author: TIREY, Justice.

text:
    J. C. DORSETT et ux., Appellants, v. STATE of Texas et al., Appellees.
    No. 4663.
    Court of Civil Appeals of Texas. Waco.
    Dec. 28, 1967.
    Rehearing Denied Jan. 18, 1968.

      C. Benton Musslewhite, Lufkin, for appellants.
    Sumner Williams, Jr., Lufkin, for appel-lees.
   OPINION

TIREY, Justice.

Mr. and Mrs. Dorsett have appealed from a judgment in the County Court of Angelina County in a condemnation suit in Cause No. 1680 in that Court. The facts here do not yield to a simple statement. Prior to the institution of the suit on appeal condemnation proceedings had been filed against Mr. and Mrs. Dorsett with reference to another tract of their land which was to be taken for the loop designated 283 around the City of Lufkin, and those proceedings were held under Cause No. 1302 in the County Court in Angelina County. The Special Commissioners in Cause 1680 awarded Mr. and Mrs. Dorsett $550.00 in damages for their property which was located on a farm-to-market road No. 1475. The award was entered on the 22nd day of August, 1963 and was filed in the County Qerk’s office on the 6th day of September, 1963.

The State of Texas and Angelina County went to trial on what they designated as “Plaintiff’s Statement” to the Judge of the County Court, and their First Supplemental Petition. In their First Supplemental Petition they set out fully that while they were in the trial in Cause No. 1302 of the County Court, which was the other condemnation proceedings relating to part of the Defendants’ land, that they began negotiations for settlement for the tract described in Cause No. 1302, and at the same time entered into negotiations to settle with the Defendants for their damages for the taking of Defendants’ land in Cause No. 1680, and that said negotiations resulted in an oral agreement to settle both causes, and that such settlement was made pursuant to the agreement; that Plaintiffs having orally agreed to settle both causes and having accepted the money agreed upon in settlement for each of the causes they are barred from prosecuting their appeal in Cause No. 1680. In this case Mr. and Mrs. Dorsett, through their attorneys of record, for the purpose of obtaining the right to open and close the case, filed the following admission:

“ * * * and here now admit that they are the owners of the property sought to be condemned by Plaintiffs in this cause; that it is subject to condemnation proceedings, and that the Plaintiffs are entitled to have the same condemned and have condemned and gone into possession thereof in the manner provided by law; that all procedural requisities to taking have been satisfied and the taking is in all respects regular; and that the only issues between Plaintiffs and Defendants are the value of the tract of land condemned, the damages to Defendants by reason of such condemnation and the damage to the remainder of Defendants’ land, if any, by such taking, and the issue of settlement * * (Emphasis added.)
The Court’s charge consists of 4 issues.
Issue 1 is:
“From a preponderance of the evidence, do you find that Defendants, J. C. Dorsett and wife, Hester Dorsett, have been paid $5,542.00, $550.00 and $1,500.00, totaling $7,592.00, in full settlement of this cause of action and cause of action No. 1302, styled State of Texas et al vs. J. C. Dorsett et ux, pending in this court?
“Answer ‘Yes’ or ‘No’.”

In connection with the foregoing issue the Court gave the following instruction:

“By the term FULL SETTLEMENT as used in the foregoing Special Issue means an agreement or compromise which has been reached after there has been an offer to compromise submitted by one party, and an unconditional acceptance of that offer by the other party, within the limit and on the terms offered, and where there has been a dispute as to the amount of the claim of one party against the other, and where there has been a meeting of the minds of the parties.
“If you have answered Special Issue No. 1, ‘Yes’, then you need not answer Special Issues Nos. 2, 3, and 4.”

The jury answered the foregoing Issue “Yes” and did not answer Issues 2, 3 and 4.

On the foregoing verdict judgment was entered to the effect that the State of Texas and the County of Angelina do have and recover from Mr. and Mrs. Dorsett an easement for a farm-to-market road for right-of-way purposes over and across the tract of land in question for the purpose of constructing and maintaining a farm-to-market road No. 1475 in such county and described the tract taken by metes and bounds and the decree vested the easement in such property in the State of Texas and divested the easement out of Mr. and Mrs. Dorsett. The judgment further recites that Mr. and Mrs. Dorsett have heretofore settled and compromised this cause of action and have been paid and have received the sum of $7,592.00 in full and final settlement of this cause of action, as well as the cause of action styled: State of Texas v. J. C. Dorsett, et ux., numbered on the docket of the Court as No. 1302 heretofore referred to, and decreed accordingly.

The judgment is assailed on 19 Points. Points 1 through 8 are briefed together.

Point 1 is to the effect that the evidence shows as a matter of law that there was no settlement because the property in question was a rural homestead and neither appellant executed a written instrument conveying the property or agreeing to a settlement.

Point 2 is to the effect that there was no settlement in view of the statute of frauds which requires all contracts conveying real estate to be in writing.

Three is to the effect that the parties had not made a binding contract of settlement, but had only negotiated the terms of such settlement which was not to become binding until appellant executed a deed or judgment entered in the County Court.

Four is that there was no consideration for the agreement.

Five is that the Appellant repudiated the agreement prior to the payment of consideration to them.

Six is that there is no evidence that Mrs. Dorsett agreed to any compromise settlement.

Seven is that the evidence is insufficient to sustain the answer to Issue 1; and

Eight is that the jury’s answer to Issue 1 is against the overwhelming weight and preponderance of the evidence.

We overrule each of the foregoing contentions on the authority of our Supreme Court found in City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, and Affirm the judgment of the Trial Court. Our Supreme Court in the foregoing case fully and clearly states the effect of the law of eminent domain when it is exercised by the state or anyone duly authorized to invoke it. We think the factual situation in the Grandjean case is very similar to the factual situation in the case at bar. However, the application of the law made by our Supreme Court to the factual situation in the Grandjean case is less favorable to Appellants than in their case before us. In the Grandjean case the wife had not been made a party to the condemnation proceedings, but her separate property was involved, and she accepted the award made by the condemning authority. In the case at bar Mrs. Dorsett was made a party to the condemnation proceedings and the Special Commissioners had made the award in each of these cases. In the Grandjean case the Court made the following significant statement:

“ * * * the true principle is that, since the state has the inherent and paramount right to the property when needed for public purposes, the determination by the proper authority that the necessity for the taking exists, and the taking, and the adjustment with the owner of the question of compensation, however effected, complete the appropriation, and devote the property to the public use. The conditional paramount title of the government becomes absolute when the compensation is assessed or agreed upon and paid, or when its payment is waived. The doctrine in eminent domain implies that it is to be exercised against the will of the owner. It is his want of consent that renders its exercise necessary, and hence it is not consistent with the theory of the doctrine that any conveyance from the owner or decree of court is essential to pass the title. The dissent of the owner to the taking is unavailing. His right, under our constitution, except as against the state itself, is to demand that, before the property be taken, his compensation shall be paid. When he accepts as compensation a sum of money, whatever the amount, and in whatever manner arrived at, his property, to the extent of the taking, is expropriated and appropriated to the use of the public. The question of compensation out of the way, he must yield to the inevitable. The state’s right is to take or accept without a conveyance, and hence, when the compensation is adjusted, no conveyance is necessary.”

The Supreme Court has not seen fit to modify or overrule the doctrine there stated. See opinion: State of Texas v. Jackson, 388 S.W.2d 924, Supreme Court, Points 1 and 2.

Appellants further contended that the testimony is insufficient to sustain the jury verdict, and further, that the jury’s verdict is against the great weight and preponderance of the evidence. Much testimony was tendered pro and con as to the compromise and settlement agreement» and it tendered an issue for the jury. We are of the view that it would serve no prece-dential value to quote it, and it would unduly extend this opinion. We have given all the evidence our careful consideration and, after so doing, each of appellants’ contention is overruled. The evidence is ample to sustain the verdict of the jury and the verdict is not against the great weight and preponderance of the evidence.

We have considered each of appellants’ other points, and we are of the view that none present reversible error, and each is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Dillie KNOX, Appellant, v. FIRST NATIONAL BANK OF MESQUITE, Appellee.
    No. 4675.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1967.
    Rehearing Denied Jan. 4, 1968.
    Muse, Currie & Kohen, Sam P. Kohen, Ralph W. Currie, Eades & Eades, Eric Eades, Jr., Dallas, for appellant.
    Robert M. Ewing, Dallas, Loncy L. Leake, Mesquite, for appellee.
   OPINION

TIREY, Justice.

The First National Bank of Mesquite, ap-pellee here, brought this action against Mrs. Dillie Knox, joined pro forma by her husband, W. C. Knox. The action is based on a promissory note in the principal sum of $16,615.17 executed and delivered by Mrs. Knox and her husband, but no judgment was sought against the husband, he having been discharged in bankruptcy. At the conclusion of the evidence the court overruled motions by plaintiff and defendant for an instructed verdict and submitted two issues to the jury. They are:

“1. Do you find from a preponderance of the evidencé that on April 21, 1964, when Mrs. Dillie Knox signed the note in question she did not receive anything of value or benefit for signing such note?
“Answer ‘She did not’ or ‘She did.’
“Answer: She did.
“2. Do you find from a preponderance of the evidence that the defendant, Mrs. Dillie Knox, in signing the promissory note in question did act to assist and obtain credit for her husband, Walter Clay Knox?
“Answer ‘Yes’ or ‘No.’
“Answer: Yes.”

The court overruled defendant’s motion to disregard the findings on special issues and her motion for judgment non obstante veredicto, and judgment was entered in favor of the bank against the separate estate and property of Mrs. Knox for the sum of $16,615.17, which includes principal and interest and attorney’s fees to date of judgment and interest at 6%, and for costs. Mrs. Knox perfected her appeal to the Dallas Court and the cause is here on transfer.

The judgment is assailed on 19 points of error.
Point 1 says the court erred in rendering judgment for plaintiff on the verdict because there is no evidence to support same.

Appellant has briefed all of her alleged points under one argument, save and except her points 2 and 3.

Point 2 assailing the judgment on the insufficiency of the evidence; and
Point 3 assailing the judgment because the verdict is against the great weight and preponderance of the evidence and credible testimony.

Appellant briefs points 2 and 3 together.

We overrule each of the points briefed by appellant under the above statement. The evidence is uncontradicted that the note in suit was executed on April 21, 1964 in the sum of $12,910.00. The bank President testified to the effect that the note had been previously renewed by the same parties on December 16, 1963, at which time it required the signature of both parties and also testified to the effect that the note executed April 21, 1964 included accrued interest to the note due at the date of renewal. There is other evidence to the effect that the renewal note was made under the supervision and instructions of the attorney for appellant. We think the evidence shows that in the execution of the note sued upon there was á forbearance on the part of the bank to institute suit on the previous note and the perpetuation of her community interest along with her husband’s, and the payment of the interest was added to the note and in this instance there was an extension of time for the payment of the indebtedness. We think anyone of these items shows that there was value and benefit to the appellant, and that it was sufficient to support the findings that there was a consideration. We think our position here is fully supported by the Negotiable Instruments Act of the State of Texas, Article 5933, Sec. 25, which defines value as follows:

“Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”

See Black v. Frank Paxton Lumber Company, 405 S.W.2d 412, (n. w. h.) Dallas Court, 1966. See this case and authorities there cited. Moreover, the capacity of a married woman to contract was expanded by our legislature by its enactment of Article 4626 on May 24, 1963, which became effective August 24, 1963. That Article reads as follows:

“A married woman shall have the same powers and capacity as if she were a feme sole, in her own name, to contract and be contracted with, sue and be sued, and all her separate property, her personal earnings and the revenues from her separate estate which is not exempt from execution under the laws of Texas shall thereafter be subject to her debts and be liable therefor, and her contracts and obligations shall be binding on her.”

It is obvious that the effective date of the foregoing statute was several months prior to the execution of the note by Mrs. Knox and her husband on December 16, 1963. At that time every fact as to the possibility of want of consideration was legally and actually known to Mrs. Knox and her husband and her lawyer, but she elected to execute here renewal note, and on April 21, 1964, she executed the renewal note, joined by her husband, which note is in issue in this cause. We think that as a matter of law when Mrs. Knox re-executed the note that she waived any issue of want of consideration. See Gaylord Container Division v. H. Rouw Company, 392 S.W.2d 118, Supreme Court.

So here we have a situation which shows that Mrs. Knox did receive benefit or value which is readily determinable by a jury from the evidence because there was a prior existing indebtedness created December 16, 1963, and was reaffirmed by the execution of the note in this cause dated April 21, 1964. So here we have a note executed by Mrs. Knox, which was an extension of time for an antecedent debt, and which was a forbearance to sue, all of which warrants consideration. Under the authorities above cited we think Mrs. Knox waived her right to the defense of want of consideration because the note which is in issue was a renewal of a prior note and debt under the same conditions.

Finally, we think the judgment of the trial court should be affirmed for the reason that the evidence supports the finding of the jury to special issue No. 2, and further that appellant in signing the note acted as an accommodation for her husband. There is testimony in the record which reflects that the bank would not renew the note unless it contained Mrs. Knox’ signature. We think this testimony raises the question as to why her signature was on the instrument with conflicting testimony as to who the accommodation party is. It seems to us that this is a proper question for determination by the jury. The jury, after hearing all the evidence, was of the view that Mrs: Knox did lend credit to her husband who was a co-maker. We think the testimony tendered is ample to support the jury findings in this respect and that the jury’s verdict is not against the great weight and preponderance of the evidence. See Kitten v. Vaughn, Tex.Civ.App., 397 S.W.2d 530, (n. w. h.); Koen v. Gardner, Tex.Civ.App., 178 S.W.2d 173, (n. w. h.); Edwards v. Hatch, Tex.Civ.App., 106 S.W.2d 741, (n. w. h.).

We have carefully considered this record and are of the view that there was no reversible error committed by the trial court and that the trial court’s judgment should be affirmed.

Accordingly, it is affirmed.


author: BATEMAN, Justice.

text:
    REPUBLIC NATIONAL BANK OF DALLAS, Appellant, v. Burnett ESTES and Dan Gibbs, Appellees.
    No. 16998.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 22, 1967.

      Adair Dyer, Jr., of White, McElroy & White, Dallas, for appellant.
    Herbert L. Hooks, of Hooks & Wyrick, Dallas, for appellees.
   BATEMAN, Justice.

This is an interlocutory appeal from an order sustaining a plea of privilege. The appellant sued Burnett Estes on ten promissory notes signed by Estes and payable to appellant, and for foreclosure of a deed of trust lien on land situated in Denton County, Texas. The appellee Dan Gibbs was made a defendant on an allegation that he was the record owner of the land. No money judgment was sought against him — only foreclosure. Although he was a resident of Dallas County, where the suit was filed, he filed a plea of privilege to be sued in Denton County, where the land is situated. Appellant controverted the plea of privilege on the ground that the suit, as evidenced by its petition, was not one to recover the lands or damages thereto, or to remove encumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, within the meaning of Section 14 of Vernon’s Ann.Civ.St., Article 1995, but was merely one to foreclose a deed of trust lien thereon so far as Gibbs was concerned.

At the hearing appellant introduced in evidence its petition and the parties stipulated that Gibbs resided in Dallas County and' appeared to be the record owner of the land “secured by the deed of trust lien that is alleged and set out in Plaintiff’s Petition,” and that the only relief sought as to Gibbs is foreclosure on the land. Thus, the facts are undisputed and we have only the narrow question of law as to whether the trial court erred in sustaining the plea of privilege.

Article 1995, V.A.C.S., provides: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following casesFollowing this provision are numerous sections containing exceptions to the general rule so stated. The one relied on by appellee is Section 14, as follows:

“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

When the suit is one falling within the terms of Section 14, and a defendant files a plea of privilege to be sued in the county in which the land is located, the subdivision is mandatory and the cause must be transferred to that county. South Texas Development Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937).

However, this suit was not such a suit as is contemplated by Section 14, and appellee’s plea of privilege was erroneously sustained. A suit to fix or foreclose a lien on land is “not one to recover land or damages thereto, to quiet title to land, or stay waste thereon.” Holcomb v. Williams, 194 S.W. 631 (Tex.Civ.App., Fort Worth 1917, no writ), cited with approval in Bennett v. Langdeau, 362 S.W.2d 952, 955 (Tex.1962).

This is not a suit filed in the county in which the land is situated, wherein a defendant seeks to have it removed to the county of his domicile. In such a case the plaintiff’s rights arise from Section 12 of Article 1995, V.A.C.S., providing that a foreclosure suit “may” be filed in the county in which the property or a part thereof is situated, and in such a case the existence and validity of the debt and lien are essential “venue facts” which must be established by a preponderance of the evidence. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Hagan v. Acme Drilling & Service Co., 225 S.W.2d 870 (Tex.Civ.App., Eastland 1950, no writ).

Here, however, the only “venue facts” were: (1) the nature of the suit, (2) the county of appellee’s domicile, and (3) that the land or a part thereof lay in Denton County. The best evidence of the first was the appellant’s petition, and the second and third were stipulated. Therefore, all the necessary venue facts were established. Appellant was not required to establish either the existence or the validity of its notes and deed of trust in the venue hearing. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 72 (1945).

The judgment is reversed and the cause remanded for trial on its merits.

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    Mike William ZABOROWSKI, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16876.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 15, 1967.
    Rehearing Denied Jan. 12, 1968.

      Guy H. McNeely, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

The appeal is from the suspension of the Texas Motor Vehicle Operator’s License of Mike William Zaborowski. Suspension was for a period of one year upon the adjudication that Mr. Zaborowski was an habitual negligent driver. Trial was before the court without intervention of a jury.

The single point of error presented is as follows: “The evidence is wholly insufficient to sustain a finding that the Appellant is an habitual negligent driver.” Whether the point presented asserts that there was “no evidence” or was “the finding made was against the great weight and preponderance of the evidence” it is in our opinion without merit and is overruled.

Appellant’s theory is that though the evidence introduced against him by way of proof of convictions of violations of the Act might have justified the suspension of his license had the Texas Department of Public Safety sought such under Vernon’s Ann.Civ.St. Art. 6687b, Art. IV, Sec. 22, “Authority of Department to suspend or revoke a license”, subsection (b)4 as “an habitual violator of the traffic law”, in view of the provision under the subsection that an “habitual violator” shall mean any person with four (4) or more convictions for moving violations of traffic laws arising out of different transactions in a consecutive period of twelve (12) months, or seven (7) or more such convictions arising out of different transactions within a period of twenty-four (24) months, — such proof should not be given consideration in a case where the suspension of license is sought under subsection (b)3. Subsection (b)3 provides for the authority of suspension when after proper hearing it is determined that the licensee “is an habitual reckless or negligent driver of a motor vehicle”. It was under such subsection that antecedent proceedings culminated in the judgment from which the appeal was perfected.

Oral evidence was introduced in behalf of the appellant from persons having occasion to observe his driving care and ability. This evidence was to the effect that he was not an habitual reckless or negligent driver of a motor vehicle. The appellant did not impeach the record of moving traffic violations which was introduced against him as transactions which resulted in convictions (or their legal equivalent). Such record was substantially the whole of the evidence tendered in support of the suspension sought by the Department. Therefrom it is observable that the violations of the appellant did not exactly fit the usual suspension proceedings under subsection (b)4, for they were so spaced that the transactions out of which they arose did not number as many as four in twelve months nor as many as seven in twenty-four months. However, the type of transactions evidenced the propensity of the appellant not only to such character of violations, but additionally that such violations often resulted in motor vehicle accidents. In other words, we hold that the certificate introduced against the appellant was legal evidence properly received by the court and also amounted to evidence of sufficient probative force and effect to support the fact finding made.

Furthermore, we hold that the court’s finding in support of the judgment of suspension was not against the great weight and preponderance of the evidence.

Judgment is affirmed.


author: WILSON, Justice.

text:
    Robert M. CURRY, Appellant, v. Patrick FARABAUGH et ux., Appellees.
    No. 4667.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1967.
    J. 41ex Blakeley, Rae Ann Fichtner, Dallas, for appellant.
    Matthews & Matthews, Arthur G. Schroeder, Jr., Dallas, for appellees.
   OPINION

WILSON, Justice.

The problems in this case arise because defendant-appellant’s appeal is upon a transcript only, without a statement of facts.

Plaintiffs sued defendant for damages alleging in general terms that defendant fraudulently induced plaintiffs to assume payment of a debt to avoid impression of a mechanic’s lien on a residence building being constructed by defendant for plaintiff, and that defendant executed a promissory note representing the debt. Plaintiff prayed for judgment in the amount of the note and for exemplary damages. Judgment was rendered in the amount of the debt.

Defendant pleaded as a defense a discharge in bankruptcy. He now urges that plaintiffs’ pleading does not allege facts which constitute the essential elements of fraud to support the judgment, or which would establish the debt as one not affected by discharge under the Bankruptcy Act.

For the purpose of decision we assume, without deciding, that the pleading is insufficient in the respect now asserted, as not alleging all the elements constituting the statutory exception.

There was no special exception or other attack on the pleadings in the trial court. Rule 90, Texas Rules of Civil Procedure, provides that defects, omissions and faults in pleading, of form or substance, not brought to the trial court’s attention as therein provided, shall be deemed waived.

The judgment for plaintiff in the amount of the debt recites that the court, after hearing evidence, finds defendant “is guilty of the fraudulent conduct perpetrated upon the plaintiffs as alleged” in plaintiffs’ pleading. No formal findings of fact or conclusions of law were filed or requested.

In the absence of a statement of facts it will be presumed the evidence introduced supports the judgment. Thompson v. Republic Acceptance Corp. (Tex.Sup., 1965) 388 S.W.2d 404.

It will also be presumed the court found such facts as are necessary to support the judgment. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363.

Appellant insists that since the judgment recites the trial court found that defendant is guilty of the fraudulent conduct alleged in plaintiffs’ pleading, the presumption (from absence of a statement of facts) is limited to this recital as a basis for judgment. The rule is otherwise. In Graham Nat. Bank v. Beavers (Tex.Com.App.1927) 290 S.W. 529, the trial court’s judgment in a non-jury case recited that the court found the description in a mortgage was insufficient to give notice, and defendant had no actual notice. As here, there were no formal findings. The court noted the judgment did not show it was rendered solely on the ground of invalidity of the mortgage. Judge Speer wrote for the Commission of Appeals:

“The possible inference that the trial court decided the case upon the sole issue of the insufficiency of the mortgages should not be indulged to destroy the more general inference of an implied finding upon every material issue submitted.”

In our opinion, in the absense of a statement of facts, it will be presumed also that the issue of fraud such as to constitute an exception to the effect of discharge in bankruptcy was tried by implied consent under Rule 67, Texas Rules of Civil Procedure. Restelle v. Williford, Tex.Civ.App., 364 S.W.2d 444, writ ref. n.r.e. See Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Gadd v. Lynch, Tex.Civ.App., 258 S.W.2d 168, writ ref.

Neither party refers to or briefs the effect of Rule 299, Texas Rules of Civil Procedure on the questions involved.

Even if plaintiffs’ pleading did not contain all the elements or allegations of fact necessary to compose a complete ground of recovery as against the defense of bankruptcy discharge, it did contain allegations of some of such elements, existence of which the judgment recites the court found. Rule 299 provides that where one or more elements of a ground of recovery consisting of multiple elements are found, “omitted unrequested elements, where supported by the evidence, will he supplied by presumption in support of the judgment,” Here, in the absence of a statement of facts or any request for findings, the presumption supports the judgment.

In Bednarz v. State (1943) 142 Tex. 138, 176 S.W.2d 562, 563, where no statement of facts was filed, Chief Justice Alexander wrote: “ * * * if any additional findings were needed, under Rule 299 all omitted findings necessary to support the judgment will be supplied by presumption in support of the judgment.”

The judgment is affirmed.

      . 11 U.S.C.A. Sec. 35: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * were created by his fraud


text:
    Frank C. MUSSO and wife, Mary P. Musso, Appellants, v. James F. CRONLEY and wife, Josephine Cronley, Appellees.
    No. 4670.
    Court of Civil Appeals of Texas. Waco.
    Dec. 14, 1967.
    Rehearing Denied Jan. 4,1968.

      Billings, Pierce, Gilley & Stanton, William F. Billings, Nina Lambeth, Charlie R. Wise, Dallas, for appellants.
    Erhard, Cox & Ruebel, Robert C. Cox, Dallas, for appellees.
   OPINION

WILSON, Justice.

This action was framed as a boundary dispute. Appellee-plaintiff sought judgment for title to a three-foot strip between two city lots and an injunction requiring removal of alleged encroachments. In a non-jury trial title was decreed to be in appellee, and appellants were ordered to remove the encroachments. We affirm.

Although appellants pleaded the 25-year statute of limitation, they concede they failed to establish any right thereunder, and their sole point on the merits is that the undisputed evidence shows they acquired title by adverse possession under the ten-year statute, Art. 5510, Vernon’s Ann.Tex. St.

Appellants did not plead adverse possession under Art. 5510. They pleaded only that they acquired title under the 25-year statute, Arts. 5519 and 5519a.

In the absence of such pleading it is not necessary for us to decide whether the undisputed evidence establishes appellants’ right to judgment under the ten-year statute, nor to pass on their complaint of the court’s failure to file additional findings of fact, request for which was not called to the court’s attention.

Rule 94, Texas Rules of Civil Procedure prescribes that pleas in avoidance and affirmative defenses, including a statute of limitation, be pleaded affirmatively. In the absence of such pleading the defense is waived. Tex-Craft Builders, Inc. v. Housing Authority of Texas City, Tex.Civ.App., 404 S.W.2d 337, 339 and cases cited; Maher v. Gonzalez, Tex.Civ.App., 380 S.W.2d 764, and cases cited. See Denwitty v. Wesley, Tex.Civ.App., 405 S.W.2d 440, writ ref. n. r. e.

Appellant argues that the issue of adverse possession under the ten-year statute was tried by implied consent under Rule 67, Texas Rules of Civil Procedure, and lack of pleading was thereby waived by failure to object to evidence which would have established rights under that statute.

The purpose of Rule 94 is to give the opposing party notice of the defensive issues to be tried. Petroleum Anchor Equipment, Inc. v. Tyra (Tex.Sup., 1967) 419 S.W.2d 829, 835; Reid v. Associated Employers Lloyds, Tex.Civ.App., 164 S.W.2d 584, writ ref. Appellee was given notice that evidence would be adduced on the 25-year statute, not the other. The evidence offered was admissible under the pleaded statute, and was relevant to the issue pleaded. It was not incumbent on appellee, consequently, to object to the evidence on the ground it was not within the pleading in order to avoid waiver. Such an objection would have been untenable since there was pleading to support admission of the evidence.

Since it is conceded appellants failed to establish the only defense pleaded, and since the issue now relied on was not tried by implied consent, the judgment is affirmed.


author: COLLINGS, Justice.

text:
    Leslie D. BOND, Appellant, v. Joseph H. SNOW and Marco T. Eugenio, Appellees.
    No. 4189.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 15, 1967.
    Rehearing Denied Jan. 12, 1968.
    Leland D. Sutton, Abilene, for appellant.
    McMahon, Smart, Sprain, .Wilson & Camp, William H. Berry, Jr., Abilene, for appellees.
   COLLINGS, Justice.

Leslie D. Bond brought suit against Dr. Joseph H. Snow and Dr. Marco T. Eugenio seeking damages for alleged medical malpractice. The defendants filed a motion for summary judgment and plaintiff filed an answer thereto. After a hearing, the defendants’ motion was granted and summary judgment was rendered in their favor. Leslie D. Bond has appealed.

Appellees’ motion for a summary judgment asserted that there was no issue of material fact and that they were entitled to judgment as a matter of law. Each of the appellees filed an affidavit and deposition setting forth appellant’s condition and the treatment given and in support of his motion asserted that he had provided appellant with that character of care which a reasonably prudent medical doctor similarity situated would have provided under the same or similar circumstances. Appellees also filed in support of their motion an affidavit by Dr. Jim M. Hooks, an orthopedic surgeon, that he had read the depositions of appellees, had examined the hospital records of appellant, had familiarized himself with the care and treatment of appellant by appellees while in the hospital and afterward, and that in his opinion the post operative infection suffered by appellant was not due to any negligence or malpractice on the part of either of appellees and that the type of care and treatment afforded appellant was in keeping with the kind and character of treatment which a reasonable and prudent medical doctor similarly situated would have provided under same or similar circumstances.

Appellant Bond urges one point of error in which it is contended that the court erred in rendering a summary judgment against him because his pleadings stated a meritorious cause of action against appellees and appellees failed to meet their burden of proving there were no genuine issues as to any material fact in the case. The point is well taken.

On. motion for summary judgment the burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Sup.Ct.1965). A defendant moving for summary judgment has the burden of proving that as a matter of law the plaintiff, under his pleadings has no cause of action against the defendant. Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App., 1953, ref. n. r. e.); Kelty v. Travelers Insurance Co., 391 S.W.2d 558 (Tex.Civ.App., 1965, ref. n. r. e.). The basis of appellant’s cause of action against appellees, as stated in his pleadings, is that appellees were negligent in the detection, care and treatment of an infection or infections which he incurred subsequent to a surgical operation, known as a laminectomy, performed upon him by appellees.

Appellees sought to show that appellant had no cause of action against them by their opinion testimony and the opinion of another medical doctor that ap-pellees were not negligent in their treatment and care of appellant, but, on the contrary, provided that character of care which a reasonably prudent doctor would have provided under the same or similar circumstances. This proof did not meet the burden required of a defendant moving for summary judgment. It is well settled that the opinion of experts, even when unanimous and without contradiction, is not conclusive but only raises a question of fact for determination by the finder of facts. Hood v. Texas Idemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948); Texas Life Ins. Co. v. Hatch, 167 S.W.2d 802 (Tex.Civ.App.1942, ref. W.M.); Texas Employers’ Ins. Ass’n v. Humphrey, 140 S.W.2d 313 (Tex.Civ.App.1941, writ ref.); Guinn v. Coates, 67 S.W.2d 621 (Tex.Civ.App., 1934, no writ history); Huston Lighting and Power Company v. Adams, 316 S.W.2d 461 (Tex.Civ.App., 1958, ref. n. r. e.). Opinion evidence is not of that conclusive character required for the rendition of a summary judgment. McDonald, Texas Civil Practice, Sec. 17, —26.5; Mallow v. City of Denton, 356 S.W.2d 705 (Tex.Civ.App., 1962, ref n. r. e.); Villagomez v. American Motorists Insurance Company, 391 S.W.2d 537 (Tex.Civ.App., 1965) reversed on other grounds Supreme Court, 398 S.W.2d 742.

For the reasons stated the judgment is reversed and the cause is remanded.


author: COLEMAN, Justice.

text:
    HOUSTON AVIATION PRODUCTS CO., Appellant, v. GULF PORTS CRATING CO., Appellee.
    No. 15116.
    Court of Civil Appeals of Texas. Houston.
    Dec. 28, 1967.
    Rehearing Denied Jan. 18, 1968.

      Engel & Groom, Van E. Wittner, Jr., Houston, for appellant.
    Moore & Putnam, Houston, Gene E. Putnam, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a suit for damages to airplane elevators owned by appellant which appellee had crated for export. At the conclusion of appellant’s evidence, the trial court withdrew the case from the jury and directed a verdict for appellee.

Appellant presented evidence that the elevators were delivered to appellee for crating for export in good condition. Appellee, a company engaged in the business of crating goods and merchandise for shipment, finished its work and, at the instruction of appellant, delivered the merchandise to Strickland Transportation Co., Inc., for shipment to New York. Thereafter it was transported by ship to Oslo, Norway, where it was delivered to Scandinavian Airlines System. The Airline reported to appellant that the merchandise was damaged. Appellant sent an agent to inspect it. He found that the metal skin of the elevators was scratched and punctured. He also found that a wooden stringer had been attached to the bottom of the box, in which the elevators were packed, by nails which were sticking out into the inside of the box. There was testimony that the damage was caused by the nails. There was no testimony that the stringer was nailed to the box by employees of appellee. There was no testimony that the damage occurred while the merchandise was in the possession or custody of appellee.

It is appellant’s contention that appellee is liable for the damage under the law of bailment. There is no pleading of negligence.

On an appeal from an instructed verdict, the evidence must be viewed in the light most favorable to the appellant. The court will indulge against the instruction every inference that may be drawn from the evidence, and if the record reflects any evidence of probative force, either direct or circumstantial, which if believed by the jury would establish a prima facie case, the instructed verdict is improper. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952).

A bailor makes out a prima facie case of negligence against a bailee by proving the bailment, delivery of the property to the bailee in good condition, and damage to the property while in the possession of the bailee. Big “D” Auto Auction, Inc. v. Hightower, 368 S.W.2d 881 (Tex.Civ.App., Eastland 1963, n. w. h.); 8 C.J.S. Bail-ments § 50, p. 514.

Since the contract for bailment terminated on delivery to the carrier, there is no evidence of probative force that the merchandise was injured while in the possession of appellee. The fact that a stringer was nailed to the box is no evidence that it was nailed by appellee as distinguished from the trucking company or the shipping company, each of which was an independent bailee. Republic Nat. Life Ins. Co. v. Bullard, 399 S.W.2d 376 (Tex.Civ.App., Houston 1966, ref., n. r. e.). Appellee is not responsible for the negligence of other bailees. Shuttles Bros. & Lewis v. Woodson State Bank, 277 S.W. 708 (Tex.Civ.App., Eastland 1925, error ref.). “Where there is a succession of bailees, there is a presumption that damage to the bailed goods occurred while the goods were in the possession of the last bailee, in the absence of evidence to the contrary.” 8 C.J.S. Bailments § 50, p. 528.

Since appellant failed to offer evidence of probative force that the merchandise was damaged by appellee, or while in the possession of appellee, no presumption of negligence on the part of appellee arose. Henry Grady Hotel Corporation v. Grady Motors, 96 Ga.App. 416, 100 S.E.2d 125 (1957).

The judgment of the Trial Court is affirmed.

PEDEN, J., not participating.


author: BARROW, Chief Justice.

text:
    Carlos D. SAMANIEGO, Jr., Appellant, v. Jesus DeLEON, Appellee.
    No. 14642.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 27, 1967.

      Biery, Biery, Woods & Davis, San Antonio, for appellant.
    John R. Taylor, Randle Taylor, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant appeals from a take-nothing judgment rendered after a jury trial in his suit to recover damages from appellee for personal injuries he sustained in a pedestrian automobile accident. The jury found primary negligence against appellee as well as damages in the amount of $4,000, but found, in response to Questions Nos. 6 and 7, that appellant voluntarily placed himself in a hazardous position immediately prior to sustaining his injuries and that such voluntary act was a proximate cause of his injuries. The jury was unable to agree upon other defensive issues and the incomplete verdict was accepted by the court without objection. The trial court overruled appellant’s motion to disregard Questions Nos. 6 and 7, and appellant has perfected this appeal under Rule 324, Texas Rules of Civil Procedure, without filing a motion for new trial.

Appellant asserts that the findings to Questions Nos. 6 and 7 do not establish the defense of volenti non fit injuri, in that there is no evidence that appellant knew and appreciated the nature or extent of the danger. See J. & W. Corporation v. Ball, 414 S.W.2d 143 (Tex.Sup.1967). He further urges that these findings do not support the defense of contributory negligence, in that there is no finding of negligence nor any evidence to support such an implied finding by the trial court. Appellee contends that an implied finding of negligence under Rule 279, T.R.C.P., is fully supported by the record.

Under the provisions of Rule 279, supra, where some but not all of a cluster of issues necessary to sustain an independent ground of recovery or defense are given and answered by the jury without objection or request, the trial court may make written findings on omitted issues raised by the evidence. If no written findings are made, the omitted issues are deemed to have been found by the court in such manner as to support the judgment. Strauss v. LaMark, 366 S.W.2d 555 (Tex.Sup.1963); Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); Dooley, “The Use of Special Issues under the New State and Federal Rules,” 20 Tex.Law Rev. 32, 40.

This record, when viewed under the “no evidence” test, as required in determining whether appellant’s motion to disregard these findings and for judgment non obstante veredicto was properly overruled, fully supports an implied finding by the trial court that appellant’s voluntary act in placing himself in a hazardous position was negligence.

The accident was brought about by an unusual situation. Appellee, a soldier home on leave, attempted to locate a girl friend about 10:30 p.m. He had visited the girl on one previous occasion and believed that she could be found at 614 Patton Blvd. No one responded to his knock on the front door at 614 Patton, but appellant’s wife heard the noise from their next-door house at 616 Patton. Appellant went outside his house and discovered appellee. Appellant suspected appellee of being a burglar, in that appellant’s home had been broken into two or three weeks previously, and he requested appellee to remain until the police arrived. Appellee informed appellant that he was at Camp Polk when the prior incident occurred, that he was home on leave and wanted no trouble with the police, appellant or anyone else. Appellee then proceeded to his car, which had been left parked across the street, with appellant following him.

Appellee testified that appellant was hitting him on the head while he was trying to start the car. Just before appel-lee’s car started moving appellant was standing near the left front door. The record is not clear how the accident occurred, but after the car started appellant was dragged some 200 feet before the car struck a tree and overturned. Appellee testified that appellant was hitting him with one hand, but was not sure if the other hand was holding the steering wheel. Neither appel-lee, appellant nor appellant’s wife was able to recount how the car dragged appellant. This record supports an implied finding that appellant was negligent in standing too close to this car, knowing that appellee was preparing to drive off.

There was no request for written findings of fact by the trial court, although the. question of contributory negligence was raised in appellee’s reply to appellant’s motion to disregard these issues. Appellant did not object to the court’s failure to submit an issue on negligence or request such an issue. By overruling appellant’s motion to disregard Questions Nos. 6 and 7 and entering the take-nothing judgment, the trial court is presumed to have found that such voluntary act constituted negligence. Rule 279, supra. Such an implied finding is fully supported by this record.

The judgment is affirmed.

      . Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Appellate Procedure in Texas, § 8.4(2).


author: OSBORNE, Judge.

text:
    Carl CABE, Commissioner of Labor, Commonwealth of Kentucky, Custodian of the Special Fund, Appellant, v. Tom SKEENS, Eastern Coal Corporation, and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Oct. 6, 1967.
    Rehearing Denied Feb. 9, 1968.
    Martin Glazer, Thomas R. Emerson, Department of Labor, Frankfort, for appellant.
    Friend & Mullins, Pikeville, for Workmen’s Compensation Bd. and Tom Skeens. William Baird and Edward Hays, of Baird & Hays, Pikeville, for Eastern Coal Corp.
   OSBORNE, Judge.

The appellee, Tom Skeens, filed three applications for compensation benefits with the Workmen’s Compensation Board. From the record it appears that on November 10, 1964, he injured his right ankle while working in a mine of the Eastern Coal Corporation. He was off work until February 8, 1965, at which time he returned and worked until July 26, 1965, when he injured his left ankle and foot. From this injury he was off until October 11, 1965, at which time he returned and worked until November 1, 1965, when he was forced to quit permanently because of silicosis.

It is undisputed that appellee has suffered a period of temporary total disability for each ankle and that he now has some permanent partial disability in each ankle resulting from these injuries. It is further undisputed that he is now totally and permanently disabled from silicosis, which disability is compensable as an occupational disease. All three claims were consolidated for hearing by the Workmen’s Compensation Board. Following the hearing findings were entered and an award granted. Appellee was awarded total permanent disability to be paid as follows: 10% partial permanent for 400 weeks, starting with the date of the particular injury for each of the ankles to be assessed against the employer; 80% partial permanent for 400 weeks against the special fund, with an additional period of 100% total permanent for 25 weeks. This award was appealed to the circuit court and there modified to the extent that 4% of the permanent partial disability to each of the ankles was adjudged to be preexisting and awarded against the special fund and 6% against the employer making a total award against the employer of 12%. The court increased the award against the special fund for silicosis from 80% to 100% making a total award against the Fund of 108%.

Two questions are raised upon this appeal. One, where the employee suffers an injury following which he returns to work and suffers a subsequent injury or occupational disease which amounts to total permanent disability, can maximum recovery be had for both injuries where the payment periods overlap ? Two, was there sufficient competent evidence before the Board to justify the award of 10% for each of the ankles against the employer without apportionment to the special fund?

The first question is one of first impression in this state and presents a nexus between two conflicting lines of cases. One is that no disability arising out of one occurrence or arising at the same date can be compensable at a rate higher than that set for total permanent disability. This rule is set out in Osborne Mining Corp. v. Blackburn, Ky., 397 S.W.2d 144. The rule is there stated to be, at 145: “It is conceivable that a claimant may have a combination of injuries or any injury and occupational disease, any one of which would entitle him to maximum benefits, but no injury or occupational disease or combination thereof simultaneously causing disability will entitle him to more than the maximum benefits under KRS 342.095, because he has just the one total and permanent disability resulting.” The second is the whole man theory. This is set out in Inland Steel Company v. Mosby, Ky., 375 S.W.2d 268, and International Harvester Co. v. Poff, Ky., 331 S.W.2d 712. This rule is where a man has had a compensable disability, received his compensation and returned to work and then receives a subsequent independent injury which incapacitates him, the prior injury should not be deducted. See Larson’s Workmen’s Compensation Law, Vol. 2, § 59.42, p. 67.

The employee argues that he returned to work as a whole man after each of the injuries and therefore these amounts should be given in addition to the total recovery for silicosis. Though this would undoubtedly be true if the compensation period had run out before the subsequent occupational disease, under the aforementioned whole man doctrine, to so hold in this situation would violate the spirit of the statute. Larson’s Workmen’s Compensation Law, Vol. 2, § 59.41, p. 65, says: “There is a sound and practical reason for the generally-accepted rule that awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than the weekly maxima for total disability. A man can be no more than totally disabled, and if he is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it will probably become more profitable for him to be disabled than to be well * * This general rule was stated under different facts in Dunn v. Eaton, 233 Ky. 699, 26 S.W.2d 513, 514, “However, payments for separate injuries cannot be added together and made to run concurrently, where the weekly payments will exceed the highest payment allowed under the statute.”

On the second question we are of the opinion that there was sufficient evidence in the record to support the finding of the Board that the disability resulting from arthritis in the ankles was not a material factor. Dr. Frank T. Varney, who was introduced by the employee, testified that in his opinion the preexisting arthritic condition could have played a part in his recovery from the injury. He also testified that the arthritic condition was very mild and even though later on he attributed 40% of the disability to the arthritic condition we feel that on the basis of his total statements the Board was justified in finding that this was a normal degenerative condition and awarding the total amount against the employer.

For these reasons, the award of the Compensation Board should be affirmed.

The judgment is reversed.

All concur.

      . This case, however, involved several injuries suffered concurrently.


author: OSBORNE, Judge. MONTGOMERY, Judge

text:
    Hubert JOHNSON, Appellant, v. ELKHORN & JELLICO COAL COMPANY, Inc., Underwriters Safety & Claims, Inc. and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1967.
    Rehearing Denied Feb. 9, 1968.

      C. W. Napier, Jr., Hazard, for appellant.
    Richard D. Cooper, Reeves, Barret, Cooper & Ward, Hazard, for appellees.
   OSBORNE, Judge.

Hubert Johnson was employed by the Elkhorn and Jellico Coal Company. On April 26, 1965, he was working as brakeman on a mine tram. He was attempting to couple some cars when the motorman started to reverse. His right hand was caught between two cars. As a result, one finger was pulled out and the rest of his hand mangled. Before the hand had healed he apparently developed gangrene and more fingers had to be amputated. He now has his thumb and part of another finger left. The application for adjustment in this case was filed March 10, 1966, seeking compensation for the injured hand. Subsequently, an amended claim was filed claiming a ruptured cervical disc and a traumatic neurosis.

The Board completely rejected all of the claims for injuries beyond the hand and under KRS 342.105 limited his award to that provided therein for a severed hand. Johnson appealed to the Letcher Circuit Court, which affirmed the Board’s award. He then brought this appeal.

The question presented is whether the Board’s finding is “clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record * * *.” KRS 342.285(3) (d) as amended in 1964.

Six doctors testified in this case, two for the appellant, one for the appellee, and three for the appellant on rebuttal. Four of these doctors testified to the existence of an injury to the cervical spine. One of these testified to a traumatic neurosis.

The Board based its decision on the testimony of the other two doctors, Dr. Marion G. Brown, who testified for the appellant apparently before the amended complaint was filed, and Dr. Kearns Thompson, who testified for the appellee. The testimony of these two doctors is essentially negative in character on the existence of a back injury. Dr. Brown, an orthopedic surgeon, testified that the appellant complained of pains in his shoulder and back. However, he testifies that he did not x-ray the spine because “it is not unusual to have muscular pains in adjacent areas.” He testified that “medically speaking, the injury event is confined to an extremity.” However, in view of his failure to x-ray or to closely examine the cervical spine, this testimony does not support the finding of no injury to it. Testimony of non-examination is not equivalent to testimony of non-injury.

Dr. Thompson, also an orthopedic surgeon, apparently limited any intensive examination to the right hand and took no x-rays of the cervical spine. On the basis of some superficial examination of the body beyond the hand, he answered that there was no evidence of any injury beyond the hand. This testimony does not preclude or even speak strongly to the existence or non-existence of any injury to the spine.

This is the only evidence supporting the Board’s finding and the Board specifically based their finding of no injury beyond the hand on this testimony.

Four other doctors testified. All x-rayed the cervical spine. All found evidence of •injury — a narrowing between the fifth and sixth cervical vertebrae, which was attributed to a cervical sprain or ruptured disc. All testified that this occurred when appellant was struggling to free his trapped hand. And, all testified that it increased the disability suffered by the appellant.

Therefore, the Board’s finding- that appellant suffered no injury beyond the hand is “clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record * * KRS 342.285(3) (d).

The evidence before the Board supports only one conclusion — that Hubert Johnson suffered an injury to his cervical spine in the accident in addition to the injury to the hand and that this injury increases the disability suffered by him. There is ample testimony that he is totally disabled. Therefore, the provisions of KRS 342.105 and 342.110 do not apply. Evidence shows that this man is totally disabled at this time from the combined effects of the injury to the hand and back and the traumatic neurosis he is apparently suffering from. However, there is testimony that the back may respond to an operation and, of course, the neurosis may become better with psychiatric care and the improvement of the other situation. Therefore, on remand the Board should take evidence as to the permanence of these disabilities. If it appears that they will not be permanent, the Board should make an award for temporary total disability for the period of likely duration. Of course, in the event of a change in conditions the parties will have resort to the reopening provision of KRS 342.125(1). Holland v. Childers Coal Co., Ky., 384 S.W.2d 293.

The judgment is reversed.

WILLIAMS, C. J., and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur.

MONTGOMERY, Judge

(dissenting).

The majority opinion reverses a judgment which affirmed the award of the Workmen’s Compensation Board. In reviewing such a case this court is governed by KRS 342.290. The scope of review shall include all matters subject to review by the circuit court. The review here and in the circuit court is confined to determining whether the award of the Board “is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record.” KRS 342.285(3) (d). Belknap Hardware & Manufacturing Co. v. Brown, Ky., 402 S.W.2d 848.

In Porter v. Goad, Ky., 404 S.W.2d 795, it was said:

“The reviewing court would not set aside' the finding of the board unless the evidence in support of the claim was so clear-cut and convincing that the court justifiably could conclude that the board acted ‘erroneously’ (i. e., unreasonably) in finding against the claim.”

Dr. Kearns R. Thompson testified that there was no evidence of any injury beyond that part of the hand that was amputated as a result of the accident in question. Dr. Marion Brown testified for the appellant as follows:

“Q. 19. Do the effects of the injury and disability extend beyond the member, or beyond the hand and the arm to the body as a whole, so as to adversely affect his general ability to labor and limit his occupational opportunities to obtain the kind of work he is customarily able to do?
“A. Medically speaking, the injury event is confined to an extremity * *

On cross-examination he testified:

“Q. 3. As I understand your testimony, Dr. Brown, from a medical standpoint his injury is limited to the hand and the severance of the fingers that you have named, either by amputation at the time of the injury or by subsequent amputation, plus the remaining injury to that part of the hand that you have described and the injury to the remaining thumb and third finger?
“A. Yes, sir, that is correct.
“Q. 4. Is it your opinion, Dr. Brown, that his primary inability to return to coal mining is principally attributable to the injuries that were set out in the foregoing question?
“A. Yes, sir.”

The Board found that the injury suffered was confined to the severance of the right hand and did not extend beyond that extremity and that appellant had failed to prove by clear and convincing evidence that he had sustained any other injury as a result of the traumatic injury, either mental or physical, beyond the hand extremity.

The majority opinion discredits the testimony of Drs. Thompson and Brown because they had not examined appellant’s back. All of the testimony was before the Board and it chose to believe the testimony of Drs. Thompson and Brown, as was its prerogative. Such testimony sustains the findings of the Board as was adjudged by the circuit court. I feel that this court has gone beyond the scope of its review in the majority opinion.

I,therefore, respectfully dissent.


author: CLAY, Commissioner.

text:
    VALLEY STONE COMPANY, Inc., Appellant, v. Woodrow BINION and Eva Binion, his wife, Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1967.
    Rehearing Denied Feb. 9, 1968.
    O. F. Duval, Olive Hill, Ralph N. Walter, West Liberty, for appellant.

      John A. Keck, Grayson, W. H. Counts, Olive Hill, for appellees.
   CLAY, Commissioner.

Appellees recovered a judgment of $5,000 against appellant for damages allegedly caused two buildings on their property by the blasting operations of appellant.

Appellant’s principal contention on appeal is that it was entitled to a directed verdict because appellees failed to prove negligence and causation. Since injury caused by blasting operations is in the nature of a trespass or a nuisance, negligence need not be pleaded or proved. Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755; Juett v. Calhoun, Ky., 405 S.W.2d 946.

There was ample proof that during the summer of 1964 appellant’s blasting operations broke windows, caused plaster to fall, and a partition to pull loose in one of the buildings. In addition, there was evidence the concréte block walls of both structures were cracked and there was expert testimony that these cracks appeared to have been caused by some outside force. In the light of appellees’ evidence, a jury issue was presented as to whether the blasting operations caused the structural damage to appellees’ buildings and appellant was not entitled to a directed verdict on the issue of liability.

Appellant contends that since one of the appellees testified to a particularly heavy blast on June 12, 1964, appellees should not have been permitted to prove injury caused by other blasting operations during that summer. We find no merit in this argument.

Appellees established that the principal damage to their buildings could not be repaired. They thereupon undertook to prove the difference in the fair market value of their property before and after the blasting operations in 1964. Appellant contends it was entitled to a directed verdict because appellees’ witnesses on the issue of damages were not qualified. It is questionable that appellant’s objections properly raised the issue of qualification. Assuming they did, we believe appellees’ three witnesses showed sufficient familiarity with property values in the community, and with appellees’ property, to give market value opinions.

The witnesses were property owners and were generally familiar with the sales in the community. All of them had bought property there and two had sold property. They expressed a knowledge of property values in the neighborhood. While their qualifications were not the best, their opinions were competent.

The judgment is affirmed.

WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur.

OSBORNE, J., not sitting.


author: STEINFELD, Judge.

text:
    John ROBERTS, as Administrator of the Estate of William Roberts, Appellant, v. Hobart DAVIS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    As Modified on Denial of Rehearing Jan. 26, 1968.

      Frank A. Wichmann, II, Charles H. Deters, Covington, for appellant.
    John Lane Ackman, Williamstown, Asa Rouse, Walton, Frank S. Conneley, John G. Wright, Warsaw, for appellees.
   STEINFELD, Judge.

Appellant, John Roberts, administrator of the estate of William Roberts sued Hobart Davis, Goldie Davis and Lowell Davis to recover damages for the wrongful death of William Roberts. Plaintiff and defendants moved for summary judgment. The motion of plaintiff was overruled but the motion of the defendants was sustained and the complaint was dismissed. This appeal is from that judgment. We reverse.

Hobart and Goldie Davis are the parents of Lowell Davis who was 21 years of age and fully emancipated. He and his wife lived in a trailer on the farm of his parents where his occupation was principally share cropping tobacco. On occasions Lowell’s father would give him money, but this money was neither a fixed amount nor was it given at any regular intervals. Lowell drove his father to work for which he was compensated.

On August 2, 1964, Hobart purchased 1,000 bales of hay from neighbors, Mrs. Virgie Beech and her brother, George Skir-ven. The affidavits of Goldie and Hobart state that Hobart asked his son Lowell to haul the hay from the Beech farm to that of his parents for which they agreed to pay Lowell $25.00. There is some conflict in the record as to the accuracy of this statement.

To move the hay Lowell was permitted to use his father’s 1955 Ford “pick up” truck on which the only special equipment was a frame that extended out from the bed so that additional bales could be carried. Lowell’s two younger brothers helped with the loading and hauling. William Roberts, a normal person of 17 years of age, who previously had helped Lowell haul tobacco, was engaged by Lowell to assist. Clem Roberts, a younger brother of William, also helped.

For four days the truck }yas loaded with hay and made numerous trips from the Beech farm to the Davis place with Lowell driving and William lying on his stomach on top of the hay. Finally the last 25 or 30 bales were loaded onto the truck. As he had before, Lowell mounted the bed of the truck and the other boys, including William, passed the hay up to him. Lowell arranged the bales and secured them with ropes. When the loading was completed Lowell took the driver’s position and his two brothers entered the cab with him. William climbed on top of the hay as he had done previously. The record is not clear as to what Clem did. The truck left the Beech farm and proceeded along a straight paved road at approximately 20 miles per hour. After it had traveled about 1/2 mile Lowell heard some bales fall from the truck. He stopped immediately, saw that approximately ½ of the bales had fallen and that William had fallen with them. William sustained the injuries from which he subsequently died. There were no known witnesses to the accident. William’s position immediately before the hay fell is unknown.

The Administrator says Lowell was negligent as a matter of law in operating the truck with William on top and that the evidence will show, if he is permitted to introduce it, that Lowell was negligent in stacking the hay and tying the ropes which held it.

He asserts that William was riding as a gratuitous licensee and that Lowell owed William the duty to refrain from willfully or wantonly causing him injury. He cites Kentucky and West Virginia Power Company v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 170 A.L.R. 1 (1942); Scuddy Coal Company, Inc. v. Couch, Ky., 274 S.W.2d 388 (1955) and Whalen v. Van Natta, Ky., 382 S.W.2d 205 (1964).

Appellant contends that the trial court erroneously sustained the motion for summary judgment made by the appellees, when it should have overruled that motion and granted to the appellant summary judgment, after which it should have directed the jury to assess the damages.

The appellees say that there was no evidence to indicate that Lowell misused the truck, since the proof revealed that this was the customary way the appellees had transported hay for the past several years. They contend that “the real test of negligence, as it applies to the use of instru-mentalities, methods and so on, is the ordinary usage and custom of mankind.” Ellis v. L. & N. R. R. Co., Ky., 251 S.W.2d 577 (1952). We hold that whether Lowell exercised the proper degree of care in using the truck is a question of fact for the jury.

Appellees stress the point that there was no denial that the road was straight, the truck was traveling at a reasonable speed and that the hay was tied when it left the farm. They say that these undisputed facts can lead only to the one inference, that Lowell was not negligent as a matter of law and that any other conclusion would have to be based upon mere speculation. Klingenfus v. Dunaway, Ky., 402 S.W.2d 844 (1966). They contend- that their motion for summary judgment was properly sustained. CR 56.03. Local Indus. Finance Co. v. McDougale, Ky., 404 S.W.2d 789 (1966); American Insurance Co. v. Horton, Ky., 401 S.W.2d 758 (1966). The falling of the hay in the absence of an explanation as to what caused it to fall created a rebuttable inference of negligence. In Illinois Central Railroad Co. v. Frick, 256 Ky. 317, 76 S.W.2d 13 (1934) the plaintiff was struck by a lump of coal which fell from the train.

“Negligence may be inferred from circumstantial evidence of an accident, which, in the usual and ordinary course of things, would not happen with proper care, and in such cases the burden is cast on defendant to explain the accident or show freedom from negligence * * * [Njegligence will not be presumed, but must be proved as any other fact, yet it may be proved by circumstantial evidence or by showing facts from which negligence will be inferable, and all facts must be considered.”

In Batts v. Joseph Newman, Inc., et al., 3 N.J. 503, 71 A.2d 121 (1950) a tank fell from a truck injuring Batts. Newman contended that the trial court committed error by refusing to grant its motions for non-suit and directed verdict. It argued that there was no negligence on its part. The court stated:

“The fact the tank fell into the street is eloquent evidence and, together with other proven facts, indicates it was not securely attached to the truck and that adequate precautions were not taken to prevent such an occurrence. There being evidence from which the negligence of [appellant] might reasonably be inferred, a jury question was presented and the motions for non-suit and for a directed verdict on this ground were properly denied.”

George Skirven deposed that when he was at the farm the bales were tied down “real good”. They did not fall. A reasonable inference could be drawn that the load on which William was riding was improperly tied, or it would not have fallen. This was a question for the jury.

The administrator insists that William was not negligent in riding upon the hay. Appellees take the opposite view because he was warned that it was dangerous to ride that way. They cite Wright v. O’Neal, Ky., 320 S.W.2d 606 (1959) in which the employee violated the instructions of his employer. On the occasion of his death, William was permitted by his employer to ride on top of the load. Both Lowell and William knew that William had been warned of the danger of doing so.

William, a 17 year old boy of average intelligence, was doing farm work that he had done on other occasions. The record shows that many times William rode on top of a load of hay while carrying out his job of assisting in loading, unloading and hauling hay. The proper test for determining if the deceased was contributorily negligent is whether he exercised that degree of care usually exercised by ordinarily prudent minors of the same age, intelligence and experience. Wilkerson v. Sanderson, 233 Ky. 493, 26 S.W.2d 1 (1930); Lorry v. Englander, Drayage and Warehouse Co., 108 Cal.App. 116, 291 P. 467 (1930); Blaser v. Coleman, Mo., 213 S.W.2d 420 (1948); Hathaway v. Evans, Mo., 235 S.W.2d 407 (1950); Dach v. General Casualty Co., 241 Wis. 34, 4 N.W.2d 170 (1942). The warning not to ride on top of the truck does not make William con-tributorily negligent as a matter of law, but is only one of the factors for the jury to consider.

There is little, if any, conflicting evidence.

“That the evidence is not in conflict does not, of course, preclude the existence of issues as to material facts.” Adkins v. Greyhound Corp., et al., Ky., 357 S.W.2d 860 (1962).

Undisputed facts will not support a summary judgment if contrary inferences may be drawn therefrom. Reliable Volkswagen Sales & Service Co. v. World Wide Auto Corp., N.Y., 34 F.R.D. 134 (1963).

A summary judgment is authorized only when there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. CR 56.03. The moving party has the initial burden of showing that no genuine issue of a material fact exists, then the other party must refute the contentions of the moving party. If the moving party does not sustain his burden, or if the opposing party is successful in rebutting, then the summary judgment should not be granted. Robert Simmons Construction Company v. Powers Regulator Company, Ky., 390 S.W.2d 901 (1965); Conley v. Hall, Ky., 395 S.W.2d 575 (1965) and Spencer, et al. v. Leone, et al., Ky., 420 S.W.2d 685 (decided September 22, 1967). Here we have issues of material facts and neither party was entitled to a summary judgment.

The administrator argues that if William was negligent this is not a bar to the claim because of the doctrine of last clear chance. This doctrine is not applicable to the facts in this case. Carter v. Snyder, et al., Ky., 329 S.W.2d 382 (1959), 81 A.L.R.2d 452.

Roberts also asserts that the doctrine of assumed risk, upon which appellees rely, is not a defense available to them because of their failure to plead it affirmatively as required by CR 8.03 and CR 12.08. The concept of assumed risk as distinguished from contributory negligence was abolished in Parker v. Redden, Ky., 421 S.W.2d 586 (decided June 23, 1967). Hence an unreasonable assumption of a known risk is included in the defensé of contributory negligence.

All parties argue vigorously as to whether the record shows that Lowell was the servant of Goldie and Hobart Davis thereby creating upon them the same liability, if any, which is imposed on Lowell. They cite Mahan v. Litton, Ky., 321 S.W.2d 243 (1959) and Smith v. Gennett, Ky., 385 S.W.2d 957 (1965). Since this case is reversed for another trial the facts concerning the employment and the relationship should be fully developed so that a proper adjudication may be made on this issue by the court, or the jury, under the law. Coleman v. Baker, Ky., 382 S.W.2d 843 (1964) ; 56 C.J.S. Master and Servant § 13, p. 92.

The judgment is reversed.

All concur.


author: DAVIS, Commissioner.

text:
    KENTUCKY BOARD OF TAX APPEALS et al., Appellants, v. ESTATE of W. D. PORTER, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.
    Robert Matthews, Atty. Gen., William S. Riley, Dept, of Revenue, Frankfort, for appellants.
    Amos H. Eblen, Lexington, for appellee.
   DAVIS, Commissioner.

This is an appeal from a judgment reversing that portion of an order of the Kentucky Tax Commission imposing an inheritance tax on proceeds of life insurance held in trust subject to a power of appointment. The factual background and legal principles are indistinguishable from those presented in Kentucky Trust Company, Executor, Etc. v. Department of Revenue, Commonwealth of Kentucky, Ky., 421 S.W.2d 854 (decided December 15, 1967).

The trial court correctly adjudged that the life insurance proceeds which passed into sub-trust A were exempt from inheritance tax by reason of KRS 140.030(2). We are unable to discern any distinction in the facts of the case at bar from those present in Kentucky Trust Company, Executor, Etc. v. Department of Revenue, Commonwealth of Kentucky, just cited. Upon the authority of that decision, the judgment of the trial court must be affirmed.

The judgment is affirmed.

All concur.


author: CALVERT, Chief Justice.

text:
    N. H. READ v. B. M. BRITAIN et al.
    No. B-298.
    Supreme Court of Texas.
    Dec. 13, 1967.
    Rehearing Denied Feb. 7, 1968.
    E. H. Foster, Lon Moser, Kolander & Templeton, Robert L. Templeton, Amarillo, for petitioner.
    Culton, Morgan, Britain & White, L. A. White and Raymond W. Richards, Amarillo, for defendants.
   CALVERT, Chief Justice.

The primary problem in this case concerns the proper interpretation of paragraphs (b), (c) and (d) of the royalty provisions of an oil and casinghead gas lease. N. H. Read, the lessor, was plaintiff in the trial court, and B. M. Britain and David Kritser, the lessees, were defendants.

The defendants are producing both oil and casinghead gas from the leased premises. Section 3 of the lease contains the provisions governing payment of royalties. Paragraph (a) of the section provides for the royalty to be paid on oil. There is no dispute between the parties concerning the obligation imposed by that paragraph and no claim by the plaintiff that any royalty due thereunder has not been paid. Paragraphs (b), (c) and (d) provide for the royalty to be paid on casinghead gas. They read as follows:

“(b) Except where casinghead gas is processed or used as provided for in sub-paragraph (c) below, Lessee agrees and convenants that before any gas containing liquid hydrocarbons recoverable in commercial quantities, produced on the land, is sold or used, it shall be run through an adequate separator of conventional type, or other equipment at least as efficient, and that all liquid hydrocarbons recoverable from the gas by such means shall be recovered. As a royalty, Lessee shall pay, or cause to be paid, during the term hereof, three-sixteenths (¾«) of the value of such liquid hydrocarbons actually recovered, or an equivalent fraction of that amount which accrues to the Lessee, whichever is the greater.
“(c) The Lessee shall pay, or cause to be paid, during the term hereof, as royalty on casinghead gas sold or used for the manufacture of motor fuel, natural gasoline, butane, propane, and/or other liquid hydrocarbon products, or for the manufacture of sulphur and/or any other solid or non-liquid products (hereinafter referred to in this subparagraph as ‘products’), whether such be by casinghead gas plant, or fractionating, absorption, or any other process except as set out in subparagraph (b) above (1) three-sixteenths (¾6) of thirty-three and one-third per cent (33½%) of the value of the aforesaid products of said gas actually recovered at the plant, or (2) three-sixteenths (%e) of the value of the same which accrues to the Lessee, or (3) three-sixteenths (¾6) of the total consideration which accrues to the Lessee, whether directly or indirectly, whichever is the greatest.
* * * * Jjc *
“(d) In addition to any royalties provided for in paragraphs above the Lessee shall pay, or cause to be paid, during the term hereof, as a royalty on residue gas sold or used for any purpose, except when used as hereinafter provided, three-sixteenths (¾6) of the value of such gas sold or used, but in no event shall the royalty be based on an amount less than the gross proceeds of the sale thereof, or the highest price paid for residue gas in the area, or that amount which accrues to the producer or processor, whichever is the greatest, and in no event shall this value be computed at less than seven (7‡) cents per thousand cubic feet.”

The only gas produced by defendants is casinghead gas. Casinghead gas is gas produced from an oil well simultaneously with the production of oil. In their operation of the lease, defendants installed a separator on the premises to remove oil from the gas stream, and, by written contract, sold all gas to be produced during an ensuing five-year period, from which the oil had been removed by separator, to Dorchester Gas Producing Company at a basic price of ten cents per thousand cubic feet. Dorchester owns and operates a plant, located some ten miles distant from the lease, for extracting various valuable liquid hydrocarbons such as propane and butane from gas. These extracted hydrocarbons are salable and have a market value. The residue of the gas, after extraction of the hydrocarbons, is also salable and has a market value.

Dorchester purchased the defendants’ gas with the intention of processing it in its plant to extract the liquid hydrocarbons, and of selling both the extracted hydrocarbons and the residue. This it has done. However, there is no provision in the contract between the defendants and Dorchester which requires Dorchester to process the gas or which prohibits it from reselling it without processing, and no provision therein for payment to the defendants of any part of the proceeds derived by Dorchester from sale of the hydrocarbons or the residue of the gas.

In his petition, Read asked the trial court to construe the lease as imposing an obligation on the defendants to pay royalties under paragraphs (c) and (d), and for judgment for royalties due, but unpaid, under those paragraphs; alternatively, for judgment for any royalties due, but unpaid, under paragraphs (b) and (d); and finally, for the appointment of a master to determine the amount of unpaid royalties. The defendants answered that their obligation to pay royalties was controlled by paragraphs (b) and (d) and that they had paid all royalties due under those paragraphs.

The defendants filed a motion for summary judgment by which they sought a judgment that the plaintiff take nothing. As a basis for that judgment, they asked the court to declare that they were not obligated to pay royalties under paragraph (c) but only under paragraphs (b) and (d), and that they had paid all royalties due under those paragraphs. The trial court granted the motion to the extent of declaring that defendants were not obligated to pay royalties under paragraph (c), but reserved the matter of the amount of royalties payable under paragraphs (b) and (d) for trial as a fact issue. After trial to a jury of this latter issue, the court rendered judgment, notwithstanding the verdict, that the plaintiff take nothing. The court of civil appeals agreed that defendants were not obligated to pay royalties under paragraph (c), held that the provisions of paragraph (d) were inapplicable, and affirmed the take-nothing judgment. 414 S.W.2d 483. The opinion of the court of civil appeals gives a more detailed statement of the factual background of the controversy which we have simplified to some extent. We affirm the judgment of the court of civil appeals.

In interpreting the royalty provisions of the lease as applied to defendants’ operations, the trial court was of the opinion that a sale of the gas after the oil content had been removed by the separator was a sale of “residue gas” as that term is used in paragraph (d), and that the provisions of paragraph (d) obligated the defendants to pay to the plaintiff three-sixteenths (¾6) of the gross proceeds of the sale thereof, or of the highest price paid therefor in the area, or of the amount which accrued to the defendants, whichever was the greatest. It was undisputed that defendants had paid to plaintiff three-sixteenths (%e) of the proceeds of the sale of the gas to Dorchester which was the amount that accrued to defendants; and so, the court submitted a special issue to the jury by which it was directed to find from a preponderance of the evidence “the highest price paid for residue gas in the area on January 1, 1964.” The jury’s answer was thirteen cents per thousand cubic feet. The defendants filed a motion for judgment notwithstanding the verdict on several grounds, one of which was that there was no evidence to support the jury’s answer. As heretofore noted, the trial court granted the motion.

On appeal to the court of civil appeals, the plaintiff urged, as he had in the trial court, that he was entitled to royalty under the provisions of paragraph (c) inasmuch as the gas had been “sold or used for the manufacture of motor fuel, natural gasoline, butane, propane, and/or other liquid hydrocarbon products.” He also continued to urge, as he had in the trial court, that in addition to royalty under paragraph (c), he was entitled to royalty on the “residue” gas sold by Dorchester as provided in paragraph (d). It was, and is, the position of plaintiff that paragraph (d) cannot be applicable in determining the royalty payable on gas sold after being run through the separator because gas is “residue gas” only after the extraction or removal of the liquid and solid hydrocarbons as provided in paragraph (c). The court of civil appeals agreed with this latter contention of the plaintiff and to this extent disagreed with the trial court’s interpretation of the lease. However, the court of civil appeals held that the gas was not “sold or used” by the defendants “for the manufacture” of hydrocarbon products within the meaning of paragraph (c), and that defendants’ obligation to pay royalty was’ imposed by paragraph (b) at three-sixteenths (%e) of the proceeds of the sale of the gas to Dorchester. Having so held, the court of civil appeals held further that the provision of paragraph (d) for paying royalty on “the highest price paid for residue gas in the area” never came into play and was immaterial.

When we granted writ of error in this case, we were of the tentative opinion that we could authoritatively resolve the disagreement between the court of civil appeals and the trial court as to the applicability of the provisions of paragraph (d) to the defendants’ operations in running the casinghead gas through a separator and selling it without limitation on the use or disposition to be made of the gas by the purchaser. From a further study of the record we now conclude that the point of disagreement has not been preserved for review.

While plaintiff opposed the defendants’ motion for judgment notwithstanding the jury’s verdict and moved for judgment on the verdict in his favor, he did not seek in the court of civil appeals, nor does he seek here, a reversal of the judgment of the trial court and a rendition of judgment in his favor for such an amount as he might be entitled to under the jury’s verdict. He seeks only a reversal and a remand for new trial so that he may recover royalties under both paragraph (c) and paragraph (d). He does not complain of the court of civil appeals’ holding that the royalty provisions of paragraph (d) applicable to “residue gas” come into play only when casing-head gas is sold or used for the manufacture of liquid and solid hydrocarbons as provided in paragraph (c), and is not in position to do so because that is the interpretation he sought and obtained. Although the defendants still contend that gas from which the oil content has been removed by a separator is also “residue gas” as that term is used in paragraph (d) and thus disagree with the court of civil appeals’ holding that the provisions of paragraph (d) are inapplicable to their operation, they do not by cross-point complain of the holding because they have a judgment denying the plaintiff any recovery. We are thus left with no alternative with respect to the point of disagreement except to state that the holding of the court of civil appeals as to the applicability of paragraph (d) to the defendants’ obligations to pay royalties in the future is not to be regarded as authoritative or controlling. The question is left open.

We agree with the holding of the court of civil appeals and the trial court that plaintiff is not entitled to recover royalties under paragraph (c). The reasons given by the court of civil appeals for the holding are adequate and sound and need no enlargement.

The judgment of the court of civil appeals is affirmed.


text:
    S. D. ENLOE et al. v. Mrs. Audry BARFIELD et vir.
    No. B-386.
    Supreme Court of Texas.
    Dec. 27, 1967.
    Rehearing Denied Jan. 31, 1968.

      Benckenstein & Norvell, Lipscomb Nor-vell, Jr., Beaumont, for petitioners.
    Zbranek & Friend, J. C. Zbranek, Liberty, Alvis S. Ellisor, Cleveland, for respondents.
   CALVERT, Chief Justice.

In this suit for damages for personal injuries to Mrs. Barfield growing out of. an automobile collision, the trial court disregarded answers of the jury to certain special issues and rendered judgment awarding plaintiffs, Mr. and Mrs. Barfield, a recovery of damages from the defendant, Gerald Enloe, a minor. The court of civil appeals reversed the judgment of the trial court because of the failure of the trial court to appoint a guardian ad litem for the minor defendant, and remanded the cause to the trial court for a new trial. 415 S.W.2d 721. The plaintiffs do not complain of the court of civil appeals’ judgment, but the defendant does. We reverse the judgments of both courts and here render judgment that the plaintiffs take nothing.

The collision occurred on Highway 59 in the city of Cleveland. At the place of collision, Highway 59 has six traffic lanes, divided by an esplanade, three for northbound and three for southbound traffic. At various points where the highway is intersected by through streets, there are turning lanes cut into the esplanade for use by motorists who wish to make left or U turns. The clear inference from the evidence is that when the turning lanes are properly used, the operator’s vehicle can be stopped before making a turn into the intersecting street, or before attempting a U turn, without protrusion of any part of the vehicle into the regular traffic lanes. The evidence reflects that there are also cuts or openings in the esplanade, through which automobiles can pass, at points where there are no intersecting through streets and no turning lanes. The collision in the instant case occurred in the nighttime at one of the latter type openings.

Mrs. Barfield was driving north on Highway 59 in the inside traffic lane, intending to make a U turn through the opening and into the outside lane of southbound traffic. As she started to enter the opening, she stopped her automobile when she saw five or six vehicles approaching in the southbound traffic lanes. The esplanade was not wide enough for her automobile to be stopped in the opening without the front protruding into the inside southbound traffic lane or the rear protruding into the inside northbound traffic lane. When she stopped her car, according to her testimony, “most of it was in the [northbound] lane next to the esplanade.” The automobile operated by the defendant Enloe, who was traveling north in the inside lane behind Mrs. Barfield, collided with the stopped car, thereby injuring Mrs. Bar-field.

The jury found that Enloe was negligent in operating his automobile at an excessive rate of speed, in failing to keep a proper lookout, and in failing to make a timely application of his brakes, and that each of such negligent acts or omissions was a proximate cause of the collision. The jury refused to find from a preponderance of the evidence that Mrs. Barfield failed to keep a proper lookout to the rear, failed to signal her intention to turn, suddenly stopped her automobile, and was making a U turn “at the time and on the occasion in question.” However, the jury found in answer to special issues 12 and 13 that the stopping by Mrs. Bar-field of her automobile in the opening in the esplanade was negligence and a proximate cause of the collision. On motion of the plaintiffs, the- trial court disregarded the answers to issues 12 and 13 and rendered judgment for damages as found by the jury.

We treat the plaintiffs’ motion to disregard the unfavorable jury findings as being based upon the absence of evidence of probative force to support the findings. However, the motion states that this is so when consideration is given to the answers of the jury to other special issues by which it failed or refused to find her negligent in other respects. The court of civil appeals, in overruling defendant’s points of error and affirming, seems also to have given some weight to the jury’s answers to other special issues. This manner of evaluating “no evidence” points is impermissible. C. & R. Transport, Inc. v. Campbell, Tex.Sup., 406 S.W.2d 191, at 194 (1966). Our problem then is whether, disregarding other jury findings, there is evidence of probative force in the record supporting the jury’s answers to issues 12 and 13. The court of civil appeals has held there is no evidence to support either finding. We disagree.

The jury’s answer to special issue 12 should not have been disregarded if the evidence will support a reasonable conclusion that a person of ordinary prudence, similarly situated, would not have stopped a car in the opening of the esplanade. As bearing on that question, the evidence establishes that Mrs. Barfield had known of the opening in the esplanade ever since the highway was built, had used it before and knew that a car could not be stopped in it without protruding into the inside traffic lane on one side or the other; she knew there were automobiles behind her using the northbound traffic lanes and oncoming automobiles on the other side of the esplanade using the southbound traffic lanes; and she also knew there was a turning lane a block ahead of her where she could stop before turning with safety to herself and to others using the northbound traffic lanes. Considering these undisputed facts, we are unable and unwilling to hold that there is no evidence to support the jury’s finding that a person of ordinary prudence would not have stopped a car in the opening in the esplanade in the nighttime. The jury could have concluded that Mrs. Bar-field, as a person of ordinary prudence, should not have stopped her automobile in the opening in the esplanade, but should have gone on one block further and entered the turning lane before stopping for the purpose of turning into the southbound traffic lanes. And if a person of ordinary prudence would not have stopped a car in the opening where Mrs. Barfield stopped, she owed a legal duty not to do so and was negligent when she breached the duty.

We are equally convinced that the evidence supports the jury’s finding that Mrs. Barfield’s negligence in stopping her car in the opening was a proximate cause of the collision. In this State, a finding of “proximate cause” cannot be sustained unless there is proof of cause in fact and foreseeability. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951). The court’s charge to the jury in this case defined the term “proximate cause” in customary language; it required a finding of both cause in fact and foreseeability.

That there is evidence supporting the finding of cause in fact is beyond cavil. The jury could find from the evidence, with reason, that the collision would not have occurred if Mrs. Barfield had not stopped her car in the opening with most of it protruding into the traffic lane. Moreover, the jury could find from the evidence, with reason, that a person of ordinary prudence exercising ordinary care should have reasonably anticipated and foreseen that the collision, or a similar one, would occur as a natural and probable consequence of her negligent act. Courts are authorized to set aside jury findings on questions of proximate cause because of the absence of evidence to support them only in exceptional cases. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982, at 983 (1941). This is not such a case.

The plaintiffs did not, as is authorized by Rule 324, Texas Rules of Civil Procedure, cross-assign as error in the court of civil appeals that the jury’s answers to special issues 12 and 13 were against the overwhelming preponderance of the evidence. It follows that the judgments of the court of civil appeals and the trial court must be reversed and, in the absence of any sound reason for remanding for a new trial in the interest of justice under Rule 505, Texas Rules of Procedure, that judgment be here rendered that plaintiffs take nothing.

It is so ordered.