury; (2) whether his injuries arose out of his employment and out of a risk or hazard of his employment; and (3) whether appellant was an employee, or independent contractor at the time of his injury.

The general rule is that an injury incurred in the use of public streets or highways is not a compensable injury because not incurred in the course of employment as required by Art. 8309, Vernon’s Ann.Civ.St. American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374.

However, there are exceptions to the general rule. Three of these exceptions, as pointed out in the Coleman case above cited, are (1) an injury incurred in going to and from work is held to be in the course of a workman’s employment where the means of transportation is furnished by the employer; (2) so also where the employer pays another to transport the employee to and from his work; and (3) so also where the employee, in going to or from his employment undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer’s business with the express or implied approval of his employer. See also Texas General Indemnity Co. v. Bottom, Tex.Civ.App., 365 S.W.2d 350; and Jecker v. Western Alliance Ins. Co., Tex., 369 S.W.2d 776.

A fourth exception, we think, will be found in the so-called “access” cases. In these cases a workman who has been injured at a place intended by the employer for use as a means of ingress and egress to and from the actual place of the employee’s work has been held to be in the course of his employment. The courts have held that these access areas are so closely related to the employers’ premises as to be fairly treated as parts of the employers’ premises. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Texas Employers’ Ins. Ass’n v. Anderson, Tex.Civ.App., 125 S.W.2d 674.

At the time appellant was injured he was traveling on foot, so exceptions Nos. (1) and (2) referred to above do not apply. Neither does the fourth type of exception, for appellant was not in an “access” area when injured.

If appellant’s case comes within any of the exceptions it must be exception No. (3) above mentioned. Was appellant at the time he was injured undertaking a special mission at the direction of his employer, or was he performing a service in furtherance of his employer’s business with the express or implied approval of his employer? We have concluded that the undisputed evidence requires an answer in the negative to the above question.

To come within exception No. (3) it is necessary that appellant show that his injury had to do with and originated in the work, business, trade or profession of his employer and was received while he was engaged in or about the furtherance of the affairs or business of his employer. Art. 8309, Sec. 1, V.A.C.S; Texas Gen. Indemnity Co. v. Bottom, supra.

Our courts have several times held that an employee while injured on a street or public highway when walking to or from a restaurant where he had eaten is not engaged in the performance of any particular duty of his employment. This court so held in Texas Employers’ Ins. Ass’n v. Smith, Tex.Civ.App., 75 S.W.2d 732, and this holding was affirmed in Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192. This is true though the employee is furnished with a motor vehicle and expenses and though his employment may require him to be in another city, as is true of appellant in this case. Wynn v. Southern Surety Co., Tex.Civ.App., 26 S.W.2d 691. See also Williams v. Roney, Tex.Civ.App., 275 S.W.2d 537, which was a common law injury case, not a workmen’s compensation case, but it deals with the question of scope of employment. Other cases are London Guaranty & Accident Co., Ltd. v. Smith, Tex.Civ.App., 290 S.W. 774; and Banks v. Commercial Standard Ins. Co., Tex.Civ.App., 78 S.W.2d 660.

In support of his contention appellant cites a number of cases, all of which we have read and considered. None of them in our opinion is applicable here. None of them meets the requirements of exception No. (3) above. Some of them involve injuries received on the employers’ premises. Some of them are “access” cases. Others involve situations where the employers were paying for the transportation of the employees. All of them can be distinguished from the factual situation presented to us here. Appellant’s first and second points are overruled.

Appellant’s third point alleges that a fact question exists as to whether appellant was an employee or an independent contractor. We agree with appellant. However, since we have held that appellant was not within the course of his employment when he was injured, the third point becomes immaterial even if it were established that appellant was an employee. Therefore the third point will be overruled.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    T. F. HINES, Appellant, v. Donald C. DAVISON, Jr., Appellee.
    No. 4258.
    Court of Civil Appeals of Texas. Waco.
    July 30, 1964.
    Rehearing Denied Aug. 6, 1964.
    Walter E. Ressel, Sherwood Brown, Galveston, for appellant.
    Neugent & Lilienstern, Texas City, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a judgment for plaintiff in a Trespass to Try Title Suit.;. Trial was before the court without a jury. Plaintiff plead record title, and defendant plead title by limitation. Plaintiff proved his record title, and defendant testified he had the land in controversy under fence since 1933. Plaintiff testified that there was no fence around the premises in controversy until about 1953 or 1954. Plaintiff then tendered the witness Nunn, who owned adjacent property and checked his propertjr periodically. He testified there was no fence around the land in controversy in 1947 or 1948. Plaintiff’s father likewise was tendered as a witness, and testified there was no fence on the premises in controversy in 1942 or 1947.

After the plaintiff rested, defendant orally asked the court to recess the case to a later time, in order that defendant might produce some rebuttal witnesses to the witness Nunn. The trial court refused to reset the case. The defendant thereafter took the stand and retestified he had the land under fence since 1933.

The trial court rendered judgment that plaintiff recover title and possession to the land sued for; and that defendant take nothing by his cross action.

Defendant appeals, contending the trial court erred in denying defendant “an adjournment to obtain the attendance of a rebuttal witness when no prejudice will be suffered by the adverse party and he has produced a surprise witness offering testimony of doubtful character.”

Defendant’s point and contention is overruled. Plaintiff plead and proved a record title in his suit. Defendant plead and tendered testimony in behalf of his contention of adverse possession. Plaintiff tendered himself and two other witnesses to rebut defendant’s contention that he had the land in controversy under fence since 1933. Defendant said he was surprised by such testimony, orally asked for a “recess,” and filed no written motion. Moreover, defendant identified no witness who might he available at a later date to refute plaintiff’s witnesses’ testimony.

Defendant did not comply with Rules 251 or 252, Texas Rules of Civil Procedure. The complaint is that defendant’s requests for “recess” or “adjournment” were overruled. The request was oral; did not show that diligence had been used to procure such testimony; who the witnesses were; or that injury would result if such “recess” not be granted. No abuse of the discretion of the trial court is shown. Hernandez v. Heldenfels, Sup.Ct., 374 S.W.2d 196.

Defendant’s point and contentions are overruled, and the judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    Artie RUSHING, Appellant, v. Lindsey J. ESCOE, Appellee.
    No. 7583.
    Court of Civil Appeals of Texas. Texarkana.
    July 14, 1964.
    Fred J. Rafes, Waldman & Smallwood,, Beaumont, for appellant.
    Gilbert I. Low, Orgain, Bell & Tucker;, Beaumont, for appellee.
   FANNING, Justice.

Artie Rushing, as plaintiff, sued Lindsey Escoe, as defendant, seeking damages for personal injuries, as shown by plaintiff’s petition, which reads in part as follows:

“2.
“That on or about July 1, 1960, plaintiff was cutting grass working for the City on the Doty Road, No. 1135, in Orange County, Texas. When he was stopped by the defendant who ordered plaintiff not to cut the right-of-way near the road; and while he was stopped by the defendánt another employee of the City was cutting grass on the opposite .side of the road, approached the area where plaintiff had been stopped by defendant and as the bushhog that the other employee was operating passed in that area, the blade. of the bushhog caught on an object and propelled it across the road striking plaintiff in the face and causing serious injuries to plaintiff as hereinafter set out
“3.
“Plaintiff would show that defendant was negligent and careless toward him in the following respects:
“a. In stopping plaintiff from performing his duties on the occasion in question.
“b. In causing plaintiff to stop in an exposed position under the facts and circumstances.
“c. In failing to warn plaintiff of the danger.
“d. In failing to keep a proper lookout.
That said acts and omissions, each and all, were negligence and were each and all, a proximate cause of the damages and injuries sustained by plaintiff as hereinafter set out.
“4.
“Plaintiff would show that as a direct and proximate cause and result of defendant’s negligence he suffered severe injuries to his face and head, resulting in disfiguration, that the plaintiff has and in all reasonable probability will suffer great physical and mental pain, loss of earning and earning capacity and reasonable and necessary medical expenses all to his damage in the sum of TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS.”

Defendant filed a motion for summary judgment which was granted by the trial court. Plaintiff has appealed.

Foreseeability and causation are two necessary elements of proximate cause. Biggers v. Continental Bus System, Inc., 157 Tex 351, 303 S.W.2d 359. (1957).

The negligence of appellee, if any, in any of the matters stated in plaintiff’s petition, was not a proximate cause of appellant’s injuries and damages. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543, (1962); Hanson v. Green, Tex.Civ.App., 339 S.W.2d 381, writ refused, (1960).

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    James FENDLEY et al., Appellants, v. Robert E. LANGSTON et al., Appellees.
    No. 4250.
    Court of Civil Appeals of Texas. Waco.
    July 23, 1964.

      Beard, Kultgen & Beard, Waco, for appellants.
    Lamar Carnes and James C. Boone, Houston, for appellees.
   WILSON, Justice.

Appellants sued a resident of Limestone County and a resident of Harris County in the district court of McLennan County. The Harris County defendant’s plea of privilege was sustained. The petition and controverting plea alleged appellants had been induced to execute a promissory note payable to the Harris County resident by the false representations of the Limestone County resident made in the county of suit concerning the financial condition of a corporation organized by the latter defendant. It was alleged the agents of the Harris County defendant knew these facts, and knowing that the representations were false, encouraged appellants to sign the note by their own false representations that the business of the co-defendant had been profitable.

Declaratory judgment was sought against the Harris County defendant that consideration for the note had failed and appellants had no liability thereon. There was a further prayer that appellants have judgment against the other defendant “on account of the fraud hereinabove alleged for any amount which they may be required to pay” to the payee of the note.

Appellants rely on subds. 29a and 7 of Art. 1995, Vernon’s Ann.Civ.St, asserting proof of fraud by the Limestone County defendant committed in the county of suit made the action lawfully maintainable as to that defendant, and required the plea of privilege to be overruled because the other defendant is a “necessary party.” Under subd. 29a such a necessary party is one whose joinder is necessary to afford plaintiff the full relief to which he is entitled in the suit “which can thus be maintained in that county” of suit under some subdivision other than 29a. (Subd. 7, e. g., as here). Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 764. As held in the latter case, it is incumbent on plaintiffs to establish the necessity of such join-der in the action they are shown to be entitled to maintain in the county of suit against the defendant corresponding to the Limestone County defendant here.

Appellants’ argument for reversal is that the relief sought by them is a judgment that the Limestone County defendant “must pay them whatever they owe” the Harris County defendant and “this can’t be determined without joinder” of the latter. The fallacy is that appellants have prayed for a judgment that they owe the latter defendant nothing and there is no demand by that defendant in this suit. There is not yet a claim the plaintiffs owe that defendant anything. The court could grant no relief, under the pleadings, which appellants say constitutes the necessity for joinder. It could not determine what is owed so as to render judgment for any sum against the Limestone County defendant, for that was not an issue in the case. It could not be made an issue by an anticipatory pleading’ to which there was no response by the prospective claimant. It was not a necessary party to the suit against the other defendant. Affirmed.


author: PER CURIAM.

text:
    Raye ANDERSON, Appellant, v. CRAIN CHEMICAL COMPANY, Inc., Appellee.
    No. 16401.
    Court of Civil Appeals of Texas. Dallas.
    July 17, 1964.
    Wynne, Jaffe & Tinsley and Yandell Rogers, Jr., Dallas, for appellant.
    John C. Cain, Dallas, for appellee.
   PER CURIAM.

This is an appeal from an order granting appellee Crain Chemical Company, Inc. a temporary injunction against its former salesman, appellant Raye Anderson, restraining him from competing with appellee for a period of one year after termination of such employment.

It appearing from the record before us that the temporary injunction has expired by its own terms pending this appeal, the questions raised by the appeal have become moot. An actual controversy being essential to the exercise of our appellate jurisdiction, we deem it improper to decide the abstract questions of law presented by the briefs. Swank v. Sharp, Tex.Civ.App., 358 S.W.2d 950, no wr. hist.; McNeill v. Hubert, 119 Tex. 18,23 S.W.2d 331; Renfro v. Burrell, Tex.Civ.App., 138 S.W.2d 1110, no wr. hist.; 3 Tex.Jur.2d Appeal and Error — Civil, p. 313, § 50, p. 320, § 55. The question of liability for costs does not prevent the case from becoming moot. Isbell v. Rednick, Tex.Civ.App., 193 S.W.2d 736.

Accordingly the appeal is dismissed, without prejudice, however, to the rights, if any, of either party to assert liability on the temporary injunction bond or the appeal bond.

The costs of the appeal are taxed against the parties incurring the same. Isbell v. Rednick, Tex.Civ.App., supra. The costs in the trial court will be appropriately-taxed by that court in rendering final judg-anent.

Appeal dismissed.


text:
    Babe ANDERSON et al., Appellants, v. Arthur POWELL, Appellee.
    No. 16397.
    Court of Civil Appeals of Texas. Dallas.
    July 10, 1964.
    Yarborough, Yarborough & Johnson and Don Hinds, Dallas, for appellants.
    Speck, Johnson & Alexander and Harry T. Holland, Dallas, for appellee.
   DIXON, Chief Justice.

On November 27, 1961 appellee Arthur Powell signed a contract to purchase a house and lot from appellant Babe W. Anderson for the sum of $5,500, the transaction to be closed on or before February 1, 1962.

At the time of signing the contract appel-lee deposited with Commercial Title Company the sum of $200 as “earnest money and part payment.” In another paragraph in the contract it is provided that if the transaction should not be closed on or before February 1, 1962 “the $200.00 escrow deposit shall be forfeited.” In still another paragraph it is provided that in the event appellee should fail or refuse to consummate the contract, appellant “shall have the right to retain said cash deposit as liquidated damages for the breach of the contract.”

The contract also contains this recitation: “In the event the improvements on the above described property are destroyed or damaged beyond repair by fire, windstorm, hail, explosion or otherwise before this contract is consummated the purchaser may at his option, terminate this contract, and the deposit hereinbefore first mentioned, shall be returned to the purchaser.” (Emphasis ours.)

Soon after the signing of the contract the house was damaged by fire. The damage was slight and was easily repairable, as appellee himself testified. Nevertheless, appellee refused to consummate the contract on February 1, 1962 and demanded return of the $200 deposit made by him when he signed the contract.

Upon appellant’s refusal to agree to the return of the deposit appellee brought this suit against Commercial Title Company and appellant to compel return of the $200. Commercial Title Company paid the money into the treasury of the court for proper disposition and has no interest in the outcome of this appeal. In addition to his answer appellant filed a cross-action asking that he be granted judgment for the $200 deposit.

After a non-jury trial judgment was rendered in favor of appellee to the effect that the $200 deposit be returned to him.

In four points on appeal appellant in effect contends that judgment should have been rendered against appellee in his suit and in favor of appellant on his cross-action because the undisputed evidence shows that the fire did not damage the house beyond repair, therefore appellee had no right to refuse to consummate his contract, and appellant is entitled to the $200 deposit.

We agree with appellant. The contract does not contain any provision that the house should be in the same condition on the date of the closing that it was in on the date of the signing. Quite to the contrary, it provides that appellee might terminate the contract at his option if meantime the house should be damaged beyond repair. Since the house was not damaged beyond repair, as appellee himself admits, he had no option to terminate the contract because of the fire. He wrongfuly refused to consummate his contract on February 1, 1962.

What was the amount of the damages sustained by appellant because of ap-pellee’s refusal to close the transaction on February 1, 1962? It would be extremely difficult if not impossible to calculate the amount of such damage. Under the circumstances the provision in the contract for liquidated damages is valid and enforceable. It is not to be construed as a penalty. Talkin v. Anderson, Tex., 19 S.W. 852; Lipscomb v. Fuqua, 103 Tex. 585, 131 S.W. 1061; Magruder v. Poulton (Comm.App.), 257 S.W. 533; Irvin v. Lambert, Tex.Civ.App., 70 S.W.2d 495; McClendon v. Homeseekers’ Realty Co., et al, Tex.Civ.App., 272 S.W. 216; Reinhardt v. Borders, et ux, Tex.Civ.App., 184 S.W. 791; Atwood v. Fagan, 63 Tex.Civ.App. 659, 134 S.W. 765.

Though forfeitures are not favored in law or in equity, they are not illegal. Home Ins. Co. v. Puckett (Comm.App.), 27 S.W.2d 111. When the parties in unambiguous language write into their agreement a provision for forfeiture, the courts will enforce the provision. Grindstaff v. Mather, 186 S.W.2d 364; Bunn v. City of Laredo, Tex.Civ.App., 208 S.W. 675.

The judgment of the trial court is reversed and judgment is here rendered in favor of appellant Babe Anderson and against appellee Arthur Powell for the $200 now on deposit in the treasury of the court and for all costs of suit.

Reversed and rendered.


text:
    Thomas J. McHALE et al., Appellants, v. COPPELL INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 16355.
    Court of Civil Appeals of Texas. Dallas.
    June 19, 1964.
    Rehearing Denied July 24, 1964.
    Witts & Ewing, Dallas, for appellants.
    Spafford, Freedman, Hamlin, Gay & Whitham, Dallas, for appellees.
   DIXON, Chief Justice.

Appellants Thomas J. McHale and sixteen other persons on July 3, 1963 filed this class suit against appellees Coppell Independent School District and its Trustees and its Tax Collector. Appellants seek (1) a writ of mandamus directing the School District and its administrators to perform their lawful duties in the assessing and collecting of ad valorem taxes for the year 1963; and (2) an injunction enjoining the District and its administrators (a) from further utilizing an illegal scheme of taxation referred to as the “Leslie Scheme” which has been used in the past; and (b) from issuing or selling bonds based on fictitious and unlawful property valuation under the “Leslie Scheme.”

Appellees filed a general denial and later a motion for summary judgment. The motion was sustained and on August 20, 1963 judgment was rendered dismissing appellants’ suit.

In their motion for summary judgment appellees allege that the School District through its Board of Trustees on July 19, 1963 had officially adopted a formal order outlining and specifying in detail its procedure, plan and system to be used in assessing and collecting ad valorem taxes on all property located in the School District for the year 1963 and subsequent years. The existence and verity of said formal order is supported by the affidavit of S. P. Leslie, President of the Board of'Trustees of the School District, and is further evidenced by a certified copy of the formal order itself. This plan meets all the complaints lodged by appellants against the “Leslie Scheme.”

The formal order is lengthy. We see no need to describe it at length. Suffice it to say that the plan and procedure outlined in the formal order are not attacked by appellants. The plan and procedures comply with the requirements of Art. 8, Secs. 1 and 2 of our State Constitution, Vernon’s Ann.St., the general laws of the state, and with the 14th Amendment to the Constitution of the United States. Appellants in effect admit as much. They say “The mere fact that the Trustees’ order directs the implementation of a proper tax scheme does not mean that it will be so done.” (Emphasis ours.)

In two points on appeal appellants assert that there exists a material issue of fact. However, a study of the record shows that appellants are attacking only the so-called “Leslie Scheme” alleged to have been followed in the past. We need not pass on the question whether the “Leslie Scheme” was illegal,' for appellants do not seek relief for any irregularities that may have occurred under the “Leslie Scheme.” And the “Leslie Scheme” has been superseded by the new plan outlined in the formal order of July 19, 1963.

Appellants cite us to the case of City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820. That case is not in point here. The City of Houston in a test case had adopted an illegal plan which it proposed to adhere to, and the court properly issued an injunction.

In the instant case the School District has adopted a plan for 1963 and subsequent years which appellants admit is a valid and legal plan and which meets the very requirements set out in the appellate court’s opinion in the Houston case. There the plaintiffs achieved their goal by injunction. Here they have achieved it by voluntary action on the part of the taxing authorities..

We shall not presume that the taxing authorities will not carry out their formally adopted plan of taxation, or that they will refuse to perform their duties according to law. To the contrary it is to-be presumed that they will so perform their duties. The record before us contains nothing to rebut the presumption. Donna Independent School District et al. v. Sanders, et al., Tex.Civ.App., 57 S.W.2d 857.

Appellants’ two points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: HOGAN, Judge.

text:
    Bonnie L. Hargis SMITH, Plaintiff-Respondent, v. Gerald McNEW, Defendant-Appellant.
    No. 8247.
    Springfield Court of Appeals. Missouri.
    July 30, 1964.

      R. A. Esterly, Esterly & Casteel, Carthage, for defendant-appellant.
    Vernie Crandall, Frieze & Crandall, Carthage, for plaintiff-respondent.
   HOGAN, Judge.

In this case, we are called on to construe an oral agreement to farm on shares made by the plaintiff and defendant. The trial court has permanently enjoined the defendant from entering upon or cultivating certain land which belongs to the plaintiff, and the defendant has appealed. It is the defendant’s position that the parties stood in the relation of landlord and tenant and that, since he did not receive a proper notice to quit, he has been wrongfully dispossessed. He further questions the propriety of injunctive relief in the circumstances of the case. The plaintiff, on the other hand, maintains that the agreement in question was only a cropping contract, and therefore the defendant acquired no possessory interest in the land. She also says that injunctive relief was properly granted because of the cultivator’s threatened repeated trespass upon her land.

Since the case involves a claim to rights in land, we have inquired into our jurisdiction, -which we must initially determine, sua sponte, even though it is not questioned. Taney County v. Addington, Mo.App., 296 S.W.2d 129 [1]. The defendant here claims that the value of the leasehold from which he asserts he was wrongfully excluded is $650.00. This amount is obviously within our jurisdiction. Section 477.-040. What is more, the ownership of the reversion is not questioned, and while estates for years are in one sense interests in land, unless the value of the leasehold is such as to vest the Supreme Court with jurisdiction because of the amount in controversy, an action involving ownership of a leasehold does not involve “title to real estate” in the appellate jurisdictional sense. Thacker v. Flottmann, Mo., 244 S.W.2d 1020, 1023 [8-10]; Blake v. Shower, 356 Mo. 618, 620-621, 202 S.W.2d 895, 896-897 [2, 3]; Bussen v. Del Commune, Mo., 195 S.W.2d 666, 668 [3]. We therefore have, jurisdiction of the case.

Plaintiff was (and is) the owner of a small farm in Jasper County, near Carthage, of which thirteen to fifteen acres were tillable. After the death of her husband in 1957, the land lay idle for a time. In the fall of 1958, desiring to continue the use of her farm, plaintiff, through a mutual acquaintance, contacted the defendant, who owned his own farm and cultivated a number of other tracts (at least four) under arrangements which he described as “leases.”

In the “late fall” of 1958, plaintiff and defendant conducted their original negotiations at plaintiff’s home. Since the agreement or contract which finally resulted is entirely oral, the parties tracked back and forth, so to speak, a number of times over their conversations, which actually appear to have been quite informal and somewhat indefinite. As the plaintiff recalled the substance of the agreement, it was that “he [defendant] was just to put in the ground anything that he saw fit. I didn’t discuss with him what was to be put in, and he was to get two-thirds and I a third, and I paid a third of the combining and a third of the fertilizing.” There was no discussion of the length of the term during which defendant was to have the property, nor any determination made that he was to make repairs on the property. No fixed rental was agreed on, nor did the defendant ever pay rent in cash. As the defendant recalled their initial discussion, he had been told by plaintiff that she “wanted someone to rent her ground,” and defendant had inspected the premises, advising the plaintiff that he was not interested “in renting it for one crop, or one year,” because various improvements needed to be made on the tillable part of the farm; dead trees, brush and some run-down fences needed removing, and there was a ditch which needed to be filled so as to improve the access to the two north fields. The defendant told plaintiff he would “take tlie ground, if I could have it for two or three years,” and told plaintiff she would receive as her rent “one-third of the crop at the mill, less one-third the fertilizer, less one-third the combining.” After some consideration, according to the defendant, the plaintiff told him to “just go ahead and farm it like it’s yours.” The defendant had offered to execute a written lease, but plaintiff declined.

The parties are substantially agreed that the defendant did cultivate the land beginning in “the spring” of 1959, and continued cultivating it until June of 1962. During that time, according to the defendant, he made substantial improvements on the property by removing cross-fences, clearing out fence-rows, and filling in and leveling a ditch between the two north fields. It is unquestioned that the defendant decided what crops to plant and used his own equipment to cultivate the land. On occasion, he obtained assistance from other farmers, sometimes paying them in cash “if I owed them more than I had repaid them in exchange labor,” and sometimes defendant “traded labor and helped them.” Plaintiff took no part in the cultivation of the land, and defendant furnished his own seed. Mrs. Hargis continued to occupy the dwelling, and it is a fair inference that the parties shared the use of a barn, in which Mrs. Hargis’ automobile was kept and in which the defendant’s tractor was occasionally stored. When the crop was harvested, the defendant took it to market, and, as plaintiff put it, “[brought] me the third.” Except for the year 1962, when the purchaser of the crop made separate checks to the defendant and Mrs. Hargis, Mr. Mc-New would market the crop, receive the proceeds, and remit Mrs. Hargis’ share to her by check. The expense of the purchase of fertilizer, but apparently none of the other costs of cultivation, was shared, at least during part of the transactions. The records reflect that Mrs. Hargis’ net share in the proceeds was $150.00 in 1959, $191.20 in 1960, $178.20 in 1961, and $182.37 in 1962. It is fairly inferable that at the end of each crop year, there was an accounting, of a sort, between the parties; at least the defendant testified that when he “took her [plaintiff] a check,” he always “went over the figures with her,” “[took] the bills and figure[d] it out,” and the parties “settled up.”

In February 1962, plaintiff was remarried. In June 1962, after the defendant had harvested the wheat crop, he contacted the plaintiff in order to deliver her share of the proceeds. Defendant was told that plaintiff “had turned the renting of the place over to her husband,” and that he, defendant, “might be through.” According to the defendant’s evidence, he was told to see Mr. Smith, and upon inquiry was told by Mr. Smith that the arrangement or operation would be terminated. Plaintiff’s recollection was that she had told the defendant that she and her husband “were going to take care of it ourselves from then on.” Plaintiff later consulted an attorney, as did defendant, and on July 3, 1962, plaintiff sent defendant a letter (introduced in evidence) which stated that its purpose was “to notify you that the tenancy on my farm terminate on my farm as of July 3, 1962.” Shortly thereafter, defendant, through counsel, notified Mrs. Smith that he regarded the agreement as having created a tenancy from year to year, and that he expected a sixty-day notice. Acting apparently upon the advice of counsel, the defendant chose to disregard plaintiff’s requests to discontinue cultivating the farm, and on July 7, returned to the plaintiff’s farm and began. plowing, over plaintiff's objection. This action for an injunction followed.

Apparently before this litigation began, the parties sought to characterize their legal relationship rather precisely and fully. The appellant argues here that in order to find the issues presented against him, it was inferentially necessary to reach the conclusion that he was a sharecropper, and argues that such a conclusion was contrary to all the “credible evidence.” The appellant argues in his brief that both the term “sharecropper” and the relationship of owner and cropper are subject to sociological opprobrium and cannot be applied to farming practice in Jasper County. Arguing the effect of the evidence at length, and citing the cases of Fisher v. Lape, Mo.App., 176 S.E.2d 871, and Hosli v. Yokel, 58 Mo.App. 169, among others, the appellant contends that he was a tenant from year to year, entitled to sixty days’ written notice to quit, as provided in Section 441.050. The-respondent, largely upon the basis of a single periodical discussion of the subject, maintains that, in light of the evidence, the defendant must in fact be described as a sharecropper without any possessory in-, terest in the plaintiff’s land.

Contracts to farm on shares are apparently very common, but the proper construction of such contracts, as creating the relationship of landlord and tenant, or other legal status, is the subject of widely divergent views. While our courts have consistently held that an oral lease of agricultural land for more than one year creates a tenancy from year to year which can be terminated by the landlord only by giving written notice to quit at least sixty days before the end of the term, unless the date for determination has been fixed by the contract, or notice is dispensed with by agreement, most authorities, including our own cases, agree that a contract to farm on shares does not necessarily create a tenancy. Ordinarily, the principal distinction drawn between a “tenant” and a “cropper” is that the tenant has a possessory interest in the land, whereas the cultivator has only an incorporeal interest which may be merely a license, or may be a limited and qualified interest in the land, depending on the terms of the contract. In any event, the interest of the cultivator determines after the crop is gathered and divided, and the cultivator or cropper is not a tenant entitled to the statutory notice to quit required by Section 441.050. Brunner v. Gorley, Mo.App., 227 S.W.2d 81, 85 [1,2].

Since the rights of the parties between themselves depend upon the in■dividual contract, possibly the most precise and illuminating statement that can be made about the construction of agreements to farm on shares is that the mutual rights and liabilities of the parties “depend upon the intention of the parties as gathered from the attendant circumstances.” By no means all contracts or agreements for the occupation of farming lands are construed as creating the relationship of owner and sharecropper, even though they are not held to be leases; there is respectable authority, dating from an early day, that such contracts may create a species of joint adventure, while on the other hand, an examination of the evidence as a whole may show that the cropper is only an employee, even though the parties have referred to themselves as “owner” and “tenant.” Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 495-496 [1-4] [5, 6], Where an agreement or contract to farm on shares is oral and informal, as in the case here, and the evidence is conflicting, the question whether a tenancy, or some other legal relation, was created is essentially a question of fact.

We have no doubt that in this case the primary question of fact to be resolved by the trial court was whether it was the parties’ intention for the defendant to have possession of the premises, as against the plaintiff, for it is the existence of a possessory estate which distinguishes a tenant’s interest from that of a cropper or cultivator, whether the cultivator be called a co-adventurer or employee, and whether his interest be defined as a license or qualified easement. We do not understand the appellant to contend that he was excluded from the premises while a crop was yet unharvested nor to say that some balance is owing from past operations. If such were the case, other considerations might be involved. But the sense of appellant’s position is that the agreement between Mrs. Smith and Mr. McNew must be construed as an oral lease, and that Mr. McNew was entitled to sixty days’ written notice prior to the end of the term of his lease, though appellant does not, we must say, specify the date to which he claims his term ran. In our view, the only question necessarily decided by the trial court is whether the parties’ contract was in fact an oral lease, and we rej ect out of hand the notion advanced here by both parties that the trial court’s issuance of an injunction necessarily determined that the defendant was a mere servant or employee of the plaintiff. Nor, for that matter, is it determinative on this appeal what reasons the trial court may have had in mind when he issued the injunction, if the judgment is correct on any theory. City of St. Louis v. Evans, Mo., 337 S.W.2d 948, 954 [2]; Brown v. Montgomery, 354 Mo. 1041, 1050—1051, 193 S.W.2d 23, 27 [3], The question decided below was one of fact, and giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, we must affirm the judgment unless it is “clearly erroneous.” Rule 73.01(d).

The contract here was oral, and was quite informal and indefinite. We do not deprecate the arrangement for that reason, but in candor we must say that much of the evidence about the parties’ rather formal written communications after they had consulted counsel, and much of their testimony concerning their use of the words “lease” or “demise” in their conversations, when they both denied knowing the difference between a farm tenant and a cropper, is of little value in assessing their original intention. As we view the evidence, it could very reasonably be found that the defendant’s sole purpose in going on the land was to plant, cultivate and harvest one crop a year. Both parties very forthrightly stated on several occasions during the trial that they did not discuss or consider their agreement in terms of possession, and the defendant stated that plaintiff could have “come on” the property “if she wanted to.” The defendant does not contend that he occupied the farm as a dwelling place; the plaintiff continued to reside on the farm during the term of the agreement, and the defendant used only a part of the whole acreage. The sole building involved, it appears, was a barn which the plaintiff and defendant shared; the defendant stored a part of his equipment in the barn a part of the time, and “it was understood that she [plaintiff] had the use of the barn for her car on one side.” We consider it to be of some significance that neither party sought to have the other execute a written lease, although the execution of such a lease was discussed, and defendant “knew that a written lease is a lot better than an oral lease.”

There is no evidence that the parties limited their agreement to any definite, specific term. The defendant emphasized during the trial that he had insisted on having the use of the land “for two or three years,” but the time when he actually entered on the land was very indefinitely stated; the agreement was executed, according to the defendant, “in the late fall of ’58, as near as I can remember,” and defendant apparently entered or started cultivating the land “in the spring of ’59.” The evidence is susceptible to the construction that each year’s undertaking was considered to be a separate transaction; however, the intervals at which the agreement was renewed for an additional year seem to have been very irregular.

The defendant produced several witnesses to establish the custom and usage of the community, and he argues here that by custom and usage the defendant was a tenant, or lessee, and not a cropper or cultivator. We are not persuaded that the testimony of these witnesses actually established a custom or practice in Jasper County. Though one witness testified that “if there is such a thing as a specialist in the county * * * I’d be about as close as you’d get,” the testimony of this witness and the others testifying to the existence of a custom or practice consisted largely of their opinion as to what constituted a landlord-tenant or owner-cultivator relation. The evidence offered did not, in our view, actually establish a uniform custom or practice for the county, and is not persuasive in establishing what the parties’ rights were. Southwestern Freight and Cotton Press Co. v. Stanard, 44 Mo. 71, 82. See Davis v. Gatewood, Mo., 299 S.W.2d 504, 509 [3, 4].

Much of the law dealing with the rights of the parties to a contract to farm on shares is very nebulous, both as to the nature of the cultivator’s interest in the land, if any, and as to the nature of the legal relation between the owner and cultivator. It could be convincingly argued, we think, that the plaintiff and defendant were engaged in a species of joint adventure, which had been tacitly renewed from year to year; it might also be argued that their agreement was only a contract for personal services. But however that may be, we consider that it might reasonably be found that the parties did not intend to create a tenancy from year to year, or that the defendant had any possessory estate in the land, and therefore we conclude that the judgment is not “clearly érroneous” insofar as it determines that the defendant was not entitled to sixty days’ written notice to quit.

The appellant further contends that the issuance of an injunction in this case was improper, as the respondent had an adequate remedy at law. He points to the fact that the plaintiff had several legal remedies available and argues that since the plaintiff had an adequate remedy at law, the jurisdiction of equity could not be invoked.

This contention must be examined against the factual background of the case. The defendant testified, and the court could have found, that after the 1962 wheat harvest, apparently in June of 1962, the plaintiff told defendant that she had “turned the renting of the place over to her husband,” and indicated she no longer wanted to continue the arrangement with the defendant. The defendant “wanted to be agreeable,” so he went to see Mr. Smith. The record indicates that Mr. Smith, on two subsequent occasions, advised defendant that Mrs. Smith would no longer continue the present arrangement. Mrs. Smith also consulted counsel and gave notice to Mr. McNew to quit the premises. The defendant, by counsel, then advised Mrs. Smith that he did not consider he had received a proper notice and would continue to farm the land, and thereupon he returned to the plaintiff’s farm and, over her protest, began plowing. Shortly thereafter, the plaintiff sued out an injunction.

We cannot agree that the plaintiff was not entitled to injunctive relief. There appear to be adequate grounds for believing that defendant intended to continue cultivation of the plaintiff’s land, though he no longer had any right of occupancy, and had he continued, and had a crop been sown, then controversy would have arisen over title to the crop, and the plaintiff would have been denied the use of her land as well. We think it could be fairly said that an injunction would be justified to prevent a frequent repetition of the trespass, as well as to avoid multiplicity of litigation. We believe the authorities sustain the proposition that a cropper or cultivator who remains in possession of land to which he no longer has a right of occupancy may be restrained by injunction. Tharp v. Sieverling, 128 Kan. 235, 276 P. 821, 822; Collton v. Oxborough, 86 Minn. 361, 90 N.W. 793, 794; Union Central Life Ins. Co. v. Audet, 94 Mont. 79, 21 P.2d 53, 56 [5], 92 A.L.R. 571, Anno., 92 A.L.R. 578, 586, VI (h).

For the reasons indicated, the judgment is affirmed.

RUARK, P. J., and STONE, J., concur.

      . All references to statutes and rules are to RSMo (1959), V.A.M.S. and V.A.M.R., except where otherwise specifically noted.

      . Comment, John C. Crow, Cropper and Tenant Distinguished in Missouri, 24 Mo. L.Rev. 330.

      . See 1 Am .Law of Property, § 3.6, n. 18, p. 190 (1952); in 1959, 16.4% of all farms were operated by croppers, and some 70% of all tenant-operated farm land was operated on shares. II U.S. Census of Agriculture, 1959, pp. 1016-1017. In that year, the Department reported 16,973 farms operated on shares in Missouri. I U.S. Census of Agriculture, 1959, Part 17, State Table No. 20, p. 94.

      .15 Am.Jur., Crops, § 48, pp. 238-239; 3 Thompson, Real Property, § 1042, p. 142 (Repl. Yol. 1959); 1 Tiffany, Real Property, § 78, p. 114 (3rd ed. 1939); 1 Tiffany, Landlord and Tenant, § 10, pp. 38-39 (1912).

      . Vanderhoff v. Lawrence, Mo.App., 201 S.W.2d 509, 512-514, aff’d., Mo., 206 S.W.2d 569, 570 [2]; Note, 13 Mo.L. Rev. 324.

      . Johnson v. Hoffman, 53 Mo. 504, 507; Jackson v. Knippel, Mo.App., 246 S.W. 1007, 1008-1009 [1]; Moser v. Lower, 48 Mo.App. 85, 89-90; 1 Am.Law of Property, § 3.6, p. 189 (1952).

      . Davies v. Baldwin, 66 Mo.App. 577, 580; Moser v. Lower, supra, 48 Mo.App. at 90; Delaney v. Root, 99 Mass. 546, 548-549; Taylor v. Bradley, 39 N.Y. 129, 143; 1 Am.Law of Property, § 3.6, p. 189 (1952); 1 Tiffany, Real Property, §§ 78 and 79, pp. 114-118 (1939).

      . Moser v. Lower, supra, 48 Mo.App. at 90; Kamerick v. Castleman, 23 Mo.App. 481, 491—494; Delaney v. Root, supra, 99 Mass, at 548-549.

      . Johnson v. Hoffman, supra, 53 Mo. at 507 (“ * * * no definite rule can be laid down on this subject. Each case must be determined by tbe words of tbe written agreement between tbe parties.”) Moser v. Lower, supra, 48 Mo.App. at 89, (“There can be no precise rule for tbe interpretation or construction of contracts of this nature, and each case must be considered and governed by its own circumstances.”) See 15 Am.Jur., Crops, § 48, pp. 238-239; Thompson, op. eit., § 1042 at 145; 30 Am.Jur., Joint Adventures, § 17, p. 951; 52 C.J.S. Landlord and Tenant § 797 a., pp. 719-720.

      . Taylor v. Bradley, supra, 39 N.Y. at 143-144; Bowers v. Graves & Vinton Co., 8 S.Dak. 385, 66 N.W. 931, 932; Annos., 48 A.L.R. 1055, 1068; 83 A.L.R. 909, 917; 2 Tiffany, Landlord & Tenant, § 253, pp. 1648-1649 (1912).

      . Williams v. Cleaver, 4 Houst. (Del.) 453, 459; Fisher v. Nicola, 214 Iowa 801, 241 N.W. 478, 479; Hampton v. Struve, 160 Neb. 305, 70 N.W.2d 74, 79 [14, 15]; Davies v. Baldwin, supra, 66 Mo.App. at 580; Moser v. Lower, supra, 48 Mo.App. at 89.

      . Hogue v. Wurdack, supra, 298 S.W.2d at 496; Jackson v. Knippel, supra, 246 S.W. at 1008-1009 [1]; Pearson v. Lafferty, 197 Mo.App. 123, 128, 193 S.W. 40, 41-42 [1]; Comment, supra, 24 Mo.L.Rev. at 330-331; 1 Am.Law of Property, § 3.3, p. 180; id., § 3.6, p. 189 (1952).


author: STONE, Judge.

text:
    Ruby SNYDER, Plaintiff-Respondent, v. Walter HEDGES, Defendant-Appellant, and Kenneth Evans Light, Jr., Defendant.
    No. 8260.
    Springfield Court of Appeals. Missouri.
    July 31, 1964.

      Tweedie Fisher, Jefferson City, for defendant-appellant, Walter Hedges.
    Donnelly & Donnelly, Lebanon, Hugh Phillips, Camdenton, for defendant, Kenneth Evans Light, Jr.
    J. W. Grossenheider, Lebanon, Fred Foster, Jr., Camdenton, for plaintiff-respondent.
   STONE, Judge.

This is an action for damages on account of personal injuries alleged to have been sustained by plaintiff Ruby Snyder, while riding as a passenger in the front seat of a 1962 Chevrolet ambulance driven by defendant Walter Hedges, when the Hedges ambulance collided with a 1951 Chevrolet coach driven by defendant Kenneth Evans Light, Jr., on U. S. Highway 54 in the resort community known as Lake Ozark, Miller County, Missouri, about 9:10 P. M. on Tuesday, March 27, 1962. The jury returned a verdict for $4,500 against both defendants. From the judgment entered thereon, only defendant Hedges appeals.

At and near the point of accident, Highway 54 has a two-lane concrete roadway, 21 feet in width, and is treated as running east and west. Numerous establishments, catering primarily to the tourist trade, are located on each side of Highway 54 as it passes through Lake Ozark; and, on each side of the highway, there is an area, wholly paved with blacktop, between the two-lane concrete roadway and the east-and-west sidewalk in front of the business buildings. At the point of accident, the blacktop area on the north side of Highway 54 extends approximately 28'9" from the north edge of the two-lane concrete roadway to the curb in front of the Casablanca Club, and the blacktop area on the south side of the highway extends approximately SO'7" from the south edge of the concrete roadway to the curb in front of the Dam Club and Adams Market.

At the time of accident, defendant Hedges was eastbound on Highway 54, en route from the home of Mrs. Lillie Hart west of Macks Creek, Camden County, Missouri, to the Still Osteopathic Hospital in Jefferson City, Missouri. Mrs. Hart, then “seriously ill” although not “an emergency case,” was being transported to the hospital by direction of Kenneth Ridgeway, D. O., her attending physician. The patient, Mrs. Hart, was lying on a cot in the rear of the ambulance, a daughter was seated beside the cot, and plaintiff, a stepdaughter, was riding on the right side of the front seat. As the ambulance proceeded on its mission, a revolving and blinking dome light flashed a red beam from the top of the vehicle and two red lights on the front of the vehicle blinked alternately. The weather was clear and the pavement was dry.

Defendant Light had parked his Chevrolet automobile on the north side of Highway 54 in front of the Casablanca Club, headed north and thus at right angles to the highway. Accompanied by a female companion, Light entered his Chevrolet with the intention of backing from his parking place and then proceeding toward the west on Highway 54. Regardless of whether or not his view to the west (the direction from which the Hedges ambulance was approaching) was obstructed or limited by another parked automobile (as to which different inferences might be drawn from his pretrial deposition and from his testimony upon trial), Light readily admitted that he did not look to his left or to the west after he “commenced to move” his automobile backward, that his attention then was directed to a “buddy” in front of the Casablanca Club, and that he never saw the eastbound ambulance prior to the collision. He described his backing, preparatory to traveling west on the highway, in this language r “I backed out into the highway with my-back end going east. I was backing from-north to east, this way.” (All emphasis-herein is ours.) In his trial testimony,. Light thought that, at the time of collision, the left rear portion of his automobile was six to eight inches across the center line of the concrete roadway of Highway 54, i.e., on the south side thereof. In: reporting to Sergeant Seeley, the investigating officer, shortly after the accident,. Light had said “that I backed out in front of the ambulance.” Without undertaking' to fix the point of impact more precisely,, the clear import of the testimony as a. whole is that the collision occurred on the south side of the center line of the highway and that, at the time of accident, the eastbound Hedges ambulance was wholly in its-right-hand (the south) lane of the two-lane-concrete roadway.

Plaintiff’s witness Sandfort, a “good! friend” of defendant Light, testified that in his 1961 Chevrolet pickup he had followed the eastbound Hedges ambulance for some three miles before it reached Lake Ozark, with Sandfort maintaining a distance of “about four car lengths” or “7O' feet” between the two vehicles; that the ambulance traveled at a speed of “59 to-61 miles an hour * * * on the average 60 miles an hour”; and that, prior to-the accident, the stop lights on the ambulance did not come on and the ambulance did not slacken speed or swerve. Sand-fort said that, as for himself, “I slowed down when I seen [sic] Mr. Light go out in the middle of the road and the ambulance not slowing down,” and that the ambulance then “was about one-half of one-tenth of a mile” from the Light automobile. When asked by Light’s counsel' whether that distance would have been “about 260 feet,” Sandfort grunted an “uh huh.” Sergeant Seeley, also called as a witness for plaintiff, found skidmarks, 60' feet in length, made by the ambulance in the eastbound (south) traffic lane. These marks “angled toward the south edge of the [concrete] pavement” and- terminated in "the area of the debris.”

The initial vehicular contact was between the left front corner of the eastbound ambulance and the rear 18 inches of the left rear fender of the Light automobile, the front end of which must have been pointed in a northwesterly direction with the rear end toward the southeast. The entire left side of the eastbound ambulance was damaged as it sideswiped the left rear corner of the Light automobile and came to a stop on the concrete roadway about “one car length” (so Light said) east of the point of collision. Neither Hedges nor Light was asked specifically, and it is not clear from the record (or of importance here), whether, at the moment of impact, Light had brought his backing automobile to a complete stop. Prior to the collision, Hedges did not sound either the horn or the siren on the ambulance.

Defendant Hedges’ description of the accident was: “It [the Light automobile] zoomed out of the parking area there where it was parked into my pathway and it was just a split-second timing — I mean the boy was there and I was there, and I put my brakes on just immediately and we were together. There just wasn’t any time element to it. * * * There wasn’t time to do anything. I mean he just came out there and I applied the brakes, turned my car off of the right-hand side as much as I could, and that was about all the time there was.” When asked to estimate his speed “within the last 150 or 200 feet before the collision,” Hedges answered “between 35 and 40 miles an hour.” After agreeing that she had not complained at any time concerning speed, plaintiff estimated the speed of the ambulance at “possibly 40 miles an hour” as it drove through Lake Ozark. Her counsel offered in evidence four kodak pictures (of the admission of which defendant Hedges then and now complains) showing “School Crossing,” “Speed Zone — 30 Miles” and “Congested District Ahead” signs on the south shoulder of the highway which eastbound vehicles pass near the west edge of Lake Ozark. Sergeant Seeley, the only witness who testified on this subject, stated that “there wasn’t any [traffic] congestion in the area” on the evening of the accident under consideration.

Defendant Hedges’ primary complaint on this appeal is that the trial court erred in giving plaintiff’s verdict-directing instruction 1 by which the case was submitted as to Hedges (so he insists) upon general negligence, whereas plaintiff’s petition charged him with specific negligence. The petition contained four assignments of alleged negligence on the part of defendant Hedges, each of which was stated in a separate sub-paragraph. Three of these assignments were conventional charges of specific negligence, namely, (1) operation of the ambulance at a high, dangerous and excessive rate of speed, (2) failure to keep a proper lookout, and (3) failure to slacken speed, stop or swerve. The fourth assignment (hereinafter referred to as the quoted assignment) was that Hedges negligently “caused or permitted his ambulance to drive into the rear of the automobile driven by defendant Kenneth Evans Light, Jr., when by the exercise of the highest degree of care he could have avoided said collision.” Instruction 1 hypothesized certain undisputed facts, i.e., (a) that plaintiff was a passenger in the Hedges ambulance eastbound on Highway 54 in Lake Ozark, (b) that Hedges was in exclusive control of the ambulance, and (c) that the Light automobile “had been parked east of the Chevrolet ambulance and was backing in a southerly direction from the north shoulder of said highway onto said highway and into the eastbound lane of traffic,” and then directed a verdict for plaintiff upon the findings “that defendant Walter Hedges failed to exercise the highest degree of care in the operation of his Chevrolet ambulance and negligently and carelessly caused, allowed and permitted his Chevrolet ambulance to collide with the rear of the automobile driven by defendant Kenneth Evans Light, Jr.” and that plaintiff was injured as a direct and proximate result thereof. Obviously, the submission as to defendant Hedges was on the quoted assignment in the petition.

It undoubtedly is true that where, as here, the petition includes assignments of specific negligence, the case may not be submitted on general negligence. Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59, 62(1), 63(3); State ex rel. Spears v. McCullen, 357 Mo. 686, 691, 210 S.W.2d 68, 70(1); Roscoe v. Metropolitan St. R. Co., 202 Mo. 576, 588, 101 S.W. 32, 34. So recognizing, counsel for plaintiff assert that the giving of instruction 1 did not transgress against the stated principle because (in their words) “this instruction constituted a submission of specific negligence under the facts and the pleadings.”

The language of the quoted assignment of negligence in plaintiff’s petition and of the hereinbefore-quoted finding required by instruction 1 strongly suggests reliance upon the so-called rear-end collision doctrine, and two of the four cases cited by plaintiff’s- counsel in justification of the instant submission [Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Coit v. Bentz, Mo., 348 S.W.2d 941] discussed and dealt with that doctrine. A case properly submissible and submitted under the rear-end collision doctrine is regarded as a submission on specific negligence [State ex rel. Spears, supra, 357 Mo. loc. cit. 691, 210 S.W.2d loc. cit. 70(2); Gooch v. Lake, Mo., 327 S.W.2d 132, 134 (3); Witherspoon v. Guttierez, Mo., 327 S.W.2d 874, 880(5)], the rear-end doctrine being defined as the “rule” recognizing that “if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, 362(3); Branch v. Gordon’s Transports, Inc., Mo.App., 375 S.W.2d 418, 421(1); Glowczwski v. Foster, Mo.App., 359 S.W.2d 406, 408-409(1); Doggendorf v. St. Louis-Public Service Co., Mo.App., 333 S.W.2d 302, 305(1).

The very language of the quoted' definition indicates that this doctrine originally contemplated that both vehicles would be in motion at the time of collision. Doggendorf, supra, 333 S.W.2d loc. cit. 305. In; later cases, the doctrine has been extended to factual situations where the front vehicle-is at rest and there is no issue as to a sudden or improper stop thereof. E. g., McVey v. St. Louis Public Service Co., Mo., 336 S.W.2d 524, 527; Doggendorf, supra. But, in any application of the doctrine, it remains essential to plaintiff’s recovery for the evidence to show, and for plaintiff’s, verdict-directing instruction to hypothesize and require the finding of a state of facts demonstrating, that the front vehicle was in a place where it then had the right to be. McVey, supra, 336 S.W.2d loc. cit. 527; Coit, supra, 348 S.W.2d loc. cit. 944; Doggendorf, supra, 333 S.W.2d loc. cit. 305.

In the instant case, plaintiff charged, and the jury found under plaintiff’s verdict-directing instruction 2, that defendant Light “failed to exercise the highest degree of care in the operation of his motor vehicle in that he so backed his automobile into the eastbound [south] lane of traffic and into the ambulance * * * when he saw or should have seen said ambulance approaching from the west, at a time and place when he knew or should have known * * that a collision would likely occur between the two vehicles * * * and that this was negligence on the part of * * * Light which directly and proximately caused the collision.” In backing onto the traveled two-lane concrete roadway of Highway 54, certainly the exercise of the highest degree of care demanded that Light keep a lookout both before he began to back and while he was in the act of backing. McCloud v. Saling, Mo.App., 259 S.W.2d 699, 701(3, 4) ; Hicks v. De Luxe Cab Co., Mo.App., 189 S.W.2d 152, 154(2, 3); Shamp v. Lambert, 142 Mo.App. 567, 571-572, 121 S.W. 770, 772(1). Under the testimony, the jury’s finding of negligence on the part of defendant Light was clearly permissible and fully justified. McCloud, Hicks and Shamp, supra. See also Vincent v. Raffety, Mo.App., 344 S.W.2d 293, 296(5); Barnes v. Vandergrift, 364 Mo. 829, 833-834, 269 S.W.2d 13, 16; Brumback v. Simpson, Mo., 247 S.W.2d 635; Wheeler v. Breeding, Mo.App., 109 S.W.2d 1237, 1242(2, 4-6); Nance v. Lansdell, Mo.App., 73 S.W.2d 346, 348(1); 60 C.J.S. Motor Vehicles § 302, p. 712.

So, this was not a rear-end collision in which there was a following and overtaking vehicle traveling behind and in the same direction as a lead or front vehicle, but rather the eastbound ambulance ran into the left side of the Light automobile near its rear end as Light was preparing to travel in a westerly direction. Aside from this, the evidence did not show, and the jury did not find, that the Light automobile was, at the time of collision, in a place where it then had the right to be and that it then was being operated properly as required in the •exercise of the highest degree of care; but plaintiff charged, the evidence showed, and the jury found, to the contrary. Clearly, this case was not submissible under the rear-end collision doctrine.

However, plaintiff’s brief carefully avoids any definite statement that she relies on that doctrine, and the other two cases cited in justification of the instant submission [Chiodini v. Terminal R. Ass’n. of St. Louis, Mo.App., 287 S.W.2d 357; Eoff v. Senter, Mo.App., 317 S.W.2d 666] were vehicle-pedestrian cases not involving that doctrine. In Chiodini, supra, it was held that “a prima facie case of specific negligence was made by showing that the operator of a large and heavy tractor-truck train [defendant’s employee] simply drove it with force and violence into a human being [plaintiff, a Pullman conductor] who, for half a minute, had been standing stationary and motionless on a station platform where he had a right to be, in plain view of the driver287 S.W.2d loc. cit. 362(3). In Eoff, supra, defendant either “negligent in the extreme, or worse, * * * guilty of wantonness or recklessness” [317 S.W.2d loc. cit. 670] caused his standing automobile to “ ‘lunge forward’ ” without warning into plaintiff, a parking lot guard, “[f]our or five seconds” after plaintiff had walked around in front of the automobile and had signaled a right turn. 317 S.W.2d loc. cit. 668. Plaintiff’s instructions in Chiodini and Eoff, supra, were held to have been submissions of specific negligence under the broad general principle that “[i]n simple fact situations a recovery on the theory of specific negligence will be permitted to stand where plaintiff . specifically charges, proves and submits the negligent commission of ‘a common law wrong by a specified person, under specified circumstances, at a specified place, in the doing of a specified thing, in a specified manner, the whole of which the law denominates as negligence.’ ” Chiodini, supra, 287 S.W.2d loc. cit. 361(2). Even as in cases submitted under the so-called rear-end collision doctrine, thé hypothesized facts (simple and elemental in nature) required to be found by the instructions under consideration in Chiodini and Eoff, supra, were such as to demonstrate negligence on the part of those against whom verdicts were authorized.

The hypothesization in instant plaintiff’s instruction 1 with respect to the movement of the vehicles and the conduct of their drivers was that the Hedges ambulance was eastbound on Highway 54 in Lake Ozark, that the Light automobile “had been parked east of the Chevrolet ambulance and was backing in a southerly direction from the north shoulder of said highway onto said highway and into the eastbound lane of traffic,” and “that defendant Walter Hedges failed to exercise the highest degree of care in the operation of his Chevrolet ambulance and negligently and carelessly caused, allowed and permitted his Chevrolet ambulance to collide with the rear of the [Light] automobile.” Again, we note parenthetically that the ambulance actually collided with the left side of the Light automobile near its rear end. But, passing that, the mere occurrence of the collision did not establish negligence on the part of defendant Hedges [Herr v. Ruprecht, Mo., 331 S.W.2d 642, 647(3); Anthony v. Jennings, Mo.App., 368 S.W.2d 533, 537(4) ; Miller v. Wilson, Mo.App., 288 S.W. 997, 999(4)], and the facts hypothesized in instruction 1 were not such as to demonstrate or justify an inference that Hedges had been negligent. Contrast Chiodini and Eoff, supra.

“In fact situations in which the doctrine of res ipsa loquitur is inapplicable and a case of specific negligence is sought to be stated the extent to' which plaintiff must particularize depends upon the circumstances.” Chiodini, supra, 287 S.W.2d loc. cit. 361(1); Beard v. Railway Express Agency, Inc., 323 S.W.2d 732, 740. See Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 476(15). We are of the opinion that, in the circumstances of the instant case, plaintiff’s instruction 1 did not constitute a submission on specific negligence but rather submitted general negligence and accorded to the jury a roving commission to find against defendant Hedges. Plaintiff having pleaded (and undertaken to prove) specific negligence, the giving of instruction 1 submitting the case on general negligence constituted reversible error. Girratono, supra, 363 loc. cit. 364, 251 S.W.2d loc. cit. 62(1), 63(3).

The other point pressed by defendant Hedges on this appeal predicates error on the admission in evidence of four kodak pictures showing “School Crossing,” “Speed Zone—30 Miles” and “Congested District Ahead” highway signs which the ambulance passed near the west edge of Lake Ozark. The ambulance was an “emergency vehicle” within the statutory definition [V.A.M.S. § 304.022, subsec. 3(1)], but defendant Hedges’ right to the exemptions granted to the driver of an “emergency vehicle” was neither pleaded nor proved. V.A.M.S. § 304.022. In this state of the record, we could not say that the admission of these kodak pictures constituted reversible error “materially affecting the merits of the action.” V.A.M.R. Rule 83.13(b) ; V.A.M.S. § 512.160(2).

Although defendant Light has not appealed, it necessarily follows from our disposition of the case as to defendant Hedges that the issue of damages must be retried as to defendant Light, inasmuch as the final judgment, if plaintiff should prevail against Hedges as well as Light, must be in the same amount against all defendants held liable. Gardner v. Simmons, Mo., 370 S.W.2d 359, 366(10); Cox v. Wrinkle, Mo., 267 S.W.2d 648, 653(8); Bauman v. Conrad, Mo.App., 342 S.W.2d 284, 290(11); Davison v. Farr, Mo.App., 273 S.W.2d 500, 505(12) ; Polkowski v. St. Louis Public Service Co., 229 Mo.App. 24, 33, 68 S.W.2d 884, 889(8, 9). See also Yarrington v. Lininger, Mo., 327 S.W.2d 104, 111(17); Rosenkoetter v. Fleer, Mo., 155 S.W.2d 157, 160(8).

Accordingly, the judgment in favor of plaintiff is reversed and the cause is remanded (a) for retrial on all issues as to defendant Hedges and (b) for retrial on the issue of damages only as to defendant Light, with the verdict against Light on the issue of liability to be held in abeyance pending entry of judgment following such retrial.

RUARK, P. J., and HOGAN, J., concur.


author: HUGHES, Justice.

text:
    Evalyn Mae POEHLS, Individually and as next friend for Nita Ann Poehls et al., Appellants, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 11218.
    Court of Civil Appeals of Texas. Austin.
    July 22, 1964.
    Rehearing Denied Aug. 19, 1964.
    Bedford & Underwood, Paul Petty, Bal-linger, for appellants.
    Hardeman, Smith & Foy, San Angelo, for appellee.
   HUGHES, Justice.

This is a Workmen’s Compensation case in which each party made a motion for summary judgment. The motion of appel-lee, Texas Employers’ Insurance Association, was granted. The motion of Evalyn Mae Poehis, individually and as next friend for her three minor children, appellants, was denied.

Charles Lindy Poehis, the husband and father, respectively, of appellants was ac-cidently killed on February 28, 1963, while driving a butane truck. On such date he was employed by Eugene A. Kasberg. On such date there was in force a workmen’s compensation insurance policy issued by appellee to “Eugene A. Kasberg dba Miles Gin Company.” On such date Mr. Kasberg was the sole owner and operator of the Miles Gin Company. On such date Mr. Kasberg also operated a butane sales and service business under the name of “Kas-berg Butane Sales Company.”

Mr. Poehls worked for Mr. Kasberg in and about the gin and as a butane truck driver and route salesman. His principal duty at the gin was to haul cotton seed. This seed was purchased by Mr. Kasberg when the cotton was ginned and later sold by him to various oil mills around the country. Mr. Poehls hauled this seed to those mills. When not hauling seed, Mr. Poehls did other work about the gin. He was the only year-round employe of Mr. Kasberg.

In his butane business, Mr. Kasberg maintained regular routes. Mr. Poehls was his route salesman. His duties were to visit the various customers, check their butane storage tanks and to sell and ' deliver to them the butane needed.

The butane business is regulated by the Railroad Commission, and a license is required. Mr. Kasberg had the required license. Mr. Poehls also was required to pass an examination as a butane truck driver and he complied with this requirement.

Mr. Poehls was paid by the hour for his gin work. He was paid a commission for his work in the butane business.

Mr. Kasberg kept one set of books and made but one income tax return. He did not separate the gin business from the butane business.

Butane gas was not used as fuel for operation of the gin, although a small amount of butane was used in a tractor used for gin purposes. This butane was obtained from a bob-tail unit used in the butane business.

Mr. Kasberg testified:
“Q Mr. Kasberg, is there any necessity in the operation of your gin for you to also make butane sales to farmers?
“A I use that butane sales to keep in contact with farmers through the year, and that way I get the ginning from them in the Fall.
“Q You also make a profit on your butane sales?
“A Oh, yes.
“Q Many gins are operated without selling them butane, are they not?
“A Oh, Yes.
“Q And you could very well operate your gin without making butane sales ?
“A Yes.
“Q And you could very well operate the gin without making butane deliveries to farmers, could you not?
“A Yes.”

When killed, Mr. Poehls was driving a butane truck owned by Mr. Kasberg and he was then engaged in servicing the route as a salesman for Mr. Kasberg.

The Railroad Commission of Texas requires a butane operator to carry either workmen’s compensation insurance or liability insurance on his employes. Mr. Poehls was the only employe which Mr. Kasberg had in his butane business and he carried employer’s liability insurance on Mr. Poehls with the Western Alliance Insurance Company. This policy was issued to “Eugene A. Kasberg dba Kasberg Butane Sales Company” and the classification of operations covered by it include the work in which Mr. Poehls was engaged at the time of his death. This policy bore a Dividend Risk Endorsement which expressly excluded from its coverage operations of the insured in the business of “Cotton Gins.”

The policy in suit, issued by appellee, was a workmen’s compensation insurance policy issued to Eugene A. Kasberg dba .Miles Gin Company, as the insured, and it insured the employes of Mr. Kasberg falling within this “classification of operations: ”

“0401 — Cotton Gins. — all employees, engaged in the operation of gin, installation and repair of equipment, maintenance and repair of buildings including clerical, yardmen, seed and fuel haulers. $3,000.00 9.26 277.80
“The intent of the above wording is to include at one rate, clerical and/or drivers payroll as well as the payroll of every person employed in or about the gin both during the ginning season and the dormant season.”

This policy had a Divided Risk Endorsement which reads, in part :•

“OPERATIONS EXCLUDED:
“1. Operations in a business separate from the business in which the Texas operations described in the declarations are conducted:
“2. Operations in the business described in the declarations but covered by the policy of another insurer:
“ ‘Operations of Eugene Kasberg dba Kasberg Butane’ (Dealers National Ins., Policy WC-504409, May 24, 1962/63.”

The reference to the Dealers National Insurance Company policy in the above endorsement is inaccurate in reciting the policy number. Then in force was Dealers National Insurance Company policy No. W.C.204409. This policy had attached a Divided Risk Endorsement which read, in part: “OPERATIONS EXCLUDED 1. Operations in a business separate from the business in which Texas operations in the declarations are conducted: Cotton Gins.”

As previously stated, the insurance policy in force covering the employes (1) of Mr. Kasberg in his butane business, at the time of Mr. Poehl’s death, was with Western Alliance Insurance Company.

Appellants would have us convert the Divided. Risk Endorsement purporting to exclude certain- operations recited to be described in the policy declarations but covered by other insurance into an endorsement including those operations. Their reasons for so doing are that the Dealers policy referred to was not and never had been in existence and such endorsement, prepared by appellee, constituted a .recognition and admission by appellee that Mr. Kasberg had only one business -and Mr. Poehls was within the coverage of the policy in suit.

We cannot subscribe to either of these contentions. The obvious purpose of the endorsement was to exclude business operations in which Mr. Kasberg was engaged which were “covered by the policy of another insurer.” These operations were expressly stated in the endorsement to be the operations of Mr. Kasberg “dba ’Kas-berg Butane.” The fact that the endorsement gave :an incorrect number to the policy then in force and that the insurance carrier for. Mr. Kasberg’s butane business was subsequently changed is, in our opinion, immaterial and insufficient to alter the plainly stated purpose of the endorsement. The name of the insurance carrier and the number of the policy were but incidental to the objective of the endorsement.

We also consider as irrelevant, in considering the effect of this Divided Risk Endorsement, the recitation that the business operations excluded were described in the policy declarations. It would not matter that such operations were described in the policy declarations if they have been properly excluded from coverage by the Divided Risk Endorsement. Of course, if the business operations purportedly excluded were never included within the policy declarations, there was nothing to exclude in the Endorsement. If this were a case of doubtful construction of the policy declaration as applied to the facts, we undoubtedly would consider the recitation in the endorsement that such policy declarations covered the butane business of Mr. Kasberg, and that he had but one .business. We entertain no doubt that Mr. Kasberg had two distinct businesses, a gin business and a butane business, and that appellee insured only the gin business.

■ [3] We quote the following from appellants’ brief:

“ ‘The Defendant’s Workmen’s Compensation Policy itself shows on its face that the Defendant Insurer did not consider that the insured was conducting any other separate ' business for the reason that said policy, in the declarations, .contains Paragraph 7, which we. quote:
“The insured is not conducting other operations at or from the locations described herein or any operations at or from any other location in a state designated in Item 3, except as herein stated: *
“Below, on the face of said policy, the asterisk is shown to mean, 'Absence of entry indicates “No exceptions”.’ This shows that the Defendant Insurer recognized that the butane storage and delivery on the gin premises was not a separate business.”

■ Appellants also direct our attention to the definition of “employee” as contained in Art. 8309, Sec. 1, and particularly to the language added by amendment in 1937 SO' as to include within the definition of employes those employes who are employed in the usual occupation of an employer but who are temporarily directed by the employer to perform services outside the usual course of such occupation.

It is our opinion that the decision in this case is controlled by Pacific Indemnity Company v. Jones, 160 Tex. 164, 327 S.W.2d 441, and the cases therein cited and approved.

While, as held in Barron v. Standard Acc. Ins. Co., 122 Tex. 179, 53 S.W.2d 769, cited in Jones, an employer under the Workmen’s Compensation Act cannot cover part of his employes and leave part uncovered when they are engaged in the same general business or enterprise, an employer engaged in two or more separate and distinct kinds of business “may elect to insure a class of employees in one business and not insure a class of employees in the other business.”

We quote from Jones its analysis of two decisions which we deem to be of such factual similarity to this case as to be indistinguishable :

“In United States Fidelity & Guaranty Co. v. Bullard Gin & Mill Co., Tex.Civ.App., 245 S.W. 720, 721, no writ history, an insurer sought a recovery of additional premiums on the ground that its policy covering the employer’s ‘cotton ginning and pressing’ business also covered the same employer’s box factory located some 150 yards from the gin. Recovery was denied. In Barta v. Texas Reciprocal Ins. Co., Tex.Civ.App., 67 S.W.2d 433, writ refused, it was held that compensation benefits could not be recovered from an insurer of an employer’s gin employees for the death of the employer’s employee working at a corn sheller on the same premises. In Buice v. Service Mutual Ins. Co., Tex.Civ.App., 90 S.W.2d 342, writ refused, the employer was engaged in the gin business, as a farmer, in threshing grain for the public and in general repair work. Compensation benefits were sought for the death of an employee while engaged in repairing the employer’s binder located some four or five hundred yards from the employer’s gin. The insurer’s policy covered only employees engaged in the gin operation. Recovery was denied. There can he no doubt that those cases were correctly decided under the rule of the Barron case, and in the two (Barta and Buice) decided after 1927 we refused writ of error thereby making them as authoritative as our own decisions.”

The Court in Jones also cited and quoted from, approvingly, the case of Merrick v. Street, 91 S.W.2d 851, Fort Worth Civ. App., writ ref., wherein it is stated that the Workmen’s Compensation “law was intended to protect employees who are engaged in the same enterprise.”

It is our opinion that the evidence conclusively shows that Mr. Kasberg was engaged in two separate businesses and enterprises, the gin business and the butane business. There was no connection between the two, direct or indirect, although the butane business may have helped to create or maintain a friendly relationship between Mr. Kasberg and potential customers of his gin.

Since Mr. Poehls did haul fuel and since he did drive a truck and since both activities are described in the policy declaration, appellants say he is covered by the policy. This simple solution of the case would do violence to the judicial concept that the Workmen’s Compensation Insurance Act was intended to protect employes engaged in the same enterprise.

Appellants cite Maryland Casualty Company v. Sullivan, 160 Tex. 592, 334 S.W.2d 783 wherein it was held:

“In view of the interrelated and commingled character of financing and bookkeeping of the two businesses— Bavousett Fertilizer & Chemical Co. and Better Crop Dusters Co., we cannot say that they were two separate and distinct kinds of business. They were so managed and operated by Bavousett as to amount to different phases of the same class or kind of business; viz., selling and applying chemicals and insecticides. Under the record we hold that Sullivan was covered by the petitioner’s policy.”

The gin and butane business have nothing in common. The basic commodity of one is cotton. The service performed is the separation of the lint from the seed. This is done at the gin. No butane is utilized in this process. The basic commodity of the other business is butane gas or a mixture called “butane,” which is used as fuel. It is transported and sold to farmers and ranchers on routes regularly serviced. Neither business is dependent upon the other for anything. They are completely unrelated. We do not believe the factual situation here is comparable to the situation in Sullivan, supra. Even there, two of the Justices dissented on the ground that there were separate businesses.

Finally, appellants say that the Divided Risk Endorsement on the policy in suit should not be considered by us because there is no showing by appellee that such endorsement was ever approved by the State Insurance Board as required by Art. 5.57, Texas Insurance Code, VA.T.S.

Appellants are in no position to make this contention. The policy is marked by the reporter “P 3” which indicates that appellants introduced it into the record. The record does not indicate appellants made any reservations in so introducing it.

.

Furthermore, this case was tried upon a ■stipulation of the parties which provided, in part, that the record on appeal should consist of “the original deposition of Eugene A. Kasberg and the exhibits attached thereto.” The policy sued on was one of such exhibits and the endorsement was a part of such policy.

The judgment of the Trial Court is affirmed.

Affirmed.