author: MURRAY, Chief Justice.

text:
    Charles W. ROSSI, Appellant, v. Ray D. JOHNSON, Appellee.
    No. 13900.
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1962.

      Bryan Wingo, Corpus Christi, for appellant.
    Thompson & Thompson, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

The nature and result of this suit, as stated by appellant, are as follows:

Appellant, Charles W. Rossi, Corpus Christi, Nueces County, Texas, before and after September 21, 1959, was the owner of Lot 11, Block 15, Villa Gardens Subdivision, Corpus Christi, Nueces County, Texas; sometime anterior .to September 21, 1959, the appellee purchased a tract of land lying South and abutting the property owned by appellant; on or about the 21st day of September, 1959, appellee entered upon his premises, and in the process of clearing trees and undergrowth therefrom, and more specifically, along the rear property line of his property, ordered his employees to cut certain trees and brush along such property line; that the area to be cleared out by ap-pellee, through his employees, encompassed an area approximately seventy five feet in distance and approximately five feet in width over on appellant’s property, and ap-pellee, through his employees, entered upon appellant’s property, and cut down eleven trees three feet inside appellant’s property line, which trees were used for the purpose of a screening barrier between appellant’s property and the property South, of which appellee’s property was a part.

The hedge cut by appellee was used by appellant for screening his property from industrial property and -fárm lands immediately South; by appellee’s acts such screening was removed, and such removal created a diminution of the value of appellant’s property in the sum of $1200.00, which sum would be the difference in a reasonable market value of appellant’s property immediately before and immediately after the cutting' of said hedge.

Appellee counter answered appellant’s suit by filing a cross action, and asking for an injunction against appellant for certain trees or vines growing on and pushing against a fence erected by appellee, thereby pleading in. his action that such trees, because of their growth, were creating a nuisance and damages to his property.

The case was tried before a jury,' and three special issues were submitted to the jury; as a result of the jury’s findings on such special issues, appellant was found not to have been damaged by the cutting of his trees, and said jury found grounds for an injunction against appellant, from which verdict and judgment appellant has taken this appeal.

Appellant’s brief does not contain a single point of error, assignment of error, proposition of error, or anything that resembles the same. This was a trial before a jury and a motion for new trial was-filed, but there is no reference to any assignments made in the motion for a new trial. We are aware of the rule that where a motion for a new trial is filed it shall constitute the assignments of error on appeal. Rule 374, Texas Rules of Civil Procedure. This rule does not relieve the appellant of the burden of briefing his assignments, and to take advantage of his assignments of error he must brief them. Treme v. Thomas, Tex.Civ.App., 161 S.W.2d 124. Rule 418, T.R.C.P. requires that the brief contain the points upon which appellant is relying for reversal. If there are no points in the brief, there is nothing presented to the appellate court. Points are an indispensable part of every brief. Wagley v. Fambrough, Tex.Civ. App., 163 S.W.2d 1072, affirmed, 140 Tex. 577, 169 S.W.2d 478.

The appellant made no points in his brief, and therefore could not make a statement or argument under each point. He did make a general argument and that is all. In this one argument appellant, in numerous ways, complains about the findings of the jury which were against him and the failure of the court to render judgment in his favor for at least nominal damages. He also complains of the introduction of certain pictures in evidence.

Appellant’s brief amounts to a flagrant violation of the briefing rules as stated in Rule 418, supra. Under such circumstances, Rule 422, T.R.C.P., provides in effect that we may, in the interest of justice, give appellant further time for rebriefing. Appel-lee came to appellant’s aid and made several counter-points as to what he believes appellant had in mind.

We will now consider these counterpoints. Appellee’s first counter-point is to the effect that appellant waived his right to complain because he did not object to the charge of the court or request an instruction on nominal damage or an issue submitted on nominal damage.

Appellant alleged a trespass upon his lot and asked for actual damages in the sum of $1200.00, being the alleged difference in the market value of the lot immediately before and immediately after the trespass. He also asked punitive damages in the sum of $5,000.00, but did not ask for nominal damages. He did not except to the charge for failure to submit nominal damages, or request an issue on nominal damages, and thus he waived the matter of nominal damages. Lucas v. Morrison, Tex.Civ.App., 286 S.W.2d 190; Allbritton v. Mading’s Drug Stores, Inc., Tex.Civ.App., 138 S.W.2d 901; Mitchell v. Heard, Tex.Civ.App., 98 S.W.2d 832.

Where the question of nominal damages was not submitted to the jury, after verdict, if appellant wants judgment for nominal damages and his costs, he must by proper motion request such a judgment, and where he has not done so, on appeal he will not be heard to demand that the judgment be reversed and the cause remanded so that upon another trial he may be permitted to ask for nominal damages and court costs. De Garza v. Magnolia Petroleum Co., Tex. Civ.App., 107 S.W.2d 1078; Morin v. Houston Press Co., Tex.Civ.App., 103 S.W.2d 1087; Freeman v. Schwenker, Tex.Civ.App., 73 S.W.2d 609; Von Schoech v. Herald News Co., Tex.Civ.App., 237 S.W. 651; Major v. Hefley-Coleman Co., Tex. Civ.App., 164 S.W. 445.

Appellee’s counter-points numbered Two and Three relate to the court’s action in admitting in evidence certain photographs of the trees which were cut back by appellee. These photographs were admissible in evidence in support of appellee’s cross-action asking for an injunction against appellant, and the trial court did not err in admitting them.

Counter Point Four relates to the admission of the testimony of witnesses Caswell and Dickson as to the damage to appellant’s lot by cutting down the tamarish or salt cedar hedge. They both qualified as expert real estate brokers and there was no error in admitting their evidence.

Counter Point Five relates to the admission in evidence of the testimony of Dickson, Caswell and Allison. Allison stated his experience as Superintendent of the Sewer Division of the City of Corpus Christi, and the effect of roots from salt cedars on sewer lines. There was no error in admitting his testimony relating to whether salt cedar trees were a nuisance. Neither was there any error in admitting the testimony of Dickson and Caswell as to the salt cedar trees constituting a nuisance.

There is no error shown in the action of the trial court in granting appellee an injunction against appellant’s maintaining his tamarish or salt cedar hedge in such a manner as to injure appellee’s chain link fence which was located some fourteen inches from appellant’s property line.

We see no reason for allowing appellant additional time for re-briefing his cause under the provisions of Rule 422, T.R.C.P., because he flagrantly violated the rules of briefing as prescribed by Rule 418, T.R.C.P.

Accordingly the judgment of the trial -court is affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    ROYAL PALMS CORPORATION et al., Appellants, v. A. MINELLA PLUMBING SUPPLIES, INC. et al., Appellees.
    No. 13889.
    Court of Civil Appeals of Texas. Houston.
    March 8, 1962.

      Roy H. Bray, Houston, for appellant Royal Palms Corporation.
    Charles M. Leftwich, Houston, for appellant San Jacinto Title Company.
    Funderburk, Murray & Ramsey, John Murray, Houston, for appellee A. Minella Plumbing Supplies, Inc.
    Dow & Dow, Edmund L. Cogburn, Houston, for appellee Plumbing Supply Company.
   COLEMAN, Justice.

This is an appeal from a judgment'rendered'hy the court-sitting without a jury in favor of certain materialmen against a subcontractor on a construction, project, and the owner of the project, for the contract price of material furnished to the subcontractor. The judgment established mechanics’ and materialmen’s liens of the premises and decreed a foreclosure of the liens.

We are considering two suits which were consolidated by agreement. A. Minella Plumbing Supplies, Inc. sued Royal Palms Corporation, Truett Peachey, Big T. Building and Supply Company, Inc., Max I. Kamenzind and San Jacinto Title Company. Plumbing Supply Company sued Max Kamenzind, Royal Palms Corporation, Truett Peachey, Barbara Peachey and Peachey Realty Company, Inc. All defendants, except San Jacinto Title Company, answered by general denial. San Jacinto Title Company answered that it was a disinterested stakeholder of $8300.00; that A. Mi-nella Plumbing Supplies, Inc., Royal Palms Corporation, Truett Peachey, Big T. Building and Supply Company, Inc. and Max I. Kamenzind were asserting claims to the fund; that it could not safely determine to whom the money was due and tendered same into court praying that the named claimants be cited to appear and answer and that the court determine the owners of the fund; order its distribution and discharge San Jacinto Title Company from any liability. No further pleadings with reference to the fund tendered into court appear in the record.

Royal Palms Corporation and San Jacinto Title Company have appealed. San Jacinto Title Company complains that the judgment is too vague and indefinite to finally adjudicate the rights of all claimants to the fund which it tendered into court and, therefore, fails to give the company complete protection. The portion of the judgment concerned with the interpleader action reads as follows:.

* * and it also appearing to the Court that the Saw Jacinto Title Company-holding certain funds on behalf of the Defendant Royal Palms Corporation in the amount of $8,300.00 for the satisfaction of liens arising under the suh-contract with Peachey Construction Company and Big T. Building and Supply Company, Inc. aforementioned, has tendered such funds into the Registry of this Court, acting on behalf of the. defendant Royal Palms Corporation and that accordingly such funds should be applied toward the satisfaction of costs of court incurred herein and of the liens of Plaintiff A. Minella Plumbing Supplies, Inc. and Plumbing Supply Company as liens arising under such sub-contract; it is therefore ORDERED, ADJUDGED AND DECREED that such funds as tendered into the Registry of this Court be and they are hereby applied in satisfaction of the Mechanic’s and Materialman’s Liens set' out and established and foreclosed above and the San Jacinto Title Company is hereby ORDERED to pay said $8,300.00 into the Registry of this Court and the Clerk of this Court is hereby Ordered and Directed to pay the costs of court herein and then to pay to A. Minella Plumbing Supplies, Inc. the sum of $2,656.16 plus $195.01 interest with 6% interest on such sums from date hereof and to Plumbing Supply Company the sum of $1,034.72 plus $77.00 interest with 6% interest on such sums from date hereof and upon the payment of such sums to the said Plaintiffs in satisfaction of such liens as aforesaid such liens shall be in all things discharged as against the property hereinabove described and the balance then remaining to the Royal Palms Corporation herein determined to be entitled thereto, and upon the payment of said sum of $8,-300.00 into the Registry of this Court by the San Jacinto Title Company, it will thereby be discharged of any and all further liability with respect to said sum from claims arising out of the subject matter thereof.
“It is further ORDERED, ADJUDGED AND DECREED that Plaintiffs A. Minella Plumbing Supplies, Inc. and Plumbing Supply Company shall recover nothing from Defendants Truett Peachey, Barbara Peachey, Big T. Building and Supply Company, Inc. and Peachey Realty Company, Inc. and that said Defendants shall go hence without day with their costs, said Defendants having been granted an instructed verdict on motion at the close of the Plaintiffs’ cases.”

All parties named in the inter-pleader action, who answered in the principal suit, are properly before the court even though citations were not served in such action. Empire Gas & Fuel Co. v. Noble, Tex.Com.App., 36 S.W.2d 451; Sullivan v. Doyle, 108 Tex. 368, 194 S.W. 136. A judgment is not “final”, and appealable, unless it determines the rights of all parties and disposes of all issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890; Harris v. Superior Ins. Co., 322 S.W.2d 665, Tex.Civ.App. Unless the judgment from which this appeal is prosecuted disposed of all parties to, and issues raised by, the interpleader of San Jacinto Title Company, the judgment is not final and we have no jurisdiction of this appeal.

The quoted paragraph of the court’s judgment wherein it was decreed that Truett Peachey, Barbara Peachey, Peachey Realty Co., Inc., and Big T. Building and Supply Co., Inc., go hence without day with their costs, specifically refers to the main case and does not purport to adjudicate their rights with reference to the fund tendered into court.

It is contended that there was no final or express adjudication of the rights of all claimants to the fund by reason of the addition of the-phrase, ■“ * * from claims. arising out of the subject matter thereof”, to the previous words granting San Jacinto Title Company a discharge from possible liability growing out of conflicting claims to the fund. Added weight is given the point by reason of the trial court’s conclusion of law that “San Jacinto Title Company is entitled to be discharged upon its plea of interpleader as to all liability with respect to said sums paid into court as to Plaintiffs Plumbing Supply Company and A. Minella Plumbing Supplies, Inc.”

The trial court found as a fact:

“That the sum of $8,300.00 was deposited by Defendant, Royal Palms Corporation, in escrow with Defendant, San Jacinto Title Company to be applied by the said San Jacinto Title Company for and on behalf of Royal Palms Corporation for the satisfaction of Mechanics’ and Materialmen’s Liens arising under the sub-contract between Big T. Building & Supply Company, Inc. and the original contractor, Peach-ey Construction Company, against the above described property and that said :sum was paid into the Registry of this ■Court by Defendant, San Jacinto Title Company.”

Since this finding has not been attacked as being unsupported by evidence, it is binding on this Court. In view of this fact finding, the conclusion of law set out above would not negative a further implied conclusion that the title company is entitled to be discharged from all liability arising out of claims to the fund which were, or might have been, asserted by any party to the in-terpleader action. The trial court’s findings of fact demonstrate that there were conflicting claimants for the fund, a reasonable doubt as to the proper person legally authorized to receive payment therefrom, and that the title company was claiming no interest in the apportionment and distribution of the fund. Under such circumstances it was entitled to a full discharge. Greenwall v. Ligon, Tex.Com.App., 14 S.W.2d 829; Davis v. Supreme Lodge K. P. Ins. Department, Tex.Civ.App., 31 S.W.2d 359, error ref.

In Austin v. Conaway, Tex.Civ.App., 283 S.W. 189, the court quoted with approval froth Freeman on Judgments (5th Ed.), p. 132, in part, as follows:

“It is always proper to consider what the judgment would have been since it will be presumed that the court intended to adjudge correctly in law upon the facts of the case, and of two possible interpretations of the language of the judgment, that one will be adopted which makes it correct and valid, in preference to one which would make it erroneous.”

The use of the phrase, “from claims arising out of the subject matter thereof,” creates an ambiguity in the judgment, but when we look at it in the light shed by the pleadings of the parties and the fact findings of the trial court, we conclude that the trial court intended to discharge the title company from all liability arising out of conflicting claims to the fund tendered into court, which might have been urged by any of the parties to this suit.

In any event San Jacinto Title Company was entitled to a judgment of discharge after payment of the fund into court on the express findings of fact of the trial court. We, therefore, reform the judgment by eliminating the phrase quoted since the judgment on this phase of the case is complete and correct without it.

The title company has presented two additional points of error complaining of the manner in which the funds were disbursed by the trial court. Since we have held that it is discharged by the judgment of the trial court, the company has no further interest in the funds and may not question the action of the trial court on appeal. Royal Neighbors of America v. Fletcher, Tex.Civ.App., 230 S.W. 476.

Plumbing Supply Company furnished materials to Max I. Kamenzind, a subcontractor. The last supplies were delivered on November 4, 1959. Written notice of the furnishing of these supplies was given Royal Palms Corporation, the owner of the building, on March 9, 1960.

Article 5453, Vernon’s Ann.Tex.St., provides that the materialman shall give notice to the owner of each item furnished within 90 days after the indebtedness accrues, and that he shall file an itemized account with the County Clerk.

Article 5456, V.A.T.S., provides: “(And in case of material furnished, affiant shall further swear that he has given to the owner, his agent or representative or receiver, notice in writing of each item of said account as required in this chapter as the same was furnished * * *).”

Article 5467, V.A.T.S., provides: “When material is furnished, the indebtedness shall be deemed to have accrued at the date of the last delivery of such material, unless there is an agreement to pay for such material at a specified time.”

The trial court found that Plumbing Supply Company gave a proper notice in writing to Royal Palms, and filed its lien with the County Clerk within 90 days of the accrual of the indebtedness. This finding is supported by evidence that Plumbing Supply, the materialman, and Max I. Kamenzind, the subcontractor, agreed that payment for the materials would not be due until December 10, 1959, although the last delivery was made November 4, 1959. Royal Palms knew nothing of this agreement and contends that without its consent the materialman and subcontractor could not fix the date of accrual of the indebtedness at a time beyond the last delivery of material. Article 5467, supra, provides that the indebtedness shall be deemed to have accrued at the date of the last delivery in the absence of a specific agreement as to when the payment would be due. Keystone Pipe & Supply Co. v. Wright, 37 S.W.2d 227, Tex.Civ.App.; Baxter Lumber Co. v. Nickell, 24 Tex.Civ.App., 519, 60 S.W. 450; First Nat. Bank v. Federal Supply Co., 260 S.W. 881, Tex.Civ.App. We find no requirement that the owner of the premises under construction be made a party to a subcontractor’s contract for purchase of materials, nor that he be notified of the date of accrual prior to the time the lien claimant is required to give notice of his account by Article 5453, supra.

Royal Palms contends that the trial court’s findings of fact that at the time notice was given it of the accounts of (1) A. Minella Plumbing Supplies, Inc., and (2) Plumbing Supply Company, it had in its hands sums owing to the original contractor, Peachey Construction Company, are against the great weight and preponderance of the evidence. This assignment requires that we consider all of the evidence. Truett Peachey, as an individual, contracted with Peachey Construction Company for the erection of certain apartment houses for the sum of $210,000.00. He then secured a commitment from Alltex Mortgage Company for a $180,000.00 permanent loan contingent upon completion according to the plans. Thereafter he sold the project to Royal Palms Corporation, who assumed the obligations of the construction contract, and completed the loan. The proceeds of the loan were placed with San Jacinto Title Company by Alltex for disbursement. Neither the instructions given the title company by Alltex nor the terms of the agreement between Alltex and Royal Palms are shown by the record other than testimony that All-tex was looking to the title company to get the bills paid.

After Royal Palms and the title company received notice of the accounts of appellees, and after their liens were fixed by filing with the County Clerk, San Jacinto Title Company paid the sum of $8,575.80 for certain air conditioning equipment to McGraw-Edison Company. It appears from the record that prior to the notice San Jacinto Title Company either paid out or allocated on their records the $180,000.00 received from Alltex Mortgage Company. At that time the sum of $8,575.80 was committed to the McGraw-Edison Company. The commitment was made by the title company because Alltex required that the title company guarantee that the units would be installed. $1,911.33 was paid to Star Steel Supply Company after the liens were filed. This appears to have been made for release of a lien, but again there is no evidence to show the procedure used in allocating the money. Trice Carpet Company was allocated $3,-966.66, which was not actually disbursed to the company until after the liens were filed. Since these payments were made from the proceeds of the loan to Royal Palms in payment of accounts due by reason of labor done and materials furnished under the construction contract, the trial court properly found that at the time the liens were filed, and the notices of account were given to Royal Palms, by appellees, sufficient funds to pay these accounts, belonging to Royal Palms, were held by San Jacinto Title Company. The fact that these funds were allocated to pay other accounts by the title company because it had to guarantee the installation of certain equipment does not show that Royal Palms had paid this money to Peachey Construction Company in satisfaction of its contract. We do not have before us the question of whether or not retention of the funds by the title company pursuant to an agreement in which Royal Palms and Peachey Construction Company participated would have constituted payment.

Truett Peachey, President of Peachey Construction Company, testified that Royal Palms owed him no money at the time of receiving notice on March 7 and December 17. In view of the circumstance that Truett Peachey as an individual sold the project to Royal Palms for an undisclosed purchase price, the court was not compelled to accept this testimony as evidence that on such dates Royal Palms owed Peachey Construction Company no money by reason of the construction contract. The findings of fact of the trial court were not so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Since the notice was given and the liens filed within 90 days after the accounts were due and an amount sufficient to pay the account remained due to contractor from owner, appellees acquired legally enforceable liens. Nichols v. Dixon, 99 Tex. 263, 89 S.W. 765; Johnson v. Amarillo Improvement Company, 88 Tex. 505, 31 S.W. 503; and since the owner paid the contractor by paying accounts which the contractor owed, after appellees’ mechanics’ and mate-rialmen’s liens were filed, the personal judgment rendered against Royal Palms Corporation as owner of the premises was. proper. Wilson v. Sherwin-Williams Paint Company, 110 Tex. 156, 217 S.W. 372.

The judgment of the trial court is reformed and affirmed.


author: MASSEY, Chief Justice.

text:
    Lonnie R. HADAWAY, Appellant, v. LONE STAR GAS COMPANY, Appellee.
    No. 16289.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1962.
    Rehearing Denied March 9, 1962.
    Second Rehearing Denied April 6, 1962.

      Turner, White, Atwood, Meer & Francis, and B. Thomas McElroy, Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case and Jack Pew, Jr., Dallas, for appellee.
   MASSEY, Chief Justice.

Plaintiff Hadaway sued Lone Star Gas Company for damages for injuries sustained by him and his wife when plaintiff’s car struck a ditch in the street which had theretofore been dug by defendant.

The court rendered judgment for defendant upon jury findings that plaintiff’s failure to keep a proper lookout was a proximate cause of the accident.

The plaintiff contends that the findings were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

The accident happened on a Sunday. Several days prior thereto defendant, for the purpose of repairing - a gas leak, had excavated an opening at the intersection of Pat and Aledo Streets approximately 2 feet wide and 11 feet long. Barricades were erected. The hole or ditch was refilled to street level and tamped down, hut the surface was not repaved. The barricades were removed prior to the Sunday in question. The ditch extended into Pat Street, along which plaintiff was driving, about 6 feet. After the ditch was refilled considerable rain fell and water covered the area surrounding and including the ditch or hole. Plaintiff had observed the work in progress, and saw the barricades as late as the preceding Thursday. He lived approximately a block from the intersection.

. Plaintiff testified that around 6:30 P. M. Sunday he and his wife were driving east on Pat Street to reach their home. It was dark and misting. He was looking straight ahead. As he “came around the curve, I saw a car coming down Pat, and slow up to go through the intersection on the right hand side, and when I did, I ran in the hole.” The ditch was covered with water. Other evidence showed the top of the fill-in at the time of the accident to be 4 or S inches below street level.

The jury was properly instructed that proper lookout meant such a lookout as a person of ordinary care and prudence would have kept under the same or similar circumstances.

Ordinarily, proper lookout is a question for the jury. Texas & Pac. Ry. Co. v. Day, 1946, 145 Tex. 277, 197 S.W.2d 332.

On the other hand, there is neither a legal nor a moral obligation to guard against that which cannot be foreseen in the light of common or ordinary experience, and under such circumstances the duty of foresight should not be arbitrarily imputed. City of Dallas v. Maxwell, 1923 (Tex.Com.App.), 248 S.W. 667, 27 A.L.R. 927. See also 38 Am.Jur., p. 860, “Negligence”, § 184 “Knowledge and Appreciation of Peril- — -Generally”, and § 191 beginning on p. 868, “Exercise of Senses and Intelligence”.

It is a well-established general rule that persons using a public way which is in constant use, and when their attention has not been called to any obstructions or perils thereon, have a right to assume, and to act on the assumption, that the way is reasonably safe for ordinary travel, though the rule operates with full force only so long as the travel is within or upon that portion of the way which is intended for general use by the class of traffic for which it is provided. 25 Am.Jur., p. 749 et seq., “Highways”, § 461 “Assumption of Safety of Way”.

Of course, a traveler is chargeable with knowledge of all dangers which should be discovered by the exercise of reasonable care and one having actual knowledge of a defect cannot complain of the want of warning notices. Knowledge of the existence of a defect or obstruction at some previous time does not necessarily charge a traveler with notice of its existence at the time of injury, if the circumstances are such as to afford a reasonable ground for supposing that it had been removed or remedied in the meantime. 25 Am.Jur., p. 752 “Highways”, § 462 “Knowledge or Notice of Danger — Necessity and Sufficiency”. See also 37 A.L.R., p. 587, Annotation “Duty of driver of automobile whose view is obscured by dust, smoke, or atmospheric conditions”, division III on p. 591, “Contributory negligence”, supplemented in 73 A.L.R. 1026. See also Restatement of the Law, Torts, p. 762 “Negligence”, § 289 “When the Actor Should Recognize the Existence of Risk”.

Plaintiff founds no point of error upon the proposition of “no evidence”, and confines himself to desiring a remand of the cause for another trial on the theory that the affirmative jury finding of contributory negligence was against the great weight and preponderance of the evidence. We believe the point of error should be sustained. In so concluding we hold that the circumstances confronting plaintiff at the time of the accident were such as afforded reasonable ground for his belief that the defect in the street, occasioned by the opening of the ditch, had been properly remedied — or in any event that the evidence adduced on trial was not sufficient to so overcome the original presumption of plaintiff’s non-negligence in respect to lookout that a judgment for defendant could be founded thereupon.

Judgment is reversed and the cause remanded for a new trial.

ON MOTION FOR REHEARING

Appellee has filed its motion praying that we set aside our judgment of remand and render judgment against it in the amount found by the jury as appellant’s damages. In other words appellee now desires to pay the damages so found and confesses liability to appellant in said amount.

Appellant protests and resists the motion of appellee. Obviously the appellant hopes to obtain a finding on damages, upon the occasion of another trial, which will be greater than the amount formerly found.

In connection with its motion appellee directs our attention to parts of the record which were immaterial to our examination and analysis in passing upon the point of error presented in the briefs. For example, appellee points out that appellant filed a motion in the trial court to disregard the jury findings upon contributory negligence and to render judgment in his behalf in the amount found by the jury. Appellant made the trial court’s refusal to so render a judgment non obstante veredicto an assignment of error in his motion for new trial, but not of any point of error in this court.

In 4 Tex.Jur.2d, p. 539 “Appeal and Error — Civil”, sec. 924, “Rendition on confession of error”, (3-B Tex.Jur., p. 634, sec. 1029), cases are cited where appellate courts have withdrawn orders remanding causes for new trial upon confessions of liability, etc. made in motions for rehearing which sought rendition rather than remand, and rendered judgments in accordance with appellees’ prayers. In most of these cases both parties to litigation have sought rendition rather than remand, although in Warnack v. Conner, 1934 (Tex.Civ.App., El Paso), 74 S.W.2d 719, it was only the ap-pellee who moved for rendition. In such case the appellant filed no objection to the request. In the instant case appellant is found protesting and strenuously objecting to any action of the court other than to overrule appellee’s motion for rehearing.

Foundation for our action of reversing and remanding the judgment of the lower court in the instant case has been our “un-finding” the “finding” of the jury on the matter of appellant’s contributory negligence. Based upon said “finding” the court had rendered judgment against him.

In none of the cases to which we are cited does it appear that the parties were adversaries upon the action requested. Here the contrary is true. Although propriety of the accommodating action of the courts in the cited cases is not to be doubted, in view of the fact that such action was either taken upon joint request or under circumstances where consent was to be inferred, we do not believe that a refusal of such accommodation would have necessarily constituted reversible error.

We are uncertain that to grant appellee’s request would be to do justice. We feel certain that denial of the appellee’s request could not amount to error. It is denied.

Motion for rehearing is overruled.


author: STEPHENSON, Justice.

text:
    The STATE of Texas, Appellant, v. Jack SINGLETON, Appellee.
    No. 6502.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 30, 1961.
    . Will Wilson, Atty. Gen., Austin, for appellant.
    McDaniel, Hunt & Fairchild, Center, for appellee.
   STEPHENSON, Justice.

This was an action brought in the District Court in Shelby County, by the State of Texas to forfeit an automobile used for the transportation of illicit beverages, under Art. 666-42 Vernon’s Ann.P.C. The lienholder intervened. The case was tried before the court and judgment was rendered for the defendant and intervenor.

The sheriff of Shelby County discovered the automobile stuck in the middle of a muddy dirt road. Neither the defendant, Jack Singleton, nor anyone else was in or near the car at the time of discovery. Shelby County is a “dry county”. A number of bottles of whiskey and wine were inside of the automobile. The intervenors, Milton Jones and Alton Hughes, were ⅛ the used car business. They sold Jack Singleton the automobile, and retained a lien.

The trial court found that the alcoholic beverages in the automobile were illicit beverages, but that the evidence was insufficient to establish that the automobile was used for its transportation. The appellant contends the trial court erred in not finding this automobile had been used to transport such illicit beverages. This is not a case in which the appellate court is asked to determine whether there was sufficient evidence to sustain a finding of either a jury or the court that the automobile had been used to transport the illicit beverages, but it is a case in which the appellate court is asked to find as a matter of law, under the evidence, that the automobile had been used for such purpose. We do not believe the evidence was of such a nature to compel such action on the part of this court.

The State of Texas offered evidence showing: that Jack Singleton was the owner of the automobile; that this automobile was found “crossways of a dirt road”; that the road was muddy and the tracks of this automobile were the only ones to be seen around it; that there were some footprints around the car but “not too many”; that the illicit beverages were found in the automobile; that Jack Singleton had been arrested on two occasions for possession of alcoholic beverages. This was the only evidence as to the matter of transportation. No direct evidence was offered to prove the automobile had moved after the illicit beverages had been placed in it. The State of Texas did no more than raise an issue by circumstantial evidence for the court to determine. The trial court found that the State of Texas had not proved the automobile had been used to transport the illicit beverages. This finding was supported by the evidence and is in accord with the recent Court of Criminal Appeals’ decision in Blanks v. State, 336 S.W.2d 430.

The other two points of error raised by appellant become immaterial in view of this holding.

The judgment of the District Court is affirmed.


author: HUGHES, Justice.

text:
    DARR EQUIPMENT CO., Appellant, v. HOLLAND PAGE, INC., Appellee.
    No. 10930.
    Court of Civil Appeals of Texas. Austin.
    Feb. 14, 1962.
    Rehearing Denied April 4, 1962.
    Dalton, Moore & Walden, Waller M. Collie, Jr., and R. L. McSpedden, Dallas, for appellant.
    David L. Tisinger, Austin, for appellee.
   HUGHES, Justice.

This appeal by Darr Equipment Co. is from an order overruling its plea of privilege to be sued in Dallas County, the County of its residence.

Appellee, Holland Page, Inc., sued appellant in the Court below to recover actual and exemplary damages for wrongful seizure of “ten used Caterpillar equipment items including four tractors three scrapers, and three cable controls” by the Sheriff of Travis County “by reason of some purported writ of sequestration caused to be issued by the defendant (Darr) by reason of a suit filed in Dallas County, Texas, styled Darr Equipment Co. v. Holland Page, Inc. and numbered 56698-G on the docket of the 134th Judicial District Court of Travis, in Dallas * *

Appellee in its controverting affidavit alleged the filing of its original petition, and copied it in full. The original petition was similar to the amended petition, the nature of which we have noted.

Following the petition were these allegations :

"II.
“Such allegations show and it is a fact that the said defendant may be sued in Travis County and venue may be maintained in Travis County as for wrongful sequestration under Subdivision 8 of Article 1995 of the Revised Civil Statutes of Texas inasmuch as the sequestration writ was levied in Travis County, Texas.
“III.
“Such allegations show and it is a fact that the wrongful sequestration amounted to trespass in Travis County entitling this plaintiff to sue the defendant in Travis County as for a trespass under Subdivision 9 of Article 1995 of the Revised Civil Statutes of Texas.”

We also quote the affidavit made by ap-pellee’s attorney to the controverting affidavit :

“BEFORE ME, the undersigned authority, on this day personally appeared David L. Tisinger, who on oath stated that he is attorney for the plaintiff in the above-mentioned cause and states as attorney that the foregoing controverting affidavit and the statements contained therein are true and correct.”

Appellee not having adopted the original petition nor its allegations in its controverting affidavit, and not having sworn to their verity, we have serious doubts that the controverting affidavit was sufficient to raise any venue issues. Lytle v. Preston, 175 S.W.2d 440, Fort Worth Civil Appeals. See also, by the same Court, Spencer v. Gray, Tex.Civ.App., 209 S.W.2d 651, McDonald Texas Civil Practice, Sec. 4.49, pp. 448, 449.

We prefer to base our opinion, however, upon appellee’s failure to plead, by any pleading, or to prove a prima facie cause of action under either subdivision 8 or 9 of Art. 1995, Vernon’s Ann.Civ.St.

Subd. 8 provides, in part, that a suit for damages resulting from the suing out or levying of a writ of sequestration may be brought in any county where the levy under the writ was made in whole or in part.

Subd. 9 provides, in part, that a suit based on a trespass may be brought in the county where the trespass was committed.

The nature of the Dallas County suit from which the sequestration proceedings emanated is shown by the record. It was a suit to recover the title to and possession of certain described personal property leased to appellee by appellant, alleging breach of the lease. The affidavit for sequestration made in that case, and upon which this suit for wrongful sequestration is based, after describing the property sued for, stated that Darr “is the owner of said property so sued for and is entitled to the possession thereof, and that Plaintiff fears the defendant will injure, ill treat, waste or destroy such property during the pendency of this suit.”

It is not contended by appellee and there is no evidence that this affidavit was false insofar as the fears of appellant, expressed therein, are concerned. It is contended by appellee that the sequestration was wrongful because the leased equipment was not rebuilt equipment or “bonded buy” equipment as appellee alleged it was “represented, warranted, and guaranteed to be.” In its brief appellee states:

“The failure of the equipment to qualify as rebuilt or guaranteed or ‘bonded buy’ damaged Appellee in excess of $54,000.00.
“In these circumstances, Appellee made over $10,000.00 in payments upon the equipment but Appellee did not consider itself bound to pay any other money in view of the damages being suffered; the suing out of the writ of sequestration was therefore wrongful.”

It has been authoritatively held that where an owner has been awarded title and possession of property as against defendants to the suit, such judgment is conclusive and res adjudicata to the right of ■such defendants to recover damages from the owner for taking possession under sequestration proceedings. Howe v. Central State Bank of Coleman, 13 S.W.2d 437, Austin Civil Appeals, writ ref. (1929), Hunt v. Bagwell, 111 S.W.2d 312, Eastland Civil Appeals, writ ref. (1937).

Absent evidence that the Dallas County case has terminated either by final judgment favorable to appellee or dismissal, it is our opinion that no cause of action for wrongful sequestration is shown.

No meritorious purpose would be achieved in remanding this cause. It is therefore ordered that this cause be reversed with instructions to transfer it to any Civil District Court of Dallas County in accordance with the provisions of Rule 89, Texas Rules of Civil Procedure.

Reversed with instructions.

Appellee now contends that the sequestration proceedings were wrongful because appellant’s affidavit upon which the writ was issued was false. We adhere to our holding that there is no evidence to support this contention. The motion is overruled.

Motion overruled

      . We take these facts from appellee’s first amended original petition filed May 22, 1961. The original petition was filed December 19, 1960. Appellee’s first amended controverting affidavit was filed May 22, 1961. Appellant’s plea of privilege was overruled June 16, 1961.

      . The venue of this suit is in Dallas County. Holland Page, Inc. v. Darr Equipment Co., Tex.Civ.App., 351 S.W.2d 586.
      The agreement was a lease with option of lessee to purchase.

      . See Bishop v. General Motors Acceptance Corporation, 229 S.W. 848, Austin Civil Appeals.


author: WALTER, Justice.

text:
    CITY OF ABILENE et al., Appellants, v. Irene JONES et al., Appellees.
    No. 3680.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1962.

      Eplen, Daniel, Hooper & Dickson, Abilene, for appellants.
    Webb, Schulz & Stokes, McMahon-,. Smart, Sprain, Wilson & Camp, Abilene,, for appellees.
   WALTER, Justice.

Irene Jones, individually and as guardian-of the estate of Joel V. Jones, filed suit against the City of Abilene and Elmer Finch for damages. The city filed a cross action-against a third party defendant, Norris, Hanley & Norris, hereinafter referred to as Norris, who had a paving contract with the city. The city alleged that Norris was. guilty of negligence and of negligent en-trustment and sought contribution and indemnity from Norris. The city also pleaded its contract with Norris.

The court ordered a severance and rendered a summary judgment for Norris. Jones was employed by Norris at the time of his accident. Norris carried workmen’s, compensation insurance with Texas Employers’ Insurance Association, hereinafter referred to as T. E. I. A. Jones received' workmen’s compensation benefits from T. E. I. A. and this suit was brought by Jones for the joint use and benefit of himself and T. E. I. A. Based on a verdict, judgment was rendered for Jones against the City of Abilene and Elmer Finch for $100,000.00.

The city and Finch have appealed and by their first point contend the court erred in refusing them the right to plead and have determined the amount of T. E. I. A.’s subrogation claim. Article 8307, Section 6a, Vernon’s Ann.Civ.St., provides that when compensation is claimed the insurance company shall be subrogated to the rights of the injured employee and may enforce such rights in the name of the injured • employee or in its own name. In Yeary v. Hinojosa, Tex.Civ.App., 307 S.W.2d 325, (Writ Ref. N.R.E.), the court said: “It is no concern of the negligent defendant how the money recovered may be divided between Hinojosa and the insurance carrier. Under the facts of the case at bar, the matter of subrogation was not for the jury, nor was it necessary to have a finding thereon by the court since Hinojosa and the insurance carrier are in agreement.”

A trial amendment signed by attorneys for Jones and attorneys for T. E. I. A. asserted that T. E. I. A. carried Norris’ workmen’s compensation insurance; that under its policy it had paid Jones workmen’s compensation benefits and that it was entitled to its statutory right of subrogation; that this suit was brought for the joint use and benefit of Jones and T. E. I. A. as authorized by statute; that any judgment entered be in the name of Jones without specific apportionment of any part of the judgment to T. E. I. A.

The city contends that because the court did not set out in its judgment the amount of T. E. I. A.’s subrogation claim, it is subjected to payment of double damages. This may be true if said judgment is not res adjudicata of T. E. I. A.’s sub-rogation claim. The “judgment roll” embraces the written pleadings, the court’s charge, the verdict and the final judgment. Permian Oil Co. v. Smith et al., 129 Tex. 413, 107 S.W.2d 564, 111 A.L.R. 1152. We hold the judgment is res adjudicata of T. E. I. A.’s subrogation claim.

The city contends the court erred in granting Norris’ motion to sever and Norris’ motion for a summary judgment. It was established that Norris carried workmen’s compensation insurance with T. E. I. A. and that Jones was Norris’ employee and that T. E. I. A. had paid Jones some workmen’s compensation benefits. The city could not recover over against Norris for contribution or indemnity. Westfall v. Lorenzo Gin Company, Tex.Civ.App., 287 S.W.2d 551; West Texas Utilities Company v. Renner, 53 S.W.2d 451, (Com.App.).

The jury found that Finch, who was an inspector for the city, failed to keep a proper lookout, was negligent in attempting to pass Jones, was negligent in failing to keep his automobile under proper control and that each of said negligent acts was a proximate cause of the collision. The jury did not find Jones guilty of any act of negligence which was a proximate cause and found the collision was not the result of an unavoidable accident.

The city pleaded (a) that Norris furnished Jones with an ordinary farm'tractor which was not suitable for industrial use (b) that Jones was an unsafe and incompetent operator and Norris was negligent in entrusting said tractor to him. “In connection with the two preceding paragraphs defendants say that said two acts of negligent entrustment, either individually or concurring together, were the sole proximate cause of said accident.” The court sustained Jones’ exception to this pleading and the city contends this was error. At the time the court sustained the exception, he informed the city that he would permit them to plead sole proximate cause predicated upon Jones’ operation of what they alleged to be a defective tractor. The city refused to so amend. No abuse of discretion of the trial court or injury to the city resulting from overruling the exception has been shown. “Moreover, a large measure of discretion is lodged in the trial court in passing on the exceptions to the pleadings, as well as to the time that he hears the same, and, in the absence of a showing of abuse of discretion or injury resulting from the ruling of the trial court, the ruling will not be disturbed.” Southern Underwriters v. Hodges, Tex.Civ.App., 141 S.W.2d 707, (Writ Ref.).

Jones’ attorney asked an officer if he issued a traffic ticket to either of the parties involved in the accident. The court sustained the city’s objection and instructed the jury not to consider it for any purpose. The jury must be presumed to have obeyed the instructions of the court and to have disregarded the question. Walker v. Texas Employers’ Insurance Ass’n, 155 Tex. 617, 291 S.W.2d 298. The Supreme Court in Younger Brothers, Inc. v. Myers et al., 159 Tex. 585, 324 S.W.2d 546, at page 550, said: “We are unwilling to accede to the proposition that juries pay little or no attention to the instructions of trial judges.”

The city contends there was no evidence to warrant the submission of the damage issue in so far as future medical care was concerned.

It was stipulated that Jones’ medical expenses to the time of the trial had been $25,981.56. Jones required drugs regularly which cost from $100.00 to $150.00 per month. He has been unconscious since May 4, 1959, is fed a special formula through a tube, has a tube in his bladder, has had a tracheotomy and it is necessary to clear his throat regularly with a suction machine and maintains a shift of nurses around the clock. It was stipulated that a man 67 years of age has a normal life expectancy of 10.42 years. Jones’ treating physician and surgeon testified he would live about five years from the date of his injury and that he will continue to require drugs, at least to the extent that he is now requiring them, the nurses and special equipment so long as he lives. We hold the record contains some evidence of probative value on future medical expenses.

The amount of the verdict is not excessive compensation for Jones’ damages. The city has failed to show that the verdict was not the result of calm and conscientious deliberation of the jury, uninfluenced by passion or prejudice.

We have examined all of appellants’ points, and find no merit in them and they are overruled.

Judgment affirmed.


author: HUNTER, Presiding Judge.

text:
    Helen A. THRESHER, Appellant, v. The NURRE COMPANIES, Inc., et al., Respondents.
    No. 23456.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.
    Speers & Bevins, Austin B. Speers, Howard W. Bevins, Kansas City, for appellant.
    Arnold N. Shanberg, Rope, Shanberg,. Rope & Bigus, Kansas City, for respondents.
   HUNTER, Presiding Judge.

This action arises under the Workmen’s Compensation Law. The decedent, Samuel M. Thresher, was killed in an accident on February 19, 1959, while employed by The Nurre Companies, Inc.

The deceased’s fourteen year old daughter, Nancy, through her Guardian filed a claim for the death benefits. Appellant, Helen A. Thresher, also filed a claim to those benefits, alleging she is the common-law wife of decedent. The causes were consolidated for trial by the referee.

Respondents, the Nurre Companies, Inc., and its insurer, Employers Mutual Liability Insurance Company, conceded decedent’s death arose as the direct result of an accidental injury arising out of and in the course of his employment but denied that appellant was the lawful widow of the deceased so as to entitle her to certain of the benefits rather than have them go to the minor child of decedent.

At the hearing before the referee, Division of Workmen’s Compensation, evidence was adduced which can be summarized as follows: Appellant stated she became the common-law wife of deceased on June 17, 1958, in Manhattan, Kansas. On that date she, her daughter by a previous marriage, and deceased were on their way from their separate residences in Kansas City, Missouri, to Yellowstone National Park and had car trouble in Manhattan, Kansas, causing them to remain there three days. Appellant testified, “He told me before we left that I had a big surprise”, and that evening he came around in back of the car, and he put his arms around me, took hold of my hand, and put my rings on. He turned me around and he said, “You are in Kansas now.” He said, “You are my wife.” Later deceased introduced her as his wife to three people (whose names she could not recall) at a filling station-restaurant. At the end of the three days they left Kansas and proceeded to Yellowstone Park.

After three or four days they left Yellowstone Park and returned to Kansas City, Missouri, where deceased moved into appellant’s home. There they lived together until deceased’s death stating to relatives, friends, neighbors and business houses that they were man and wife.

Appellant testified she and deceased had kept company and had engaged in illicit sexual relations with each other on a number of occasions during a period of one year prior to the claimed marriage. She was asked if she and deceased had ever “lived together” in Kansas, to which she replied, “ * * * I didn’t.”

The referee ruled against appellant’s claim finding she failed to establish and prove by competent evidence that she entered into and consummated a valid common-law marriage in the State of Kansas, and failed to establish and prove she cohabited with, and was held out to be the wife of deceased, as required by the laws ■of the State of Kansas.

Appellant made application for review to the Industrial Commission of Missouri. That commission on October 13, 1960, after review, found the award of the referee to be correct in all respects and supported by competent and substantial evidence and affirmed and adopted that decision. On November 10, 1960, appellant filed a notice of appeal to the circuit court of Jackson County, Missouri.

As to what happened thereafter the record is silent Through statements contained in the briefs filed in this court and by inquiry to the circuit court of Jackson County it seems that the following occurred: The appeal was assigned to Division 11 of the Jackson County Circuit Court. A hearing occurred there. The circuit court judge .ruled against appellant’s contentions, whatever they were, and on April 17, 1961, entered judgment affirming the decision of the Industrial Commission.

A notice of appeal to this court was filed on April 22, 1961. More than seven months after the notice of appeal was filed and on November 29, 1961, the appellant ordered a transcript from the reporter of Division 11 of the Jackson County Circuit Court but made no deposit to assure payment of it. No circuit court transcript has been prepared. Nor has a circuit court transcript been filed in this court. Neither this court nor the circuit court has ever been requested to extend the time for filing a transcript. The only “record” we have before us is the transcript of the proceedings before the Industrial Commission and a copy of the notice of appeal. We do not have a copy of the circuit court judgment from which the appeal was taken.

Respondents filed a motion to dismiss the appeal for failure of appellant to comply with the civil rules appertaining to the obtaining and the timely filing of transcripts. Respondents’ motion also asked dismissal of the appeal for failure of appellant’s brief to contain any charge of error on the part of the trial court. We have taken that motion with the case. Appellant has not filed any opposing suggestions nor made any oral explanation.

It is the fact that appellant’s brief fails to charge that the circuit court erred in any respect. Even the argument portion of appellant’s brief fails to mention the trial court or to charge it with having committed any error. For all practical purposes, so far as the record discloses, the trial court has been wholly ignored and the matter treated as though it came to this court directly from the Industrial Commission of Missouri.

This court, as is true of any appellate court in this state, has no direct appellate jurisdiction to review the judgments of the Industrial Commission. Section 287.-490 RSMo 1959, V.A.M.S. provides the final award of the Commission shall be conclusive and binding unless either party to the dispute shall within thirty days from the date of the final award appeal to the appropriate circuit court. On such an appeal the circuit court has a limited power of review which it is to exercise. The circuit court, after the hearing provided, must enter its judgment.

Any subsequent appeal must be from the judgment of the circuit court. As provided in Section 287.490(2), “Appeals from the circuit court shall be allowed in the same manner as in civil actions, except that the original transcript prepared and filed in the circuit court by the commission, together ■with a transcript of the proceedings had in the circuit court, shall constitute the transcript on appeal in the appellate court.” (Emphasis ours.)

Civil Rule 82.14(a), V.A.M.R. provides a transcript on appeal shall include, among other items, the findings of the court or jury and the judgment or order appealed from.

Civil Rule 82.18 provides the transcript on appeal shall be filed with the appellate ■court within 90 days from the date of filing the notice of appeal. Extensions of such time are obtainable from the trial court upon timely and proper application, not to exceed six months. See Civil Rule 82.19. Appellant made no effort to obtain any such extension.

Civil Rule 83.05 advises what the brief ■of an appellant shall contain. One requirement is: “The points relied on, which shall show what actions or rulings of the Court •are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authority thereunder.” (Emphasis ours.) Appellant has failed to mention any ruling or action of the circuit court that she seeks to be reviewed and claims to be erroneous.

Appellate courts are always reluctant to dismiss appeals for failure of a party to comply with the rules that govern appeals, and they endeavor to exercise a remedial discretion whenever such reasonably can be done without substantial injustice resulting to the innocent party or to a fair determination of the appeal on its merits.

In the instant situation the mentioned numerous violations are of such a substantial nature and result in such serious problems both to the court and to the respondents that we are precluded from a reasonable exercise of any curative discretion. ■We are without an appellate transcript. The time for filing an appellate transcript or for obtaining extensions of that time is long since past. Appellant’s brief does not contain proper contentions so as to enable respondents to meet them as they are entitled to do.

Rather than say more, we sustain respondents’ motion and hereby dismiss the appeal. It is so ordered.

All concur.

      . All of appellant’s testimony of this nature was objected to as prohibited by the Dead Man’s Statute, Sec. 491.010 KSMo 1949, V.A.M.S.


author: McDowell, judge.

text:
    Curly ROY, Carl Wallace, and George Purcell, Plaintiffs-Respondents, v. Jimmy TINSLEY, Defendant-Appellant.
    No. 8026.
    Springfield Court of Appeals. Missouri.
    March 30, 1962.

      Walker, Daniel, Clampett, Rittershouse & Ellis, B. H. Clampett, Springfield, for appellant.
    Chinn, White and Dickey, Turner White, III, Springfield, for respondents.
   McDowell, judge.

This is an action in attachment to recover the purchase price of 18 head of cattle purchased by defendant from plaintiffs September 16th and 17th, 1960.

Defendant-appellant, W. C. Tinsley, admits the purchase of the cattle for the sums alleged in the petition but pleads he paid for them to one, Mack Morris, agent of plaintiffs for receiving payment.

The cause was tried by the court and judgment rendered for plaintiffs for $3575.-00 purchase price plus $153.19 interest.

The evidence offered on the issue presented is not in dispute. W. C. Tinsley, Jr.,, a dairy cattle broker, d/b/a “Tinsley-Farms” is, and was at the times mentioned in the petition, a resident of Lafayette, Alabama. Plaintiffs, George Purcell, Carl' Wallace, and Curly Roy, are cattle dealers, residing respectively in Elkland, Willard, and Springfield, Missouri.

On September 16, 1960, plaintiff, Wallace, sold defendant 4 head of cattle for an agreed price of $750.00; Purcell sold him 3 head of cattle for $540.00, and Roy sold him 12 head for $2285.00.

Under the terms of purchase plaintiffs were to deliver the cattle to Mack Morris’' pens on East Division Street Road in Springfield, where they would be treated for Bangs and TB disease and, thereafter, loaded into a large trailer for shipment to-Alabama.

The evidence is that defendant and his. agent, R. K. Rice, began buying cattle from local dealers in Missouri in October, 1959. Defendant testified that he was a total stranger in the community so he contacted', a local dealer, Mack Morris, and paid him, $10.00 a head commission to assist in buying the cattle. As to Morris’ duties he testified:

“Q. What did he do to earn that commission? A. Made appointments for us. to look at cattle from different dealers, carried us around to see the cattle, helped' us buy the cattle from the different dealers, had the cattle sent in to his place, fed them, took care of them, until time for them to-be loaded, which might be one day or it. might be five days, might be a week.

“Q. And distributed the money, didn’t he? A. He paid the other — he paid the-people that we purchased the cattle from,, that he made the appointments with for us-to go look at the cattle.”

It was defendant’s testimony that during the time he was buying cattle in Missouri he would call Mack Morris when he needed cattle, or, at times, Morris would call them (meaning either defendant or Mr. Rice, his agent), and tell them the different dealers who had cattle on hand or that they had been calling him wanting defendant or his agent to come up and buy cattle.

He testified that at the time he purchased cattle it was understood between him and the seller that Morris would pay by his personal check; that defendant or his agent, before leaving the State, would figure the total purchase price of all cattle bought from plaintiffs and others and give Mack Morris a check on the “Tinsley Farms” for that amount plus $10.00 a head commission. He further testified that neither of the plaintiffs ever made any objection to the method of payment. One of the plaintiffs did complain to Rice that they were a long time receiving their checks and Rice told him if he would complain to Morris he would do something about it but this was never done.

In the transactions of September 16th and 17th, 1960, defendant purchased 59 head of cattle from nine dealers. These purchases included the cows bought from plaintiffs involved in the instant lawsuit. Before leaving defendant gave Morris a •check for $12,095.00, which, of course, included not only the purchase price of the 59 cattle but Morris’ commission. The testimony is undisputed that all the cattle purchased by defendant or his agent for the Tinsley Farms during the entire period defendant was doing business in Missouri were sold directly to defendant. He testified that at no time did Mack Morris ever have any interest or title to the cattle purchased. He introduced what he called “Bills of Sale” for cattle purchased but these instruments were not bills of sale but merely written statements, written by Morris’ employee, showing the number of cattle bought from each of the sellers, the purchase price, etc., and were not signed by anyone. Each of the plaintiffs in the instant case admitted they were looking to Morris for payment.

Under questioning by the court defendant testified that he never had any agreement that he would pay plaintiffs for the cattle. He gave this evidence:

“Q. Was there an agreement that Mack Morris would deliver the money to them? A. Yes, sir. Yes, sir, I guess so — it had to be or they wouldn’t have sold the cattle through Mack Morris. The first time that I came up here, Mack Morris introduced me to these men, different men, I might have met twenty-five or thirty different ones. And they didn’t know me from Adam. * * * If Mack Morris had not been along, those fellows wouldn’t have sold me a cow unless I had the cash money. They wouldn’t have taken my checks.”

In answer to the court’s further questioning, defendant testified: “A. Mack Morris introduced me to these fellows, and we had agreed to pay for the cows, and that was the way it was handled from October 6th of ’59 through September the 17th of ’60 when he didn’t pay those boys for the cattle.”

There was further evidence in the record that on three different occasions defendant had advanced to Morris cash in sums of $8,000 or $10,000 to pay for cattle purchased when Morris had informed defendant that the sellers wanted their money sooner than it would be paid them under the usual course. But, under the testimony, Morris, at no time, made the purchase of the cattle for defendant. He merely assisted as set out above. He never owned any interest in the cattle, therefore, was in no position to give a bill of sale. The evidence is that during the eleven months preceding the transactions in September, I960, out of which the present suit arose, plaintiffs Wallace, Purcell and Roy sold cattle to the defendant respectively on six, ten and sixteen separate occasions and were paid by personal checks from Morris.

Defendant assigns as error the action of the trial court in overruling his after-trial motion for judgment because Morris was plaintiffs’ agent for receiving payment. It is defendant’s view of the case that under the undisputed evidence of course of dealing, Morris was plaintiffs’ agent for receiving payment from the defendant.

To sustain defendant’s position he cites Brooks v. Jameson, 55 Mo. 505; Large v. Frick Co., 215 Mo.App. 232, 256 S.W. 90 [2]; Bennett v. Potashnick, 214 Mo.App. 507, 257 S.W. 836; Wyse v. Miller, 222 Mo.App. 165, 2 S.W.2d 806; Klaber v. Fidelity Bldg. Co., Mo.App., 19 S.W.2d 758 [7]; Kraemer et al. v. Leber et al., Mo.App., 267 S.W.2d 333; Hamilton v. Hecht, Mo.App., 283 S.W.2d 894; and Mechem on Agency, 2d Ed. Vol. 1, § 717.

The law as declared in the cases cited is that agency may be implied and shown by the conduct and acquiescence of the principal, or from the course of business between them, and their actions in their course of business dealings; that if one induced another to believe in the existence of the particular state of facts, and the other acts thereon to his- prejudice the former is es-topped as against the latter to deny that the state of facts does in truth exist.

In Hamilton v. Hecht, supra, on page 899 [4] this 'law is stated:

“Appellants refer to the undoubted rule that when the maker pays money on a note to one who does not have the note in his possession he pays at his peril and at the risk of being required to show that the payee was authorized to collect the payment as the agent of the owner. When an implied agency arising out of a course of conduct is established, however, the case is taken out of the operation of the rule.”

In Klaber v. Fidelity Bldg. Co., supra, 19 S.W.2d page 763[6, 7] the court stated the rule relied on by defendant in this case, to-wit: “That agency may be shown by course of conduct as well as by express contract is well ■ established”.

In Leidy v. Taliaferro, Mo.Sup., 260 S.W.2d 504, 505 [2, 3] the court quotes from Restatement, Agency: “ ‘Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ Restatement, Agency, § 1. The parties may not have intended to create the legal relationship or to have subjected themselves to the liabilities which the law imposes as a result of it, nevertheless, the relationship exists ‘if there has been a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act.’ Restatement, Agency § 15. * * * In this connection it may be noted that ‘a person may be the servant of two masters’ (Restatement, Agency, § 226), or he may become the lent servant of another (Restatement, Agency § 227), or he may act with a mixed or double purpose for himself and another. Foster v. Campbell, 355 Mo. 349, 196 S.W.2d 147; Restatement, Agency, § 236.”

On page 506 [4-6] of the opinion the court stated:

“ ⅜ * * The requisite manifestation of consent to create the relationship may be ‘written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal’s account.’ Restatement, Agency, § 26. * * * While compensation to the agent is not essential to the creation or existence of the relationship (Restatement, Agency, §§ 16, 225) the fact that Leidy,, Senior, was paid by Mr. Taliaferro personally, as the jury could have found, is a circumstance indicative of the relationship.”

In Martin v. Mercantile Trust Co., Mo.Sup., 293 S.W.2d 319, 325[1-4], the court stated:

“ * * * And, furthermore, there is no presumption of agency and the burden of establishing it is always on the party by whom it is alleged to exist. * * * Agency involves not only a mutual consent, but in the usual case, an element of control, State ex rel. Mountain Grove Creamery, Ice & Electric Co. v. Cox, Banc, 315 Mo. 619, 286 S.W. 368; Leidy v. Taliaferro, Mo., 260 S.W.2d 504, * *

In Pashalian v. Big-4 Chevrolet Company, Mo.App., 348 S.W.2d 628, 632[2-4] the court stated:

“The evidence does not sustain the claim that Lesch was the agent of Pashalian. There is never a presumption of agency, and the burden of establishing agency is on the party asserting it and by whom it is alleged to exist. Martin v. Mercantile Trust Company, Mo., 293 S.W.2d 319. “Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” * * * ’ If an agency is to be implied from the facts, it must be implied from a natural and reasonable, and not a strained or distorted construction of the facts.”

We have not attempted to analyze the facts of all the authorities cited by both plaintiffs-respondents and defendant-appellant. We have examined these authorities and the facts are so different as to shed little light upon the question here presented.

The law is well settled that each case must be decided upon the facts of that particular case. Spears v. Schantz, 241 Mo.App. 879, 246 S.W.2d 399, 406[4]; Kerkemeyer et al. v. Midkiff, et al, Mo.App., 281 S.W.2d 516[1].

The law governing the issue here involved is well settled. We have set out the law as declared in the many authorities cited. The defendant asserts as his sole defense that Mack Morris was the agent of plaintiffs to receive payment for the cattle purchased. Under the law there is no presumption of agency and the burden of establishing it is on the party by whom it is alleged to exist. Leidy v. Taliaferro, Mo.Sup., 260 S.W.2d 504, 505[2, 3] ; Hamilton v. Hecht, Mo.App., 283 S.W.2d 894, 898[2], We agree with defendant that agency can be established by course of dealing as well as by express words. This law was stated in Ferneau v. Whitford, 39 Mo.App. 311, 317, as follows:

“* * * Yet, if the principal, by his conduct and course of dealing, held out one to be his agent to receive mony and thus induces his debtor to pay money to such agent, he is concluded thereby. To permit the principal, in such case, to deny the authority of the agent, would be to perpetrate a fraud upon the debtor.”

The law was clearly stated in 2 Am.Jur., § 2, page 13, (Agency) as follows:

“An agency may be defined as a contract either express or implied upon a consideration, or a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and render an account of it. This is comparable with the definition of agency as adopted by the American Law Institute. That definition is as follows:' ‘Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ ”

This rule of law was followed by our Supreme Court in Leidy v. Taliaferro, supra. In this case the court stated:

“ * * * nevertheless, the relationship exists ‘if there has been a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act’. * * *

“ * * * The requisite manifestation of consent to create the relationship may be ‘written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the prin cipal’s account.’ * * * While compensation to the agent is not essential to the creation or existence of the relationship * * * the fact that Leidy, Senior, was paid by Mr. Taliaferro personally, * * * is a circumstance indicative of the relationship.”

In the instant case the facts show that defendant and his agent, Rice, were residents of Alabama; that they desired to purchase dairy cattle in Missouri, and, being strangers, they either had to pay cash for the cattle purchased from different sellers or adopt some method of payment which would be acceptable to them. Defendant selected Mack Morris, a local cattle dealer, to assist him in the purchasing of cattle. He adopted a course of dealing whereby Morris would make appointments with owners of cattle, call defendant by phone, or defendant would call him, and defendant would come to Missouri, either himself or his agent, and Morris would take them to see the cattle. Defendant would make the purchases under an agreement that the sellers would deliver their cattle to Morris’ pens for the purpose of having them tested for Bangs and TB disease and where they could be loaded on a large truck for transportation to Alabama.

The court interrogated defendant as to his agreement with different cattle owners as to how the payment was to be made. Defendant testified that he had an agreement with them that Mack Morris would pay them by his personal check. He stated to a question by the court, “It had to be or they wouldn’t have sold the cattle through Mack Morris”. There isn’t any testimony that these plaintiffs selected Mack Morris to act for them in receiving payment for their cattle. Mack Morris never owned or had any interest in the cattle bought. He was merely acting for the defendant for a commission. Thus, the defendant used Mack Morris as a means of payment. He selected the agent, it was his money that was used by Morris in the payment for the cattle and Morris was along because of his acquaintance with the various cattle sellers for the benefit of defendant. We find that the defendant failed to offer evidence which establishes the defense he relies upon. The evidence reasonably interpreted in no way would cause plaintiff to believe Morris was acting for them. We think the only reasonable interpretation to be reached is that defendant was using Mack Morris as a suitable means by which payment could be made to the plaintiffs. The course of dealing as shown by the evidence is not in controversy. Defendant selected Morris to act for and in his behalf to pay for the cattle he purchased. Morris was subject to the control of defendant. He defaulted in his obligation under his agreement with the defendant. Thus where one of two innocent persons must sustain a loss by the fraud of a third person, the loss must of necessity fall upon the one who put the power in the third person to commit the fraud.

Judgment affirmed.

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


author: RUARK, Presiding Judge.

text:
    Hazel L. SCOTT, Plaintiff-Respondent, v. Jerry V. NASH and Geraldine Nash, Defendants-Appellants.
    No. 7985.
    Springfield Court of Appeals. Missouri.
    March 22, 1962.

      Breuer, Northern & Crow, Ralph M. Crow, Eugene E. Northern, Rolla, Dorman L. Steelman, Salem, for defendants-appellants.
    Routh & Decker, Dewey Routh, Rolla, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is another near-head-on collision in which each party contends the other was on the wrong side of the road. The jury found against plaintiff Scott on her petition and in favor of defendant Geraldine Nash on her counterclaim. Thereafter the court sustained plaintiff’s motion for new trial, and defendants have appealed.

The collision occurred south of Rolla on a straight (north and south) farm-to-market gravel road. At the scene of the collision the road, going south, climbs up out of a valley on a long, steep hill. Once over the crest of the hill, the grade, coming from the south, is not so steep. The collision point was on the steeper north slope, some 175-185 feet (this is only approximate) down north of the crest of the hill. Along parts of this road were “tracks” or places approximately 18 inches wide made by the wheels of various cars. One of these tracks was on the east side of the road, one on the west, and one down the approximate center. There is evidence that, in or near the immediate vicinity of the collision and north of it, on the west side of the road the gravel had washed out, leaving rocks, and that the road there was rough. Both plaintiff and defendants appear to have been familiar with the road.

Mrs. Scott, the plaintiff, was driving her Dodge south, up the hill, at a speed she said was less than 25 mph (defendant Geraldine Nash said 30-35 mph). According to plaintiff’s contention, she was on her own (west) side of the road. She says that the defendants’ automobile came (from the south) over the crest of the hill at a speed from 50 to 60 mph, partly on her (west) side of the road, veering to its left; that defendants’ car was “sort of bounding,” leaping, or jumping; that she took her foot off the accelerator and was almost stopped; and that the Nash car continued its course until almost upon her, when it turned sharply farther to the left.

The Nash car was a Mercury. Defendants’ version is that this Nash Mercury be-. longed to the defendant Geraldine but was being driven by her husband, Jerry. They were going (north) to work in Rolla. As they came over the crest of the hill, the Mercury had its right wheels in the extreme east (right-hand) track and its left wheel in or near the center track. The Mercury was traveling (by Jerry) 40-50 mph or (by Geraldine) 40-45 mph. Defendants say that plaintiff Scott was on their (or east) side of the road. Defendant Jerry said he waited, thinking plaintiff would move over, and as the cars neared he turned his wheels to the left (there was a ditch and culvert on the right). Defendant Geraldine said that as they came over the crest of the hill she screamed “Jerry.” He swerved to the left and slammed on his brakes sufficiently to throw her against the windshield.

The cars collided somewhere near the center of the road. The majority of the debris was a little west of the center of the road. Damage to the cars indicated that the force of initial impact was taken by the right side of the front of both cars.

Plaintiff’s instruction 1 hypothesized her own highest degree of care and Geraldine’s ownership of and presence in the Mercury automobile, and submitted on negligence (in the conjunctive) of Jerry in (a) excessive speed, (b) failing to drive on the right half of the road, and (c) failing to have his automobile under control.

Plaintiff’s instruction 2 made the same hypothesization and submitted on the fact that Jerry failed to drive on the right half and while so driving failed to swerve or turn the Mercury away from plaintiff’s automobile and thus avoid collision.

Plaintiff’s instruction 8 told the jury that if the Mercury was owned by defendant Geraldine and she was riding in and had control of the car, any negligence of her husband was imputable to her, and directed a verdict on the counterclaim.

Defendants submitted and had given verdict-directing instructions 4 and 5, which are as follows:

“INSTRUCTION NO. 4
“The Court instructs the Jury that if you find and believe from the evidence that on the occasion mentioned in evidence Defendant Geraldine Nash was a passenger in the motor vehicle driven by Defendant Jerry Nash and that at all times herein mentioned she was exercising the highest degree of care for her own safety and the safety of others, if you find she was; and if you further find that the motor vehicle in which she was riding was being driven North and on the East side of the roadway mentioned in evidence; and if you further find and believe from the evidence that when the motor vehicle in which Defendant Geraldine Nash was riding had reached the crest of the hill mentioned in evidence, the driver of said motor vehicle immediately saw the motor vehicle driven by Plaintiff Hazel Scott approaching on the East side or Plaintiff Hazel Scott’s left hand side of said roadway, if you find the facts so to be; and if you further find and believe from the evidence that it then reasonably appeared to Defendant Jerry Nash, who was on the proper side of the road, that there would be a collision unless he turned to the left, and acting upon such appearance, he swerved the car he was driving to the left, and in doing so did what a person exercising the highest degree of care would have done under similar circumstances, if you find all these facts so to be; and if you further find that said collision was directly caused by the failure of Plaintiff Hazel Scott in driving her motor vehicle to drive the same on her right hand side of the roadway, and that such failure on her part, if any, was negligence; and if you further find that the negligence of Plaintiff Hazel Scott, if you find she was negligent, directly and proximately caused Defendant Geraldine Nash’s injury or injuries, if you find she was injured; and if you further find that Defendant Geraldine Nash was not negligent in any manner as set forth in other instruction (s) herein; then if you find all the facts so to be you will find the issues for Defendant Geraldine Nash on the counterclaim of Defendant Geraldine Nash and against Plaintiff Hazel Scott on Plaintiff’s petition.
“INSTRUCTION NO. 5
“The Court instructs the jury that it is the duty of the operator of a motor vehicle upon the highways of this state to drive upon the right half of the roadway. But the Jury are further instructed that an operator of a motor vehicle meeting an automobile coming from the opposite direction may be justified, under some circumstances, in turning out to the left instead of to the right to avoid a collision.
“And in this connection you are further instructed that if you find and believe from the evidence that at the time and place of the collision mentioned in the evidence Defendant Jerry Nash was operating his vehicle upon the right half of the roadway, if you so find, and immediately before the collision saw the automobile driven by Plaintiff Hazel Scott being operated on the same side or Plaintiff’s left side of the roadway, if you so find, and if you further find and believe that it reasonably appeared to Defendant Jerry Nash that there would be a collision unless Defendant Jerry Nash turned to the left, and, acting upon such appearance, Defendant Jerry Nash turned the automobile he was driving in that direction, if you so find, and in doing so did what a person exercising the highest degree of care would have done under similar circumstances, then Defendant Jerry Nash did not violate the law of the road and was not guilty of negligence, and you will find the issues for Defendants.”

Since the trial court assigned no reasons in granting the new trial, the respondent has the procedural burden. Supreme Court Rule 83.06(b), V.A.M.R.; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Hall v. Brookshire, 364 Mo. 774, 267 S.W.2d 627. And the sole grounds asserted in defense of the ruling appealed from are errors in the giving of the two foregoing instructions 4 and 5.

It will be noted that these are both verdict-directing instructions on plaintiff’s petition and defendants’ counterclaim; that instruction 4 hypothesizes highest degree of care of Geraldine as a passenger; and that instruction 5 hypothesizes the highest degree of care of Jerry after it appeared there would be a collision. It does not mention Geraldine.

Respondent contends that instruction 5 submits an emergency without hypothesizing any freedom from negligence which contributed to cause the emergency; that both instructions absolve appellants from all negligence if Jerry Nash turned to the left immediately before the collision, and thus ignored negligence of Jerry in driving at an excessive speed and in failing to keep defendants’ automobile under control; that the two instructions conflict as to when the hazard arose; and that both instructions omitted a requirement for the finding of essential facts, either as to the affirmative defense to plaintiff’s petition or as to defendants’ counterclaim.

Appellants argue that instruction 4 submitted all the essential elements necessary for a recovery by Geraldine, and if plaintiff deemed it inadequate she should have offered a clarifying instruction; that instruction 5 was simply a converse of plaintiff’s instructions 1 and 2; that since plaintiff submitted in the conjunctive, defendants were entitled to converse any one of plaintiff’s specifications and submit a verdict-directing instruction on that ground alone; that it was not necessary to hypothesize facts dealing with the creation of the emergency because “it may reasonably be inferred” that defendants did not create it; that all the instructions must be read together, and any omissions in defendants’ 4 and 5 were cured by plaintiff’s instruction 8 concerning imputed negligence.

The case has been ably briefed and argued by counsel on both sides. Since most of the argument concerns instruction 5, we will consider it first.

As to whether instruction 5 is an “emergency” or “converse” instruction, we think, little is to be gained by attempting distinctions in nomenclature or classification.. The instruction is converse in the sense that it presented the opposing view as to-whi.ch party was on the wrong side of the road; but it goes further and directs- a verdict “on the issues” if, because of an emergency thereby created, Jerry Nash: turned to the left to avoid collision.

The emergency doctrine is not, in and of itself, a defense; it is a factor to be considered. An integral part of the doctrine is that the emergency shall not have been caused or contributed to by the one who asserts the emergency. The doctrine has no application and may not be asserted if the emergency arose wholly or partly from the negligence of the one who seeks to invoke it. The submission of the emergency situation necessitates the hypothesizing of the conduct (in respect to care) of the one asserting it before the emergency situation arose. Rohde v. St. Louis Public Service Co., Mo., 249 S.W.2d 417; Browne v. Heeter, Mo., 267 S.W.2d 666; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, 547; Boatright v. Bruening, 363 Mo. 494, 251 S.W.2d 709; Leek v. Dillard, Mo.App., 304 S.W.2d 60; Bowman v. Heffron, Mo., 318 S.W.2d 269.

True it is that where the findings as directed in an emergency doctrine instruction necessarily include and dispose of the only negligence which, under the evidence, could be involved, no further hy-pothesization of lack of negligence in pro-during the emergency is required. But that is not the situation here. The plaintiff contended and had submitted in instruction I. that (a) Jerry Nash was driving at an excessive rate of speed, (b) he did not have his automobile under control, and (c) he drove on the wrong side of the road. She also contended, and had submitted in instruction 2, that (d) while driving his automobile to the left of the center of the road he failed to swerve or turn his car to avoid the collision.

There was evidence from which the jury •could have found that Jerry was driving at .an excessive rate of speed considering the ■terrain and the circumstances as he came up to and over the crest of the hill. Plaintiff said he was going 50-60 mph. Defendant Geraldine said that when he slammed on the brakes the force threw her against the windshield and her face was cut. There was also evidence from which it could be found that his speed was excessive after he came over the crest and saw the •plaintiff’s car. He says that when he first ■came over the hill he saw the plaintiff “between 50 and 75 foot, below this driveway” (all the evidence shows the driveway to have been 175 to 185 feet below the crest). “I waited, thinking she would get over.” Plaintiff said that from the time the defendants’ car appeared over the crest until the collision her car moved only the distance of one car length. There was also evidence (by plaintiff) that Jerry did not have his car under control because his car was “leaping” and “bounding” and was gradually veering to the left as he came over the hill and up until immediately before the crash when he swerved abruptly to the left. We are not saying that the jury should have found excessive speed or failure of control, but such facts, if true, should not have been excluded from the jury’s consideration in arriving at their verdicts on the petition and the counterclaim. Yet under instruction 5 the sole thing the jury had to consider was that Jerry was on the right side, Mrs. Scott was on the wrong side, that it reasonably appeared there would be a collision, that Jerry turned to the left and in so turning was exercising the highest degree of care. If it found these things, defendant Geraldine was “home free” regardless of any antecedent negligence which helped to produce the emergency, and regardless of negligence of Jerry in continuing in high speed or lack of control after it became apparent to him that plaintiff was on the wrong side of the road.

We find instructions similar to this were given in Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78, and in Lewis v. Zagata, supra, 166 S.W.2d 541. In the Huckeba case it was said the instructions did not conflict; but the plaintiff submitted only one ground of negligence, viz., not driving on the right side of the road, and apparently no counterclaim was involved. Furthermore, it was the defendant who was complaining. The Zagata case was an appeal on a defendant’s verdict with no counterclaim involved in the case. The only negligence submitted by defendant’s instruction was driving on the wrong side of the road. A more nearly proper presentation of defendant’s theory we think was made in (instruction A) Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736.

A verdict-directing instruction submitting an affirmative issue must require the finding of all essential facts necessary to establish the legal proposition upon which the right to a verdict is based. Raymond, Missouri Instructions to Juries, vol. 1, § 125; May v. Bradford, Mo., 348 S.W.2d 133(3) ; Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102; Willard v. Bethurem, Mo.App., 234 S.W.2d 18; Rohde v. St. Louis Public Service Co., supra, 249 S.W.2d 417; Levin v. Caldwell, Mo., 285 S.W.2d 655; McDaniel v. McDaniel, Mo., 305 S.W.2d 461; see Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14.

Appellants argue that since the plaintiff’s submission was in the conjunctive, the defendants were entitled to pick out any one of the conjunctive submissions and submit a converse as to that particular fact or issue. Following appellants’ theory, we can see possibilities of a verdict being rendered which is based upon a completely phantom issue.

Disregarding for the moment the fact that the instruction affected the counterclaim, and considering it only as applied to the petition, and assuming it is justified by the evidence, we think that if it were only a converse to oppose a single essential fact it would be proper. Liebow v. Jones Store Co., Mo., 303 S.W.2d 660; Campbell v. Evens & Howard Sewer Pipe Co., Mo.App., 286 S.W.2d 399; Frechin v. Thornton, Mo., 326 S.W.2d 122; Oshins v. St. Louis Public Service Co., Mo., 254 S.W.2d 630.

But one may not, under the guise of a converse instruction, direct a verdict upon a finding in respect to one particular issue and in so doing exclude all other factual issues upon which a verdict might be returned (Willard v. Bethurem, supra, 234 S.W.2d 18), or pick up and eliminate an essential element by means of a “catch-all” phrase. Ritchie v. Burton, Mo.App., 292 S.W.2d 599. Nor may an instruction single out a particular fact and give it undue prominence in discrimination of other facts on the same issue, even though the instruction be a correct statement of the law. Spalding v. Robertson, 357 Mo. 37, 206 S.W.2d 517, 523; Shaffer v. Sunray Mid-Continent Oil Co., supra, 336 S.W.2d 102, 108. Nor may one so constrict his verdict-directing instruction as to make it in conflict with other instructions.

It is to be noted that instruction 5 does not specifically charge Hazel Scott with negligence. It hypothesizes and directs a verdict upon only the fact that the driver of defendants’ car saw the plaintiff’s car on its wrong side of the road. It may be understood from that that Hazel was on the wrong side of the road (how far and how long?), but in view of the evidentiary showing in respect to the center wheel tract (which possibly both parties used) and the rough road, we think there is some doubt as to whether this being on the wrong side of the road automatically pointed to negligence as a matter of law on the part of Hazel. Of course, negligence of Hazel Scott was an essential element of Geraldine’s recovery on her counterclaim. We think it should have been specifically charged.

We note also that instruction did not negative or refer in any manner to the care or negligence of Geraldine, the owner of the car. Appellants say that this and other objections are cured by plaintiff’s instruction 8 on imputed negligence. Omissions of essential elements in a verdict-directing instruction cannot be cured if they make the instruction conflict with other instructions.

All instructions are to be read and construed together (McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37, 40; Johnson v. Flex-O-Lite Manufacturing Corp., Mo., 314 S.W.2d 75), and the test of interpretation is how an ordinary man would understand them. Lewis v. Zagata, supra, 166 S.W.2d 541, 545; Spritz v. St. Louis Public Service Co., Mo., 341 S.W.2d 790, 793. We believe that a jury reading this instruction 5 could well believe that if the facts were that Hazel Scott was on or partly on her wrong side of the road when the defendants’ car came over the crest of the hill on their right side of the road, and it looked as though a collision might occur, and defendant Jerry turned to the left to avoid a collision, but it did occur, then Geraldine was entitled to a verdict on both the petition and the counterclaim regardless of all other issues which were involved. We do not believe that this is the idea which the defendants’ lawyers had, diligent as they were in the utmost care to protect their clients, but this is the way the jury could have understood it.

It is frequently stated that the appellate court in passing upon the question of whether the trial court committed error in the granting of a new trial will be more liberal in affirming the action of the trial court than they would be had the questions involving such claim of error been presented to them for reversal or remand. Shaffer v. Sunray Mid-Continent Oil Co., supra, 336 S.W.2d 102; Trump v. Ballinger, Mo., 317 S.W.2d 355.

Because of error in the giving of instruction 5, we find no error in the court’s action in granting a new trial. Since we have so decided, there is no need of any involved discussion of instruction 4. We have already indicated that some of the disabilities here mentioned may apply to it. These questions have been pointed out in the briefs, and no doubt upon retrial the same questions will not arise. But since the case is to be retried we are constrained to call attention to one other thing concerning which no point has been raised. Instruction 4, after having already hypothesized that defendants’ car was on its right (east) half of the road, then interjected the statement that it “reasonably appeared to Defendant Jerry Nash, who was on the proper side of the road, * * *” We realize that this was held not to be error in the Zagata case, but the facts are not exactly the same. Although we here make no holding in respect to that statement, it might, if inserted in some later instruction in the same manner, be interpreted as susceptible of being understood as a comment or expression of opinion by the court. The defendants can avoid any possible question by rephrasing the statement.

The judgment is affirmed and the cause is remanded.

McDOWELL and STONE, JJ., concur.

      . Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Jones v. Hughey, Mo., 283 S.W.2d 550; Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749; Boatright v. Bruening, 363 Mo. 494, 251 S.W.2d 709.

      . Although a verdict upon a conjunctive submission may be upheld or “tolerated” even though the evidence may not sustain some particular portion of the submission. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Lindquist v. Kansas City Public Service Co., 350 Mo. 905, 169 S.W.2d 366.

      . Sauer v. Winkler, Mo., 263 S.W.2d 370; Dell’Aria v. Bonfa, Mo., 307 S.W.2d 479; Willard v. Bethurem, Mo.App., 234 S.W.2d 18; Harris v. Rowden, Mo., 305 S.W.2d 25; Wiseman v. Jackson, Mo.App., 309 S.W.2d 356; see Jones v. Hughey, Mo., 283 S.W.2d 550.

      .Raymond, Missouri Instructions to Juries, vol. 1, § 125; Banta v. Union Pacific Railroad Co., 362 Mo. 421, 242 S.W.2d 34, 42; Elmore v. Illinois Terminal Railroad Co., Mo.App., 301 S.W.2d 44; Hatfield v. Thompson, Mo., 252 S.W.2d 534.