author: BARRETT, Commissioner.

text:
    Ralph JEFFRESS, Plaintiff-Respondent, v. Dora PIATT, Matthew Piatt, Lucille Piatt, Lowell Mooney, Carol Ann Mooney, a Minor, Mary Jane Mooney, a Minor, and William Mooney, Defendants-Appellants.
    No. 49801.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.

      Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, for appellants.
    Claude Arnold, Dexter, for respondent.
   BARRETT, Commissioner.

This action originated when Ralph Jef-fress instituted a partition suit in which he alleged that he and the defendants as tenants in common each owned an undivided one-half interest in a 57-acre farm in Stod-dard County and seven lots in Bernie. Admittedly, their title to the property came about in this manner: The title to all this property was in S. A. (Sadie) Piatt and on December 27, 1932, she conveyed it to Lottie Jeffress and William Piatt as tenants in common. William Piatt died December 16, 1942 and Lottie died July 19, 1960. The plaintiff, Ralph Jeffress, is Lottie’s son and surviving heir, and the •defendants are the surviving heirs of William Piatt. In response to the action in partition the defendants first filed an answer and counterclaim in which, from December 1942 to July 1960, they admitted their tenancy in common with Lottie Jeff-ress. They asserted, however, that after William Piatt’s death in 1942 Lottie went into possession of the property and throughout the years collected all the rents and profits from the property but made no accounting to the defendants, her coten-ants, and therefore they prayed an accounting and the establishment of a lien on the real estate for their proportionate share of the rents and profits. Subsequently in an amended answer and counterclaim the defendants asserted that after the death of William Piatt, then tenant in common with Lottie Jeffress, Lottie “entered into an agreement zmth the defendants by the terms of which said agreement it was agreed that the said Lottie Jeffress should have the enjoyment, use, possession and rents from all of said property except a house located on one of the lots in the City of Bernie, and that in consideration for the use, rents and profits thereon, the said Lottie Jeffress did agree that at her death, all interest in said property would be left to the defendants herein, as their sole property.” Except for one house and lot in Bernie, it was alleged that Lottie, until her death in 1960, retained all the rents but failed to execute a will or deed pursuant to the agreement and therefore the defendants now claim to be the owners in fee simple of at least the 57-acre farm. The plaintiff, Ralph Jeffress, by reply denied that there was any such oral agreement. He alleged laches and asserted that “any relief sought * * * by reason of said alleged agreement did not accrue within ten years” and was therefore barred by the statute of limitations. Furthermore, he asserted that any claim for rents was barred by the five-year statute of limitations.

Upon the trial of the cause the court, found that the plaintiff and the defendants were tenants in common of the “real estate herein described” and accordingly decreed partition by sale and division of proceeds. But “(t)he court further takes up the matter in controversy upon Defendant’s Counterclaim and upon the pleadings and evidence adduced * * * doth find that the Defendants are not entitled to recover upon their Counterclaim.” The defendants have appealed and contend, first, that the court erred in failing to find and decree that by reason of the oral agreement they were the fee simple owners of the real estate and failing in that they assert, second, that the court erred in failing to find that they were entitled to one-half the rents since 1942 and therefore, of course, erred in not requiring, an accounting and accordingly a lien on the property for their share in the rents.

As to the alleged “oral contract to devise realty,” as it is called in the appellant’s brief, this substantially is all the evidence: A real estate agent in Bernie testified, “around two years ago, two or three, I wouldn’t say the exact date,” that Lottie was at his home one evening and he inquired whether she would be interested in selling the farm. But she said she couldn’t, “She said all she had was a lifetime dower on the place and she couldn’t sell it.” Matthew Piatt, son of William Piatt, nephew of Lottie, one of the defendants said that after Lottie’s funeral “Ralph (the plaintiff) made the remark he would like to have the farm, wanted to know if he could make a deal for the farm.” But testifies Matthew, “I said, ‘You know the farm was to go to our side of the family at Aunt Lottie s death, she’s had the rents all these years.’ He said, T know, I know, but give me till the first of the year to think about it.’ ” Winnie Piatt, wife of Matthew, said that two or three years ago, “Must have been in the spring,” she had a conversation with Lottie about crops and income “and her mother’s little rent houses, and she said, ‘Through the generosity of the Piatts I’ve had as much as I’ve had to live on through the years.’ She said that when her mother died there was just she and Mr. Piatt, and at his death, the Piatt family upon an agreement with her, that she could have all the income from the farm as long as she lived — . * * * And at her death it was to go to the Piatt family, because she had received it all through their generosity.” She said, “The agreement was made after Mr. Piatt’s death, by Mrs. Jeffress and the family. * * * She told me that sitting in my room, that they had given her the rent all those years and at her death the farm was to go to them.” Grover Crow who had farmed the land as a tenant for over 30 years said that after Sadie’s death he went down to see about renting the farm “And during that time they (Lottie and Will) said just go ahead and pay Will the rent, and later on I talked to them and they both told me that they had an agreement they wasn’t going to sell that, that they was dividing 50-50 with the rent, and at their death, either one of them, the one that died first, the other would receive the rents off of the farm until their death, then it would go to the heirs.” This conversation, he said, “That must have been in ’39, I believe it was, and he said which one died first the other would collect the rent on it until their death, then it would go to their heirs. * * * Lottie’s heirs and his heirs, Will’s heirs.”

This oral understanding or agreement, particularly as testified to by the tenant Crow, is obviously not the oral contract asserted in the defendants’ pleadings. This, referring again to the pleadings, is the contract asserted by the defendants, “Shortly after the death of the said William M. Piatt, the said Lottie Jeffress, then tenant in common with the defendants in ownership of said lands entered into am. agreement with the defendants * * As the court said in the leading case of Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, “With the foregoing as the contract, let us, as with a yardstick, measure the evidence. * * * This does not sustain the contract pleaded.” It is not claimed here, as is often the case, that there was an agreement to devise as compensation for services (Annotations 69 A. L.R. 14, 106 A.L.R. 742), and, of course, the case is not comparable to an action for specific performance of a contract for reciprocal wills as in Finn v. Barnes, 340 Mo. 445, 101 S.W.2d 718. Admittedly, parties may make a valid oral contract to will their property and the contract may be established by circumstantial evidence but the circumstances must indeed be clear, cogent and convincing. Bealmear v. Beeson, (Mo.App.), 303 S.W.2d 690, 694. The real estate agent did not purport to testify to a contract or even to an oral understanding. Matthew did not testify, as pleaded, to a contract between Lottie and the defendants, he only said that Ralph apparently acquiesced in his statement that “the farm was to go to our side of the family.” The contract as testified to by Matthew’s wife was most indefinite and vague, and as to all the proof, it “rests wholly in parol. The time of making the contract does not appear. Its terms are not established, but appear solely from alleged declarations of deceased persons about the contract. These declarations are not entirely consistent. They suggest different terms.” Shaw v. Hamilton, 346 Mo. 366, 380, 141 S.W.2d 817, 822, 823. And finally, as the court also said in Shaw v. Hamilton, the nature and terms of the alleged contract “were not established with definiteness by satisfactory and convincing evidence.”

In answer to interrogatories the plaintiff stated that after William Piatt’s death his mother collected “gross farm income” of $19,351.89, that there was fertilizer expense of $937.44 and $1,379.04 taxes. As to house expense there were repairs of $427.-25 and taxes $291.19. The court made only a general finding that “Defendants are not entitled to recover upon their Counterclaim.” In support of this finding the respondent Jeffress makes these claims (a) that since Lottie “did not oust or exclude her cotenants and since there was no proof of an agreement on her part to pay them rents for her occupancy of the premises; this plaintiff cannot be held liable to the appellants therefor,” (b) that since plaintiff made no claim for taxes, improvements or other payments by Lottie the defendants are not entitled to an accounting or to an equitable lien, and (c) that if an accounting is appropriate the five-year statute of limitations applies to the claim. In support of these three specific points the respondent relies on these cases, Goforth v. Ellis, (Mo.), 300 S.W.2d 379; Beckham v. Eggleston, (Mo.App.), 341 S.W.2d 337, and Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461. These cases illustrate the general rules asserted by the respondent but they are not applicable to this case. It is not necessary to examine these cases and point out the distinctions. In addition to these cases there are also Hahn v. Hahn, (Mo.), 297 S.W.2d 559, and Richardson v. Kuhlmyer, (Mo.), 250 S.W.2d 355. It is sufficient for the purposes of this appeal to say that those cases and the principles they announce are obviously not applicable to the claim for an accounting for rents made here.

Over the years Mrs. Jeffress collected rent, perhaps from Grover Crow, or rented the farm, if not some of the lots, to third persons, the farm rent totalling $19,351.89. In this situation in this action in partition the applicable principle is this: “It is ordinarly true that one tenant in common can not recover from another, rent or compensation for the use by him of the common property. The property in contemplation of law is free to all, and each may enter and enjoy his rights, but where neither occupies the property for his own use and one rents it or any part of it to third persons and collects the rents, or where one, as in this case, denies the right of the other to a part thereof, and thereby pro tanto ousts the other, the rule is otherwise, and an accounting may be had in a suit for partition if there is anything due at the time that suit is begun and such relief is asked at that time, or a suit in equity for an accounting will lie after the termination of the partition suit.” Bates v. Hamilton, 144 Mo. 1, 13, 45 S.W. 641, 643. This rule and its rationale is more fully explored in Beck v. Kallmeyer, 42 Mo.App. 563; 86 C.J.S., Tenancy in Common § 47, p. 412, and the Annotations 27 A. L.R. 184, 51 A.L.R.2d 388, 48 A.L.R.2d 1305.

There is of course a glaring inconsistency in the defendants’ original claim that Mrs. Jeffress was to have the rents for life and their present or alternative claim for an accounting. But the circumstances were not fully developed, no doubt the defendants had full knowledge of Lottie’s rent transactions but as the record now stands it may not he said that “The case discloses every element of an estoppel by laches.” Ryan v. Gorman, (Mo.) 183 S.W. 594, 597. Also with the record in this posture it is not necessary to say whether the statute of limitations is applicable and a bar to any part of the claim for rents. But in general see: Henry v. Steward, 363 Mo. 213, 219, 250 S.W.2d 527, 530; 53 C.J.S. Limitations of Actions § 7, p. 927; 54 C.J.S., Limitations of Actions § 124, p. 34.

In short, the defendants’ claim to an accounting of rents may not be denied for the reasons now asserted by the plaintiff. The plaintiff did not press the claim for taxes or other expenses, he offered some evidence, the testimony of a banker, indicating that in some manner his mother had accounted for certain rentals but the permissive inferences are vague. Upon the record as it now stands this court may not with confidence dispose of this phase of the litigation or render an accurate accounting and, therefore, the judgment is reversed and the cause remanded for such further proceedings as the parties deem necessary and appropriate.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges Concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Samuel W. HARP, Respondent, v. ILLINOIS CENTRAL RAILROAD COMPANY, a corporation, Appellant.
    No. 49743.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 9, 1963.

      Arnot L. Sheppard, Gentry, Bryant & Sheppard, St. Louis, for appellant.
    Gray & Jeans, Charles E. Gray, St. Louis, for respondent.
   STOCKARD, Commissioner.

The Illinois Central Railroad Company has appealed from a judgment in the amount of $86,000 in respondent’s action for personal injuries under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.

Respondent, a locomotive engineer for Terminal Railroad Association of St. Louis, delivered a train of railroad cars to the freight yard of appellant in East St. Louis, Illinois, and left the cars at the designated place. He then moved the diesel engine onto appellant’s track number 6 and stopped. .While standing still with the brakes set thé engine was struck from the rear by three freight cars under the control of appellant with such force that it moved about 30 feet. Respondent’s suit was based on injuries allegedly sustained in this collision.

Appellant admits the occurrence of the above incident, but it challenges the sufficiency of the evidence to support a finding of “proximal causal connection” between the collision and respondent’s alleged injuries.

Respondent was seated on the engineer’s seat in the engine looking toward the front. With him in the cab were Charles Palmeri, the fireman, and Robert Cusak, a switch-man. Respondent testified that as a result of the collision he “was thrown and bounced around in the cab” and, in his language, when I came to myself I was lying backwards out the side window, that is the engineer’s window.” In describing what happened, Mr. Palmeri stated that as he was “being scooted off of this seat box,” apparently as the result of the collision, respondent “was leaning up against the back rest there on the engine, more or less just like twisted him all around and then threw him forward and then backward.” On cross-examination Mr. Palmeri was asked if he said that respondent was knocked forward, and he replied: “Well, the way the impact was he was knocked forward and more or less kind of twisting him around in the seat to where his hack was up against the side where you rest your arm * * Respondent immediately complained of pain and he said that he had no feeling in his left arm. He testified that when he struck the window he suffered pain “through my neck down into my back,” in his left shoulder and arm, and into both legs “but mostly in the left and across my lower back.” The fireman stated that immediately after the collision respondent had three “marks” on his back, two of them on the left side and one “just about on the spine.” Following the collision the fireman operated the engine and returned it to St. Louis, and respondent sat on the fireman’s seat and “kept more or less trying to get circulation through his hand and arm.” When respondent got off work he went directly to the Missouri Pacific hospital where he was given a “capsule” to relieve his pain. He remained at the hospital for approximately two weeks, and while there he was given “whirl bath treatments” and medication. After his discharge he had “terrific headaches,” he had pain in his lower back, and his legs still bothered him. He returned to the hospital twice a week for several weeks for “some heat treatments and vibrating treatments.” On April 23, the day following the collision, respondent was examined by Dr. Joseph A. Lembeck, who was “in charge of orthopedic work of bone and joint surgery” at the Missouri Pacific Hospital. It was Dr. Lem-beck’s opinion that respondent had a “low back strain, that is a lumbar strain, and he had a neuritis of the left ulnar nerve of the left arm.” At the time of this examination respondent had red marks on his back and was suffering acute pain. In June 1961 respondent went to Dr. Jacques Paul Schaerer who examined him, and after various tests the doctor concluded that respondent’s pain was “produced by the disc, as demonstrated in the discogram [a test he had made], between 1-5 and S-l,” and also that in his neck area “there was a disc injury at the level of C-5-6.” Dr. Schaerer testified that his examination revealed muscle spasm in the lumbo sacral region, that back movements resulted in pain, that there was some limitation of neck movement, and that there was numbness over the little fingers of the left hand extending into the lower third of the forearm. He further testified that discograms and myelograms made by him showed a ruptured disc at the level of C5-C6 and at L5-S1. On July 3, 1961 a laminectomy was performed by Dr. Schaerer for the removal of the L5-S1 ruptured disc, and a revision of this laminectomy was performed on July 20. In the course of his testimony Dr. Schaerer testified at length concerning his methods of examination and treatment of respondent, the cause of a rupture of a disc, its effect, and the technique of correction by the performance of a surgical operation. A hypothetical question was submitted to Dr. Schaerer in which he was asked to assume, among other things, that on April 22, 1961 respondent was involved in an accident as previously described herein; that respondent was “thrown around” and when “he ended up he was leaning with his back up against a metal window;” that immediately thereafter he started suffering pain in his low back with some pain down his left leg, pains into the neck and left shoulder and arm; and that immediately thereafter he was hospitalized and his condition was diagnosed as acute lumbar sprain and cervical sprain, and that he was given treatment in the form of “whirlpool baths.” The doctor was then asked to take into consideration the findings he made when he examined and treated respondent, the myelographic and discographic studies he had made, the operation he had performed, and the findings made by him at the time of the operation. He was then asked if he was able “to give us an opinion * * * based upon reasonable medical certainty * * * as to what injuries, if any, Mr. Harp sustained in the accident” referred to and assumed in the hypothesization of facts. In answer to this question the doctor stated “It is my opinion that [respondent] has sustained (a) an injury to the cervical spine consisting of a ruptured disc at C-5-6 and (b) an injury to the lumbo sacro area consisting of a ruptured disc at L5-S1.” Following this the doctor was cross-examined at length concerning his findings and the basis for his opinion.

Appellant’s contentions in its first point, in substance, are as follows: (a) respondent’s injuries are such that a layman cannot draw any conclusion with respect to proximate cause and therefore in this case it must be established by expert medical testimony, and (b) the opinion expressed by Dr. Schaerer did not have sufficient factual basis to constitute substantial evidence of cause and effect and it established no more than a probability. In its second point appellant challenges the opinion of Dr. Schaerer as to the “causal connection between the collision and plaintiff’s sore back” because (a) the hypothetical question does not present “substantial facts which are of such probative value as to give his opinions any worth,” and the opinion therefore is a non sequitur and no more than a mere theory and guess wholly unsupported by any probative facts, and (b) the opinion was “based ‘exclusively’ upon history of the occurrence as given to him by plaintiff.” Contention (b) under point one and contention (a) under point two are substantially the same.

We agree that the cause of those injuries of respondent described in the evidence, under the circumstances of this case, are complicated matters not within the understanding of ordinary jurors, and that whether a submissible case was made as to proximate cause depends upon the sufficiency of the opinion evidence of Dr. Schaerer. This disposes of what we have designated as part (a) of appellant’s first point. Before considering the contention that the opinion of Dr. Schaerer did not constitute substantial evidence of proximate cause we should first set forth certain basic rules concerning the use of opinion evidence.

As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge to invade the province of the jury. Schears v. Missouri Pacific Railroad Company, Mo., 355 S.W.2d 314, 321; Christian v. Jeter, Mo., 287 S.W.2d 768. There is no question but that proper opinion testimony as to causal connection is competent and can constitute substantial evidence. Dorsey v. Muilenburg, Mo., 345 S.W.2d 134, 138; Schaefer v. Rechter, Mo., 290 S.W.2d 118; Ketcham v. Thomas, Mo., 283 S.W.2d 642; Waterous v. Columbian Nat. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456, 459; Glowczwski v. Foster, Mo.App., 359 S.W.2d 406. However, the expert’s opinion must not be a mere guess or conjecture but must be based upon facts and adequate data, and the opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844; Schaefer v. Rechter, supra; Kimmie v. Terminal R. R. Ass’n, 334 Mo. 596, 66 S.W.2d 561. If the expert witness does not have personal knowledge of those facts he must be asked by use of the hypothetical question to assume the truth of them. Schears v. Missouri Pacific Railroad Company, supra; De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 82 A.L.R. 1331.

In this case Dr. Schaerer testified at length concerning respondent’s condition as determined by him from examinations, tests, and surgery. In the question to which he gave his answer in the form of an opinion he was asked to take into consideration those facts as determined and testified to by him, and also to assume the truth of certain other facts of which he did not have personal knowledge but which were otherwise established by competent evidence. The reasons advanced by appellant why it believes the opinion of Dr. Schaerer lacked sufficient basis are as follows.

First. Appellant says that the fireman testified that respondent was knocked forward as a result of the collision, but that “this is a physical impossibility” and “by the incontrovertible law of physics” respondent would have been thrown backwards by the collision “if thrown at all.” The conclusion then is drawn that “since this evidence cannot possibly be accepted, it leaves unknown just what happened to plaintiff prior to the time he was leaning backward out of the cab window.” We do not agree with appellant’s summary or statement of the evidence. When the engine was hit by the freight cars it moved forward with respondent in it. Therefore, respondent was knocked forward. He was sitting on a seat that rotated,, and unless it was precisely in line with the direction of movement the seat would have turned as a result of the collision. This is in substance what Mr. Palmeri said on cross-examination. However, the important fact is that as the result of the collision respondent was thrown about in the cab of the engine and that he landed on his back in the window with sufficient force to cause red marks on his back and to result in some injury.

Second. Appellant asserts that “backward bending of the back is not the classic movement to create disc trouble” and we therefore are left with no explanation of how a protruding disc could result from a backward bending of the spinal column. Dr. Schaerer testified that ordinarily “a great deal of force” is necessary to rupture a perfectly normal disc and that it usually results from a forward bending. He also testified that it could occur from “any excessive motion in the spinal column” including motion “sideways, backwards or forwards.” He explained in detail how such an injury could result from movement other than forward bending, and in doing so he presented to the jury a demonstration with a plastic model of a human lumbar spine. This contention is without merit.

Third. Appellant asserts that the opinion was insufficient because it was based “ 'exclusively’ upon the history of the occurrence as given to him by respondent. We must review the background of the evidence. After Dr. Schaerer had given his opinion in reply to the hypothetical question asked on direct examination, he was cross-examined at length concerning the basis for that opinion, and the following occurred:

“Q. * * * Now am I correct in saying that you are basing that [the opinion that the collision brought on the symptoms] on the mere fact that that [collision] occurred, no matter how it affected him physically at the time, is that right or not?
“A. Well, I guess that is correct, because nobody can tell me what happened exactly. Yes, that is correct.
“Q. And you are basing your opinion exclusively upon what he told you about it.
“A. Yes, of course.
“Q. You weren’t there?
“A. That’s right.
“Q. So your opinion is based on what he told you about what happened on that occasion ?
“A. Yes.”

Appellant seizes upon this testimony and asserts that the opinion of Dr. Schaerer was based exclusively upon the hearsay statements to him by respondent. However, the reference to what respondent told the doctor pertained only to the facts of the collision and that was but a small part of the total hypotheses of facts. There is nothing in the record to indicate that what respondent told the doctor was any different from the facts hypothesized in the question upon which he based his opinion. It is true that it has been held consistently, and properly so, that a physician may not base an opinion on the previous history of a case as received from the patient because such a history is within the hearsay rule and for that reason is not a proper foundation. Schears v. Missouri Pacific Railroad Company, supra. But, it has also been held that “If * * * the so-called ‘history’ is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such ‘history’ [by the expert witness in forming his opinion] must fall.” Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780, 782; Huffman v. Terminal Railroad Association of St. Louis, Mo., Mo., 281 S.W.2d 863, 871; Hunter v. St. Louis Southwestern Railway Company, Mo., 315 S.W.2d 689. The Schears case, upon which appellant primarily relies, cites these cases and quotes from some of them with approval. The prejudicial error in the Schears case was that the expert medical witness recited to the jury the hearsay statements made to him by the plaintiff in an attempt to bolster the proof of those disputed but essential facts. That did not occur in this case. Assuming, therefore, that the opinion of Dr. Schaerer as to the occurrence of the collision was based “exclusively" on what respondent told'him,, as far as is shown by the record those facts were precisely the facts otherwise established by competent evidence and submitted to the doctor in the hypothetical question. The record does not demonstrate prejudicial error in this respect.

Fourth. Appellant asserts that the “first hypothesis of any consequence” in the question to which the opinion answer was given is that respondent was required to “climb on and off” the locomotive, and that the third hypothesis is “that plaintiff will have to walk out on the tracks to get his engine.” Appellant asks, “Where is the evidence that plaintiff cannot do so?” It may be true that the two hypotheses now challenged by appellant were unnecessary and surplusage, but appellant made no objection on that basis. The fact that there was no evidence that respondent could not climb on and off the locomotive and could not walk out on the tracks is totally without merit. The question is, was there evidence that in the performance of his duties re-spondent was or would be required to do these things, and there obviously was.

Fifth. Appellant next says that the “second postulate” is that plaintiff was sitting in his engine with the brakes set at the time of the collision and that it was moved about 30 feet by the collision, but that “There are no supporting facts whatever shown in this record but merely that the engine was moved about 30 feet by the collision.” If appellant means by this roundabout assertion that there was no evidence that plaintiff was in the cab of the engine or that the brakes were set it is entirely in error. Appellant argues that the “fact alone,” referring to the fact that the engine was moved about 30 feet by the collision, “will quite obviously not warrant the conclusion of a causal connection between it and plaintiff’s bad back, since the evidence discloses further that both the fireman and a switchman were in the locomotive and it does not show that either of them sustained any injuries of any consequences.” We agree that the fact alone that the engine was moved 30 feet would not support the opinion of the doctor,, but plaintiff does not rely on that fact alone. The fact that others in the cab were not shown to have sustained injuries of any consequence as the result of the collision is immaterial. We can well imagine the objection of appellant if evidence of such injuries had been offered by respondent as proof that he was injured, as appellant’s argument implies would have been proper.

“The facts upon which an expert’s opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of substantiality and probative force, and ‘The question whether such is based on and supported by sufficient facts or evidence to sustain the same is a question of law for this court.’ ” Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844, 849. However, it is not our function to weigh the evidence. Craddock v. Greenberg Mercantile, Mo., 297 S.W.2d 541, 549. The latitude of courts in considering medical opinion as substantial evidence of causation is demonstrated in Schaefer v. Rechter, supra, 290 S.W.2d at p. 123, by the numerous cases there cited. The reasons advanced by appellant do not demonstrate that the opinion, as a matter of law, was not based on and supported by substantial evidence, and for us to say that in no circumstance could the injuries of respondent have resulted from the collision would amount to us substituting our judgment for that of a medical expert. We also note that appellant’s expert medical witness did not testify that the fates were such that he, as an expert, could not express an opinion. Instead, he testified that in his opinion “what had happened” to respondent was that he “had a low back strain, that is a lumbar strain, and he had a neuritis of the left ulnar nerve of the left arm.” It thus appears that the two medical experts differed in their opinions, not an uncommon occurrence, and we find no error in the respects contended by appellant.

Appellant also challenges a second hypothetical question to which Dr. Schaerer answered that in his opinion respondent could not at the time of trial perform the work of an engineer on a diesel locomotive. A further statement of what occurred is required.

In answer to a hypothetical question Dr. Schaerer stated, without objection, that “from the findings of my last examination of the patient, I do not believe that he is able to do this type of work,” referring to the work that respondent normally performed before his injury as an engineer of a diesel engine engaged in switching operations. On cross-examination the doctor admitted that his opinion was based on the assumption that respondent would sustain “severe jolts.” Upon motion of appellant his answer in the form of an opinion was stricken out and the jury was instructed to disregard it. On redirect examination respondent then submitted to the doctor another hypothetical question in which he was asked to assume that an engineer is required to ride on an engine of the character and type shown by an exhibit which was shown to the witness; that he is required to sit on a seat shown by two exhibits which also were shown to the witness; that in doing his work he looks out and has a view forward, and is sometimes required to look to the rear to see what is back there; he is required “to move around and receive signals from switchman,, receive signals from switches that are on the road bed, look around, see that the track is clear before he moves, watch ahead to see if any people are on the track, workmen crossing and so forth;” that sometimes the engine would be going forward and sometimes backward; that in making couplings “he is required to be on the engine when it couples, two metal bars going together, going up to the speed— moving — let’s just have it barely moving, so that you can make coupling into the cars;” that when stopped the cars sometimes move into the engine from behind, that “in riding on the engine * * * he would get a jolt at least as strong as you would get riding in a pullman seat;” and that he has to walk across the tracks to his train, and has to climb on and off of it. At the conclusion of this question appellant objected “unless counsel includes the hypothesis that this seat [in the cab of the engine] that he is sitting on revolves and that he can turn around and look out through the back end of the cab while looking straight ahead without twisting himself around.” Counsel then included the hypothesis requested, and the doctor was asked whether in his opinion respondent could do that work. The reply was: “Taking into consideration both conditions, the neck and the low back, I do not believe so.” No objection whatever was made to the question as amended or to the answer as given. However, the following day after the doctor had been excused as a witness, counsel for appellant then moved for the first time to strike the opinion of the doctor “with respect to plaintiff’s ability to operate a locomotive now and in the future” because “the doctor testified that it required a lapse of one year’s time before it can be determined how effective the disc operation was and it has not been a year, but only about six months [this reason is not presented on this appeal], and second that his forecast was in reality no more than a medical guess and not a reasonable medical certainty, and, therefore, there was no basis for his opinion with respect to ability to operate a locomotive.” We note that the doctor was not specifically asked, in arriving at his opinion, to take into consideration the facts found by him to exist as the result of his personal examination of respondent, but the answer of the doctor clearly indicates that he did so.

In its brief appellant asserts that Dr. Schaerer’s opinion as to respondent’s ability to resume his work as a locomotive engineer “cannot be accepted as proof” because (a) the doctor admitted that “his opinion on that point was just as likely to be wrong as to be right” and was no more than an “educated opinion” which reduced the opinion to a “might or could” situation, and (b) the hypothetical question did not present substantial facts which are of such probative value as to give his opinions any worth.

As to the first contention, appellant relies on certain testimony given on cross-examination after the first opinion of the doctor concerning the ability of respondent to work as an engineer had been stricken out and before the hypothetical question was asked to which the second opinion was given. Therefore, the cross-examination apparently was directed to the opinion of the doctor as to the cause of respondent’s injuries. Appellant cross-examined the doctor at considerable length as to what he understood by the term “reasonable medical certainty,” and the doctor stated that it was less than “absolute certainty,” and that in reference to doctors it meant “that we are not God. * * * It means we are just human and to commit error is human. * * * Within the limitations of our knowledge, which is always possible of error. Within that limitation it is reasonably certain,” The following then occurred :

“Q. Well, as a matter of fact then, you. are just expressing an opinion.
“A. Yes. Certainly.
“Q. And you are just as likely to be wrong as right?
“A. That is true for anything we do.
“Q. Isn’t that true in forecasting the future ?
“A. That is correct.
“Q. No man alive can say with certainty that another man whom he has treated will or will not be able to do certain things in the future, can he?
“A. Of course.
“Q. So, as a matter of fact, what you are expressing might be termed an educated guess, isn’t it ?
“A. Educated opinion, yes.
“Q. Well, isn’t it a guess you are forecasting something ?
“A. Well, a guess, of course, that is based on certain knowledge, which is better than the next guy’s guess.”

When this testimony is considered in context with the rest of the doctor’s testimony, it does not have the implication appellant obtains by isolating certain phrases. We think that the opinion of an expert witness in answer to a hypothetical question is an “educated opinion,” and it is because of this that it is admissible when it meets the other requirements. The doctor did not testify on a “might or could” basis. He stated that in his “educated opinion” respondent was not able to perform the work required of an engineer, and the answer on cross-examination to the question as to whether he is as likely to be wrong as right, if it can be considered as pertaining to this opinion, must be considered in connection with his testimony concerning the meaning of reasonable medical certainty and that he was not “God”. In other words, the effect of this answer went to the weight of any opinion he expressed and not to its admissibility.

In connection with the contention of appellant that the hypothetical question presented insufficient facts to sustain the opinion, we have this unusual situation. Appellant’s expert medical witness conducted an examination of respondent and lestified on direct examination concerning Ris findings, and that it was his “opinion that the patient [respondent] may resume work as a locomotive engineer.” Respondent’s expert medical witness also examined him, and testified without objection that after “taking into consideration both conditions, neck and low back,” about which he had testified in detail, it was his opinion that respondent could not perform the work of a locomotive engineer. The opinion of an expert medical witness as to whether respondent was able to perform the work of a locomotive engineer should have been premised upon two principal facts; his physical condition and the work he would be required to do. In the hypothetical question submitted to respondent’s expert medical witness, the facts pertaining to his work were hypothesized but in arriving at his opinion the witness was not asked or required to take into consideration respondent’s physical condition. However, no objection was made on this basis and it is obvious from the answer that the witness did take those facts into consideration. When appellant’s expert medical witness expressed his opinion without objection he based it upon his findings concerning respondent’s physical condition, but he was not asked or required to take into consideration the nature of the work to be performed.

Appellant asserts that “all the facts contained in the hypotheses may be admitted as true, and yet they form not the slightest basis for the conclusions reached,” and we think that there is substantial merit to this contention. But, notwithstanding the obvious deficiency of the hypothetical question as submitted, we think that there is no question whatever but that the findings of the doctor as to respondent’s physical condition, which were in evidence, together with the facts hypothesized in the question constituted an adequate factual basis for the answer in the form of an opinion of an expert, and it is obvious from the answer that the doctor did take all those facts into consideration when he expressed his opinion. Therefore, after the answer had been given without objection, it was not then subject to being stricken out on the basis that it was not supported by the substantial facts, which was the only relief sought by appellant at the trial.

In the course of the oral argument counsel for plaintiff was discussing the injury to and condition of plaintiff’s neck, and he made the following statement: “You heard Dr. Schaerer testify as to what his findings were. He would not touch that cervical disc until this man gets — the pain gets so bad that he can’t stand it because it is a painful operation, Dr. Lembeck notwithstanding. That is an operation that individuals will not undergo unless they have to undergo it.” Counsel for appellant objected because “Dr. Schaerer didn’t discuss that at all. He said that the neck was causing him no particular injury and that’s all he said and he quit.” This objection was overruled with the comments that “the jury will remember the evidence” and that counsel for appellant “can take care of that in your argument.” Appellant admits that “under different circumstances” the error might not be held reversible, but it asserts that “in view of the gross exces-siveness of the verdict” it was prejudicial in this case. We think the argument either was or was not prejudicially erroneous regardless of the amount of the verdict.

Dr. Schaerer testified that on June 24, 1961 a discogram was performed at the level of the discs between the fifth and sixth and between the sixth and seventh cervical vertebrae. It was the doctor’s conclusion from this and other tests that “In the cervical area * * * there was a disc injury at the level of C-5-6” and that an X ray disclosed that “this disc,” the one between the fifth or sixth vertebrae, “is bulging into the spinal canal, due to a posterior tear in the disc.” The doctor later referred to this as a “ruptured disc at C-5-6.” He testified that in the course of treatment and after bed rest these conditions “improved to the point where they were not incapacitating and I felt that nothing had to be done at this time about his neck.” The doctor described in considerable detail the method and procedure of performing a surgical operation to correct a disc injury. We need not detail this testimony, but it is sufficient to say that it justified the inference that it would be a painful operation and that one would not willingly undergo such an operation except when necessary.

Appellant relies on Holmes v. Terminal R. R. Ass’n of St. Louis, 363 Mo. 1173, 257 S.W.2d 922. In that case “There was no substantial evidence of a disc injury,” and it was held that an objection was improperly overruled to argument wherein it was stated that “ ‘There is something wrong there, something is wrong with the man’s back * * *. If he has a disc injury to his back it is a serious thing, and if that little nerve is pinched in there it will cause suffering.’ ” Appellant also relies on Watkins v. West, Mo.App., 297 S.W.2d 568. In that case argument concerning injury to plaintiff’s autonomic nervous system was held improper because there was no evidence of such injury. In the case before us there was substantial evidence of injury to a cervical disc, and as previously noted the evidence justified the inference that a surgical operation was painful and of the nature that one would undergo only with reluctance. Counsel is allowed wide latitude in discussing the facts and arguing inferences from the evidence even though the inferences drawn may be considered to be illogical or erroneous. Eickmann v. St. Louis Public Service Company, Mo., 323 S.W.2d 802; Meirotto v. Thompson, 356 Mo. 32, 201 S.W.2d 161, 167. The argument consisted of a proper inference from the evidence, and there was no error in overruling the objection.

Appellant’s final assignment is that the verdict is excessive. In addition to the facts concerning his injuries, as previously outlined, respondent was 44 years of age at time of trial. He had hospital bills totaling $1,933.19 and doctor bills in the amount of $1,700. His loss of wages at the time of trial, based upon what he was receiving at the time of injury, was approximately $11,000. Dr. Schaerer expressed the opinion that respondent could not at time of trial perform the work of a locomotive engineer and that there would be no further improvement, but respondent is by no means totally incapacitated. At the time of his last examination, according to Dr. Schaerer, respondent had “some neck discomfort” which was “not of any severe nature,” he was “walking without limping,” could “walk on heels and tiptoes,” he could bend forward to a point where he touched the lower third of his shin bone with his finger tips, and while Dr. Schaerer said that from the laminectomy there had been “less than ideal results,” and “lumbo sacro mid-line scar was well healed and non-tender.” Muscle measurements of the lower extremities did not show any significant difference in circumstances, but he had some diminished sensation to pin prick in one foot and in a strip-like area extending up the legs, and he had no right Achilles reflex.

Previous disc injury cases in this court since 1950, and the results on appeal concerning damages, are as follows: Hayes v. Wabash R. Co., 360 Mo. 1223, 233 S.W.2d 12. A judgment of $40,000 previously reduced by the trial court from a verdict of $45,000 was further reduced to $37,500. Pinter v. Gulf, Mobile & Ohio R. Co., 362 Mo. 887, 245 S.W.2d 88. A verdict of $45,000 had been reduced by the trial court and this court refused to enforce a further remittitur. Rogers v. Thompson, Mo., 308 S.W.2d 688. A verdict of $40,000 was not reduced by remittitur. Van Norman v. Illinois Central Railroad Company, Mo., 320 S.W.2d 512. A verdict for $62,400 was reduced to $47,400. Greco v. Hendricks, Mo., 327 S.W.2d 241. The plaintiff refused to remit $12,000 from a $32,000 verdict and this court held that there was no abuse of discretion in granting a new trial on the ground that $32,000 was excessive. Kelly v. Kansas City Public Service Co., Mo., 335 S.W.2d 159. A verdict of $36,000 was held not excessive. Chambers v. Missouri Pacific Railroad Company, Mo., 356 S.W.2d 64. A verdict of $38,000 was not reduced by remittitur.

We see no occasion to restate the applicable rules concerning the use of remittiturs in this state. See Myers v. Karchmer, Mo., 313 S.W.2d 697; Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487; Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14. While it has correctly been said that there is no accurate scale for measuring the money value of the damages sustained, Van Campen v. St. Louis-San Francisco Ry. Co., 358 Mo. 655, 216 S.W.2d 443, 449, upon consideration of all the facts of this case previously outlined, and upon comparison of the verdict and injuries in this case to those in the cited cases, and others with injuries of a different nature including Marquardt v. Kansas City Southern Railway Co., Mo., 358 S.W.2d 49; Donahoo v. Illinois Terminal Railroad Company, Mo., 300 S.W.2d 461; Wehrli v. Wabash Railroad Company, Mo., 315 S.W.2d 765, certiorari denied 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304, we are constrained to hold that the judgment is excessive to the extent of $36,000.

If respondent will remit the amount of $36,000 within 15 days, the judgment will be affirmed as of the date of its rendition for $50,000; otherwise it will be reversed and the cause remanded.

BOHLING and BARRETT, CC, concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: CULLEN, Commissioner. PALMORE, Judge

text:
    Clifford A. RICHMOND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 10, 1963.
    Rehearing Denied Sept. 27, 1963.
    Howell W. Vincent, Joseph C. Healy, Covington, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

Clifford A. Richmond appeals from a judgment imposing a sentence of 10-years’ imprisonment and a fine of $500 pursuant to a verdict finding him guilty of the statutory offense of abortion, KRS 436.020(1).

The victim of the abortion, Thelma Mat-tia, died. The only testimony upon the trial tending to connect Richmond with the commission of the offense was that of John Coletta, Thelma’s paramour. The trial court instructed the jury that a conviction cannot be had upon the uncorroborated testimony of an accomplice, but submitted to the jury the question of whether or not Coletta was an accomplice. Richmond’s primary contention on this appeal is that Coletta was an accomplice as a matter of law and therefore the court should have directed a verdict of acquittal.

Coletta’s testimony was that he and Thelma were residents of Ohio; they had engaged in intercourse as a result of which she had become pregnant; she desired an abortion; he had a previous acquaintanceship with Richmond; he took Thelma to Bromley, Kentucky, where they met Richmond in a cafe; he talked with Richmond alone, told him that Thelma wanted an abortion, and Richmond agreed to perform the abortion; Thelma then joined them and after further conversation they went to a house trailer owned by Richmond where Richmond, in one room, attempted to abort the girl while Coletta sat in an adjoining room; the girl paid Richmond $250; the first attempt was unsuccessful and about one week later Coletta again took Thelma to Richmond’s trailer where another attempt was made by Richmond to abort her, with Coletta remaining in the adjoining room. On this second occasion Thelma went into a coma. Coletta took her to a hospital where she died several days later, without having regained consciousness.

We think it is clear that under the standard test for determining whether a person is an accomplice, see Head v. Commonwealth, Ky., 310 S.W.2d 285, Coletta must be considered to have been an accomplice as a matter of law. He aided and abetted, advised and encouraged. So there is no escape from the conclusion that a conviction could not be had upon his uncorroborated testimony unless (1) by reason of the peculiarities of the offense of abortion it can be said that there is a distinction between aiding and abetting the victim and aiding and abetting the perpetrator, or (2) the statute can be construed as expressing a policy that a person who is in the category of an agent of the victim rather than an agent or associate of the perpetrator shall not be considered to be an accomplice for the purpose of testifying.

The generally accepted view is that the woman upon whom an abortion is performed is not an accomplice; that she is a victim rather than an offender. See Peoples v. Commonwealth, 87 Ky. 487, 9 S.W. 509, 810; Annotation, 139 A.L.R. 993. This view most often has been based upon an interpretation of the particular abortion statute as neither in express terms nor by implication making submission to an abortion an offense. It could be argued, then, that merely advising, encouraging, aiding or abetting the woman in her submission to an abortion does not make one an accomplice to the statutory offense. Several cases have expressed that view. See Scott v. State, 10 Terry 251, 49 Del. 251, 113 A.2d 880; People v. McGonegal, 136 N.Y. 62, 32 N.E. 616; People v. Alvarez, 73 Cal.App.2d 528, 166 P.2d 896; State v. Rowley, 216 Iowa 140, 248 N.W. 340. However, the line of distinction becomes exceedingly thin when the person seeks out the abortionist, procures his agreement to perform the operation, and sets up the arrangements. In most cases involving such participation the person has been held to be an accomplice as a matter of law. See Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661, 4 A.L.R. 347; People v. Wilson, 25 Cal.2d 341, 153 P.2d 720; State v. Montifoire, 95 Vt. 508, 116 A. 77; Scott v. State, 10 Terry 401, 49 Del. 401, 117 A.2d 831.

If the actions of the person sought to be classified as an accomplice consist primarily of providing companionship or comfort for the pregnant woman, perhaps a compassionate interpretation of the law would permit a conclusion that he has merely participated in acquiescence in the crime .rather than in its commission, even though the participation included the furnishing of transportation to the place. But if he had gone so far as to seek out the abortionist, procure his agreement to perform the operation, and set up the arrangements, we do not see how it reasonably can be said that he has not aided and abetted in the commission of the crime. We can find no basis in the law for a holding that in order to be an accomplice in an abortion the person must be an associate or agent of the abortionist or that his interests must be on the side of the abortionist rather than of the pregnant woman.

We think the fact that Coletta had a direct personal interest in the abortion’s being performed, since he would have been responsible for support of the child, must be weighed in the balance on the side of his. being considered an accomplice.

Our abortion statute, KRS 436.020, states-that “for the purpose of testifying” the woman on whom the abortion is performed shall not be considered an accomplice. This indicates that the legislature has recognized the difficulty of obtaining proof of guilt in abortion cases, and evinces a policy to limit, in abortion cases, the application of the rule requiring corroboration of an accomplice.. The same practical considerations that induced the legislature to authorize a conviction on the uncorroborated testimony of the woman would suggest that the testimony of an associate or agent of the woman likewise should not require corroboration, at least in cases where the woman has died. But the legislature has said only that the woman shall not be considered an accomplice for the purpose of testifying. We believe it would be an unwarranted exercise of a legislative function for this Court to say that, because of similar considerations of policy, the statute will be construed as including, in its excusal of corroboration, the testimony of an agent or associate of the woman. Actually the statute seems to say, in effect, that the woman’s testimony need not be corroborated even though she is in fact an accomplice. We can find no justification for construing this to apply to other accomplices who acted on the woman’s behalf rather than on behalf of the abortionist.

It is our opinion that Coletta was an accomplice as a matter of law and that corroboration of his testimony was required.

Other contentions of the appellant do not require discussion. However, we shall say that we find no merit in them.

The judgment is reversed.

PALMORE and STEWART, JJ., dissenting.

PALMORE, Judge

(dissenting).

What is now the rule (RCr 9.62, formerly Crim.Code § 241) that a conviction cannot be had on the uncorroborated testimony of an accomplice was at common law merely a “counsel of caution” customarily given by the judge to the jury. It was not binding. The jury was the ultimate judge of the credibility of the witness on whose testimony the prosecution depended. But when in the course of the popular political movement that saw most of the states, by statute or constitution, eradicate the trial judge’s traditional function of advising the jury with respect to the weight of the evidence, in many jurisdictions, including ours, this cautionary practice was made a fixed rule of law. Wigmore suggested, with ample good reason, that the .result is unfortunate, it being “impossible and anachronistic to determine in advance that * * * a given man’s story must be distrusted.” His quotation from Chief Baron Joy, in which the following excerpts appear, is appropriate:

“Why a fixed, unvarying rule should be applied to a subject which admits of such endless variety as the credit of witnesses, seems hardly reconcilable to the principles of reason. * * * The rule applies with equal force to the accomplice who may apprehend but a month’s imprisonment for the most trifling petit larceny, and to him who may reasonably dread death for an atrocious murder. Universal and undiscriminating, the rule levels all distinctions. Where then is the necessity for, or good sense in, such a rule? Why not leave the credit of the accomplice to be dealth with by the jury, subject to such observations upon it from the judge as each particular case may suggest ? * * * That persons whom the interest of the community require, and the principles of sound policy invite to come forward, should not be marked by a rule which has not been deemed necessary in the case of more atrocious offenders not appearing in the character of accomplices, seems to me to be what is required by reason and good sense.”

It seems anomalous that one murderer can convict another on his own testimony, but only if they were not involved in the same murder. The accomplice rule was the exact device by which the top brains of “Murder, Inc.” were able to execute their “contracts” through hired assassins without fear of apprehension and conviction. All the witnesses they left alive were accomplices.

It is my view that the accomplice rule ought to be amended and put back into the form of a precautionary admonition to the effect that if the witness was an accomplice the jurors shall consider that circumstance as bearing on the credibility of his testimony. Contrary to the inference which might be drawn from the majority opinion that this is a legislative problem, the rule now exists only by virtue of RCr 9.62. Hence it is procedural and is the responsibility of this court. But unless and until a majority of the court sees fit to consider modifying it, at the very least reasonable public policy argues against its being given a strict and mechanical construction.

KRS 436.020 abrogates the áccomplice rule when the woman on whom an abortion is performed is the accusing witness. There is, of course, a rule of construction to the effect that by mentioning one thing in a statute the legislature evinces an intention to exclude other things. Again, however, this is but one mechanical rule among many. By equal logic it can be said that in repealing the Code of Criminal Practice in favor of rules to be promulgated by the court the legislature certainly intended to leave to the court the question of whether the testimony of accomplices other than the woman in an abortion case should require corroboration. But this is not .really a matter of specific legislative intent; we all know that the omission of precise matters of application in a statute more often reflects a lack of any “intent” whatever than a conscious purpose to exclude.

Given a reasonable construction, it seems to me that KRS 436.020 expresses a public policy to the effect that an abortionist shall not be allowed to hide behind the accomplice rule. I think it is outrageous that this defendant, who has brought about a woman’s death by performing an illegal abortion upon her person, is now to be set free simply by virtue of a .rule that not only does not represent any fundamental principle, but was of doubtful widsom from its inception —a rule which, in any event, should not and need not be given such a technical application as the majority opinion represents.

STEWART, C. J., concurs in this dissent.

      . Wigmore on Evidence (3d ed.), § 2056.

      . Id., § 2551.

      . Id., § 2056.

      . Id., § 2057.


author: PALMORE, Judge.

text:
    George PHILPOT et al., Appellants, v. Vernon MINTON et al., Appellees.
    Court of Appeals of Kentucky.
    June 7, 1963.
    Rehearing Denied Sept. 27, 1963.

      Calvert C. Little, Ray C. Lewis, London,, for appellants.
    B. Robert Stivers, London, for appellees.
   PALMORE, Judge.

This case involves the same subject matter, but additional named defendants, as the earlier lawsuit brought by the plaintiffs in 1956 and terminated by an unqualified order of dismissal entered on June 4, 1957. We need not consider whether, under the particular circumstances, the non-identity of parties defendant would be fatal to the plea of res judicata, as the defense must nevertheless be denied because it was not shown that the dismissal was an adjudication on the merits. See Blevins v. Johnson, Ky., 344 S.W.2d 375 (1961).

Unless otherwise specified in the order, (1) a voluntary dismissal pursuant to CR 41.01 is without prejudice, but (2) an involuntary dismissal under CR 41.02, “and any dismissal not provided for in Rule 41, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.” In the present instance the order of dismissal recites that it was entered “on motion,” but does not indicate whose motion. Confining ourselves to what the record shows, as distinct from information supplied in the briefs, we are unable to discern whether the 1956 proceeding was dismissed pursuant to CR 41, CR 42, or otherwise. When the basis of an earlier decision is not made clear it cannot operate as res judicata. 50 C.J.S. Judgments § 627, p. 54.

The United Baptist Church of Freedom being a self-governing congregational body, the courts are not authorized to interfere with the will of the majority of its members in regard to the use of the church property except in case of “a radical departure from and disavowal of the established characteristic fundamental doctrines and practices of the society.” Mitchell v. Church of Christ, 221 Ala. 315, 128 So. 781, 70 A.L.R. 71, 74 (1930); Parker v. Harper, 295 Ky. 686, 175 S.W.2d 361 (1943); Bray v. Moses, 305 Ky. 24, 202 S.W.2d 749 (1947). Such a departure must be clear, and may not rest upon “some slight difference of form or practice,” Martin v. Kentucky Christian Conference, 255 Ky. 322, 73 S.W.2d 849, 852 (1934), or “a mere difference of opinion as to the interpretation and application * * * of the articles of faith,” Mitchell v. Church of Christ, supra; Franklin v. Hahn, Ky., 275 S.W.2d 776 (1955).

In this case there is no contention that the doctrines being taught and preached at Freedom Church are in any respect inconsistent with the articles of faith of the United Baptist Church. The dispute in the beginning arose solely over the discovery that Rev. Woods had been ordained as a Missionary Baptist rather than a United Baptist minister. Then, after he had been re-ordained by a presbytery of United Baptist ministers, it developed that one of the essential participants in the ordination ceremony had not been duly and formally authorized by his own congregation to assist in that proceeding. By this time Rev. Woods was, of course,, at the very least a de facto if not 100% de jure United Baptist minister, but out of the seeds of discord there had now flourished a rather ungenerous inquisition into such misfortunes and misunderstandings in his life as might serve to disqualify him because he was not “blameless” and of good repute. Considering the fact that he was of good repute when he came to Freedom Church, the record fairly suggests that in assuming the rule of detractors the appellees have been principal architects of the very disrepute by which they now seek to disqualify and depose him. Be that as it may, whether Rev. Woods is or is not qualified for the ministry according to the standards set forth in the Gospel, it is not at all clear from the literal context of the United Baptist articles of faith that -by its mere acceptance of a minister who is not so qualified a congregation necessarily deviates from the fundamental doctrine of the church as contained in those articles. The answer to that question rests entirely on theological interpretation, in which it appears to us that there is room for reasonable difference of opinion. Hence the issue is not justiciable in the courts and, in this world, a majority of the congregation must be the final judge.

The judgment is reversed with directions that the complaint be dismissed and the appellants be granted appropriate relief on their counterclaim.


author: WILSON, Justice.

text:
    H. E. BUTT GROCERY COMPANY, Relator, v. Bill LOGUE et al., Respondents.
    No. 4190.
    Court of Civil Appeals of Texas. Waco.
    Sept. 9, 1963.
    Rehearing Denied Sept. 13, 1963.
    Jones, Boyd, Westbrook & Lovelace, Douglas Boyd, Waco, for appellant.
    W. Lance Corsbie, Waco, for appellee.
   WILSON, Justice.

Relator’s application for leave to file petition for writ of prohibition is denied.

The motion reflects that in the trial of a personal injury action relator and its agent were defendants, it being alleged by plaintiff that both defendants were negligent in numerous respects. The jury verdict acquitted the agent of negligence, but the jury failed to answer several issues inquiring as to the conduct of relator. The trial court did not order severance, but rendered judgment for defendant agent, declaring a mistrial as to plaintiffs’ action against relator. The court has re-set the cause for trial against relator. It is asserted the evidence on the former trial related only to alleged negligence of the agent, relator’s store manager; and identical inquiries were submitted to the jury as to the negligence of relator and its manager. The subject matter of the action has not been before us previously.

Relator seeks writ of prohibition on the ground the interlocutory judgment rendered “constitutes a judicial estoppel and becomes res judicata of” plaintiffs’ action. There is no showing that any such plea has been presented to respondent district judge, or as to what his action thereon would be.

Although it is said the district court has no jurisdiction, the record reflects no lack of jurisdiction over subject matter or parties. If the writ issued, it would be, in effect, an order sustaining a plea of res judicata. We have no such power. Neither do we have jurisdiction to issue a writ which will have the effect of prohibiting the trial court from hearing and determining such a plea if presented. The action of the trial judge on such a plea, if presented to him, is subject to review by appeal. We may not properly pass upon it in advance, nor issue an extraordinary writ in aid of jurisdiction which is potential only. Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61; Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, 578; Herring v. Houston Nat. Exch. Bank, 113 Tex. 337, 255 S.W. 1097; Gaffney v. Kent, Tex.Civ. App., 74 S.W.2d 176, 179. See Art. 1823, Vernon’s Ann.Tex.St.

The cases relied on by relator, such as Rogers v. Waters, Tex.Civ.App., 267 S.W.2d 582, and Lower Nueces, etc., Dist. v. Cartwright, Tex.Civ.App., 282 S.W.2d 955 are those in which it was sought to reliti-gate issues determined by, or to interfere with the appellate court judgment. Here, our jurisdiction is not involved. Motion denied.


author: MURRAY, Chief Justice.

text:
    Laura CHURCH, Appellant, v. Carl Raymond CRITES, Guardian of the Estate of Eunice Beynon, Appellee.
    No. 14125.
    Court of Civil Appeals of Texas. San Antonio.
    June 12, 1963.
    Rehearing Denied Sept. 11, 1963.
    Phillip E. Hamner, San Antonio, for ap-oellant.

      Moursund, Ball & Bergstrom, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an appeal from an order of the 57th District Court of Bexar County, Texas, dismissing the appeal of Laura Church from an order of the County Court of Bex-ar County, appointing Carl Raymond Crites guardian of the estate of Eunice Beynon. The appeal was dismissed for want of jurisdiction, as the record was not filed in the district court within the thirty-day period allowed by the Rules of Civil Procedure. The only question to be determined is whether the trial court erred in dismissing the appeal.

The judgment or order appointing Crites guardian was signed on August 2, 1962. Notice of appeal by Laura Church to the district court was contained in the order. The record was not filed in the district court until Sept. 24, 1962, some fifty-four days after the rendition of the order. Ap-pellee contends that appellant’s failure to file the record within thirty days after the rendition of the order was fatal to the appeal, and that the trial court could not have done otherwise than dismiss the appeal.

This cause presents a complicated situation. It involves an amendment of the Rules of Civil Procedure which went into effect on September 1, 1962, which was between the time the order containing the notice of appeal was signed and the time the transcript was tendered to the district clerk. The amendment and rearrangement of Rules 332 to 339, inclusive, Texas Rules of Civil Procedure were promulgated by an order of the Supreme Court on April 12, 1962, but not made effective until September 1, 1962, no doubt to give everyone a chance to familiarize himself with the amendments before they went into effect. The record from the county court was presented to the district clerk on September 24, 1962, some twenty-four days after the amendments had taken effect.

Prior to the amendment of September 1, 1962, Rules 336 and 337, read as follows:

“Guardian and Ward
“Rule 336. Notice of Appeal An appeal is taken by causing an entry of notice thereof to be made on the record during the term at which such decision, order or judgment is entered; or, if such decision, order or judgment be made in vacation, by causing the entry of such notice to be made before the close of the next regular term of the court thereafter.”
“Rule 337. Transcript on Appeal • When notice of appeal has been given, the clerk shall immediately make out a certified transcript of the proceedings and send it to the district court of the county; such transcript shall not contain anything that does not relate to the decision, order or judgment appealed from.”

No such language as this is now found in the amended rules. The language of Rule 336 had been construed as perfecting an appeal and giving jurisdiction to the district court simply by the giving of notice of appeal and having it entered of record. Kahn v. Israelson, 62 Tex. 221; Timon v. Dolan, Tex.Civ.App., 244 S.W.2d 987. The effect of these two rules was construed as making the timely filing of the record with the district clerk directory and not mandatory, and therefore not a jurisdictional matter.

The effect of the new rules is to make it the duty of the appellant (formerly it was the duty of the clerk of the county court) to file the record in the district court within thirty days after the signing of the judgment or order in the county court, and to make this requirement mandatory and jurisdictional by the use of the following language of new Rule 336, to-wit: “ * * * but no enlargement of the time for filing the record except as contemplated by this rule, nor enlargement of time prohibited by Rule 5, shall be allowed.” With reference to the rearrangement and amendment of Rules 332 through 339, T.R.C.P., we find following Rule 332 of Vernon’s Texas Rules of Civil Procedure, as such rule was amended by order of April 12, 1962, effective September 1, 1962, the following note:

“Rule 332 formerly dealt with the appeal bond in probate proceedings involving estates of decedents. Its source was Art. 3699. By amendments effective September 1, 1962, Rules 332 to 339, inclusive, are rewritten and rearranged to establish uniform procedures applicable to appeals in both estate and guardianship proceedings. The provisions of Rule 332 are adapted from Rule 3S3. Previous notes regarding original Rule 332 and the 1947 amendment thereto have been deleted.”

Rule 336 as amended provides: “ * * * that upon the filing of a motion in the county court within such thirty day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record, or any part thereof.” Rules 332 through 339, as amended, were in effect on September 1, 1962, and governed any further proceedings in this case.

As was said in Phil. H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, by Justice Pierson, speaking for the Supreme Court:

“This is a procedural statute. It is the settled law that a litigant has no vested right in a remedy, and that remedial statutes are valid and control the litigation from the date they become a law, and all proceedings taken thereafter must be under the new law.
“ ‘It is competent for the Legislature to deprive the courts of their powers under existing law to modify or vacate judgments rendered prior to the passage of the act.’ 12 Corpus Juris, p. 984; Bagby v. Champ, 83 Ky. 13.
“It was said by Chief Justice Willie in the case of Collins v. Warren, 63 Tex. [311] 314:
“ ‘The repeal of a statute leaves unaffected all rights in the nature of contract which have vested under the original statute. Sedgw.Const. & Stat. Law, 113. As to the effect of such repeal upon remedies existing under the former law, some difference of opinion has existed, but the weight of authority seems to be that, without some saving clause contained in the repealing law, remedies existing under the former statute must give way to those provided by the new one. The new law cannot take away all remedies previously existing, but must leave a substantial one according to the course of justice. Dwarris on Statutes, 474; Cooley on Lim. 289.’ ”

When the Supreme Court makes rules it is the exercise of a legislative power under direct grant by the Constitution, and such rules when promulgated and established have all the effect of statutes. Vernon’s Ann.State Constitution, Art. 5, § 25; Vernon’s Ann.Tex.Stats., Arts. 1730, 1731; Brown v. Linkenhoger, Tex.Civ. App., 153 S.W.2d 342.

The proceedings taken in this appeal subsequent to September 1, 1962, are governed by the amended Rules 332-339, T.R.C.P. No litigant has a vested interest in procedural rules, and new rules may be promulgated and put into effect taking away prior remedies, provided that they do not leave a litigant without any substantial remedy. When September 1, 1962, arrived, appellant, under the amended rules, had five days within which to file a motion for an enlargement of time within which to file her record with the district clerk. This she did not do. Her failure to seek an enlargement of time, as provided by the new rules, precluded her from legally filing her transcript with the district clerk on September 24, 1962. The district clerk acted without legal authority in tardily filing the transcript, and the trial court properly dismissed Laura Church’s attempted appeal.

The judgment is affirmed.


author: DAVIS, Justice.

text:
    Eustace CATE, Appellant, v. O. B. HOLCOMB, Appellee.
    No. 7445.
    Court of Civil Appeals of Texas Texarkana.
    Aug. 20, 1963.
    Rehearing Denied Sept. 10, 1963.
    Ramey, Brelsford, Hull & Flock, Tyler, Sam B. Hall, Jr., Smith, Hall & Huffman, Marshall, for appellant.
    Scott Baldwin, Baldwin & Baldwin, Marshall, Lyndon Olson, Bryan, Maxwell, Wilson & Olson, Waco, for appellee.
   DAVIS, Justice.

Plaintiff-appellee sued defendant-appellant for personal injuries received by ap-pellee as the result of an accident while appellee was riding in a truck being operated by appellant. Trial was to a jury, which answered the special issues in favor of appellee. Judgment was entered accordingly, and the appellant has perfected his appeal. He brings forward 13 points of error.

By his first 5 points of error appellant contends the trial court erred in rendering judgment against him because: 1. Ap-pellee failed to meet the burden of proof that he did not occupy the status of a guest without payment for such transportation; 2. The findings of the jury did not remove appellee from the operation of the Texas Guest Statute, or change appellee’s status as a guest without payment for such transportation; 3. The court’s charge as a whole did not contain any issues inquiring as to whether appellant received anything of a definite tangible benefit which constituted the motivating influence for appellant furnishing the transportation to the appellee on the occasion in question; 4. The appellee failed to raise issues to show (1) that a definite relationship with appellant was established; (2) that a definite tangible benefit to appellant existed; (3) that such definite tangible benefit was the motivating influence which caused appellant to furnish the transportation on the occasion in question; (5) In overruling appellant’s objections and exceptions to the submission of special issue No. IS.

Appellant takes the position that the ap-pellee was a “guest” within Art. 6701b, Vernon’s Ann.Tex.St. Appellant was engaged in the business of general hauling. He owned a 1954 Chevrolet bobtail truck. He conducted his business from his home near McKinney, Texas. During the seasons, appellant hauled cantaloupes, onions, wheat and other crops for the farmers. On other occasions, he would take small jobs of hauling furniture. He was an independent contractor, and had no regular employees. When he needed help, he secured it from a place known as the “jockey lot” in McKinney, a place where unemployed persons desiring employment usually “hung around”. They had been friends over quite a period of time. Appellee being unemployed most of the time was frequently given money by appellant just to “help him out”. Appellee, a man 33 years of age, had made several trips with the appellant. On some of these trips, appellee was not paid anything, or did any work, except the appellant bought his meals and appellee did some of the driving. According to the evidence, on or about August 28, 1960, the appellant was contacted by a man who desired to engage him to haul a load of cantaloupes to New Orleans, Louisiana. He left his pickup at appellant’s home and took appellant’s bobtail truck to Princeton, where he loaded it with cantaloupes. About noon the same day, appellant drove by the “jockey lot” and asked the appellee if he would like to make a trip to New Orleans. Nothing was said at that time about any pay for appellee on the trip. Ap-pellee got in the pickup with the appellant and they proceeded to Princeton where they got in the bobtailed truck loaded with cantaloupes and proceeded on their way to New Orleans. After they had started out, appellant told the appellee that he would pay him the same price for making this trip as he had paid on previous trips. The appellee further testified that he was supposed to drive back from New Orleans. Upon reaching Gladewater it commenced to rain, and continued to do so after they had passed through Longview and to a point about six miles east of Longview where the accident occurred. Appellant was driving, according to the jury findings, at a speed not in excess of 45 miles per hour. At the point of the accident, appellant’s truck had traveled over a slight incline and into a slick spot on the highway that was apparently caused by the rain. After the truck reached the slick spot it suddenly veered to the left and the vehicle ended up overturning in the dirt portion of the center of the four lane highway. Ap-pellee received the injuries resulting from the overturning of the vehicle. While ap-pellee was being treated for the injuries in a hospital in Longview, appellant visited him and gave him some money.

The jury convicted the appellant of the following acts of negligence: Failure to keep the truck under proper control under the existing circumstances; that he operated the truck at an excessive rate of speed under the circumstances, and that such acts of negligence were the proximate cause of the injuries received by the appellee.

The jury also found under the evidence that the appellee was accompanying the appellant on the trip to Louisiana for the purpose of helping him drive the truck, and that appellant had agreed to pay appellee for the trip, and that both instances constituted a motivating cause to the appellant for taking appellee on the trip.

Much has been written as to who is a “guest” and who is a “passenger”. In 28 NACCA Law Journal 83 the following is stated in a “Comment” :

“Trial lawyers know that not even electronic computers can solve ‘guest’ cases; each one must stand on its own bottom, and many of them remain gambles with respect to the recurrent questions of who is a guest, what is gross negligence or wilful, wanton misconduct, and when the guest status begins and ends * *

In view of the evidence in this case, and the jury’s findings in response thereto, the court must find that the appel-lee was a “passenger” being transported by appellant for a tangible benefit that was a motivating influence accruing- to the appellant, and that appellant was guilty of acts of negligence that would make him liable. Gregory v. Otts (Ct.Civ.App.), 329 S.W.2d 904, W.R., N.R.E.; Truitt v. Gaines, D.C., 199 F.Supp. 143; Woodland v. Smith, 56 Wash.2d 552, 354 P.2d 391; Bailey v. Pennington et al., 8 Cir., 274 F.2d 328; 26-27 NACCA Law Journal 58; 29 NACCA Law Journal 51; Kruzie et al. v. Sanders et al., Cal., 143 P.2d 704, (superseding) Cal.App., 135 P.2d 710; 16 Negligence and Compensation Cases Annotated, 317-379; Drizanich v. Criley, 19 Cal.2d 439, 122 P.2d 53; Burnett v. Howell, Tex.Civ.App., 294 S.W.2d 410, W.R., N.R.E. The points are overruled.

The other points have been carefully examined, found to be without any merit and they are overruled. The judgment of the trial court is affirmed.


author: HAMILTON, Justice. *

text:
    Mrs. A. L. SMITH, Petitioner, v. EAGLE STAR INSURANCE CO. Ltd., Respondent.
    No. A-9532.
    Supreme Court of Texas.
    July 24, 1963.
    Rehearing Denied Oct. 2, 1963.
    Calloway Huffaker, Harold Green, Ta-holca, for petitioner.
    Key, Carr & Clark, Aubrey J. Fouts, Lubbock, for respondent.
   HAMILTON, Justice. *

This is a suit to recover on a fire insurance policy for the loss of a house brought by Mrs. A. L. Smith, petitioner, against Eagle Star Insurance Company, Ltd., respondent. Judgment was for the petitioner in the trial court. The Court of Civil Appeals reversed and rendered judgment for respondent insurance company. 365 S. W.2d 23. Mrs. Smith has appealed to this court.

Both parties filed motions for summary judgment in the trial court. The trial court granted petitioner’s motion for summary judgment and denied that of respondent. Respondent insurance company brought one point of error to the Court of Civil Appeals, which is as follows:

“The trial court erred in failing to grant the motion for summary judgment of the defendant in the court below because the uncontradicted facts show that the plaintiff had no insurable interest in the property covered by the policy of insurance in question.”

The Court of Civil Appeals sustained this point of error, holding as a matter of law that Mrs. Smith, petitioner herein, had no insurable interest in the property covered by the policy of insurance in question.

The petitioner maintains by her points of error that she derived a pecuniary benefit and advantage by the preservation an; continued existence of the house in question, and that she suffered pecuniary loss because of its destruction, and that the Court of Civil Appeals erred in holding that the uncontradicted evidence established the lack of insurable interest on the part of the petitioner.

She also maintains that under the pleadings, the affidavits and the depositions before the court that the trial court properly granted her motion for summary judgment, it being conclusively shown that she had an insurable interest in the property in question.

There does not seem to be much controversy as to the facts in this case. The problem is more the interpretation of the undisputed facts and applying the applicable law thereto. Mrs. Smith, the petitioner here, and her husband acquired Section 455, Block D, John H. Gibson Survey in Yoak-um County, Texas, in the latter part of 1940 or early 1941. At this time Mrs. Smith and her husband thought that Section 455 adjoined the eastern boundary line of New Mexico. There was a county road running north and south along the New Mexico east boundary line, and being on the west side of what Mrs. Smith thought was Section 455. Along this road and on the west side of the south half of Section 455 was a set of improvements, including the house into which she and her husband and family moved in 1941. Some time after Mrs. Smith and her husband took possession of Section 455 together with these improvements, she heard by word of mouth that her house was located on a strip of land claimed by the State of Texas, and designated as Section 456, this strip of land being between Section 455 and the New Mexico boundary line. The amount of acreage in this strip was not indicated, but it was described as being approximately three miles long, twenty-five yards wide at the north end, which began at the northwest corner of said Section 455, and one hundred yards wide at the south end. Several years after 1941 the Smiths sold the north half of Section 455. They continued to occupy said improvements and use them as a base of operations for farming the south half of Section 455 until Mrs. Smith’s husband’s death in 1951. Their son, who lived with Mrs. Smith, operated the farm for one year and in the fall of 1952 Mrs. Smith, who had acquired the interests of her children in and to the land, leased the premises to a Mr. McPherson for a term of ten years at a rental of $2,000.00 per annum. As a part of the consideration for said lease, the lessee agreed to and did drill two ten-inch irrigation wells, one of which was on the strip in question. Mr. McPherson in turn leased to Mr. Benthal, who paid the rent each year, although he sublet the land to a Mr. Newton, who was occupying the improvements at the time of the loss for which this suit was brought.

In January of 1959 respondent company issued its fire and extended coverage policy to Mrs. Smith on a stucco dwelling house located on the “south half of Section 455 and Section 456, Block D, known as the Gibson Survey, about 14 miles west from Plains on the east side of a state line road in Yoakum County, Texas.” This policy was for a five-year term at a premium of $288.00. The house covered by this policy was completely destroyed by fire in February, 1960.

The depositions of Mrs. Smith and her son who acted as her agent in leasing the place and in procuring the insurance policy were on file in the record. Both on the basis of hearsay testified that the house was located on Section 456 or state land, and that they received no rent for the house itself. However, the son testified in connection therewith in answer to the following question: “Would it be correct to say that since this lease was executed your mother has not received any income from the use of the house?” He answered: “Only just the way it was connected with the place.”

The Court of Civil Appeals, based on the testimony of Mrs. Smith and the son that the house was located on state land and that they had received no rent for the house itself, concluded that Mrs. Smith had no insurable interest in the house. Mrs. Smith, by affidavit attached to her motion for summary judgment, said she recognized that the state claims the strip of land designated as Section 456, but for twenty years she has occupied and used the strip of land in question as part of the south half of Section 455, and she insists that the improvements and house in question belong to her.

We do not agree with. the conclusion reached by the Court of Civil Appeals that because the house was located on state land and Mrs. Smith did not receive any rent for the house itself that those facts conclusively establish that Mrs. Smith had no insurable interest in the house. The Court of Civil Appeals stated the generally accepted rule to be “that an insurable interest exists when the assured derives pecuniary benefit or advantage by the preservation and continued existence of the property or would sustain pecuniary loss from its destruction,” citing Rolater v. Rolater, (Tex.Civ.App.) 198 S.W. 391, and Canfield v. Newman, (Tex.Civ.App.) 265 S.W. 1052. We agree with this rule, but we do not agree with the Court of Civil Appeals’ application of the rule to the facts of this case.

It is not always necessary to prove title in an insured in order to prove an insurable interest in the property. In 29 American Jurisprudence, 781, Insurance, Section 438, it is said:

“The principle may be stated generally that anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction. * *
“The courts of this country, as well as of England, are well disposed to maintain policies where it is clear that the party insured had an interest which would be insured in the event the peril insured against should happen. In-, deed, it is not necessary, to constitute an insurable interest, that the interest be such that the event insured against would necessarily subject the insured to loss; it is sufficient that it might do so, and that pecuniary injury would be the natural consequence. * * *
“An insurable interest in property does not necessarily imply a property interest in, or a lien upon, or possession of, the subject matter of the insurance, and neither the title nor a beneficial interest is requisite to the existence of such an interest; it is sufficient that the insured is so situated with reference to the property that he would be liable to loss should it be injured or destroyed by the peril against which it is insured. * * * ”

When we view the testimony in the depositions and the affidavits in the light most favorable to the respondent we can not escape the conclusion that there is ample evidence that Mrs. Smith had an insurable interest in the house in question. There is no question but that the use of the house in connection with the farming operation of Section 455 was a valuable asset both to her and her husband while they were working the farm and also to her tenants. She leased the farm and improvements in 1952 for ten years. During said time the tenant desired to make some improvements on the house and requested her to help with the expense. She paid $200.00 on the improvements. This fact shows that she recognized the value to her of having her tenant satisfied with the house.

Regardless of whether the state owned the land on which the house was located, it is undisputed that Mrs. Smith had the undisturbed use of the house long prior to and at the time the policy was written and at the time the loss occurred. The fire caused her a loss of this use. When the history of the use of the house in connection with the farm is reviewed no other conclusion can be reached but that she suffered a pecuniary loss by reason of the fire. The fact that Mrs. Smith did not receive any money rent for the house itself is not contrary to this conclusion.

We hold, therefore, that since petitioner lost the use of the house in question, and since such loss resulted in a pecuniary loss to her, that she did as a matter of law have an insurable interest in the house.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


author: PER CURIAM.

text:
    Chester R. MORRIS, Petitioner, v. Sam A. HOERSTER and John T. Middleton, Respondents. Chester R. MORRIS, Petitioner, v. Joseph R. SMILEY et al., Respondents.
    Nos. A-9664, A-9665.
    Supreme Court of Texas.
    July 31, 1963.
    Rehearing Denied Oct. 2, 1963.
    Chester R. Morris, petitioner pro se.
    Waggoner Carr, Atty. Gen., Austin, Pat Bailey, Asst. Atty. Gen., for respondents.
   PER CURIAM.

We agree with the result reached by the Court of Civil Appeals. 368 S.W.2d 639. However, we do not agree with the Court of Civil Appeals that petitioner’s recourse in denial of a bill of discovery brought in conjunction with pending litigation, though brought as an independent action, is only by way of mandamus in the Supreme Court. The reasoning in Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, does not necessarily apply where a bill of discovery has been denied.

The applications for writ of error are refused, n. r. e. Rule 483, Texas Rules of Civil Procedure.