author: CHAPMAN, Justice.'

text:
    ASSOCIATED ARCHITECTS & ENGINEERS, INC., Appellant, v. LUBBOCK GLASS & MIRROR CO. and Southwestern Sheet Metal Works, Inc., Appellees.
    No. 7743.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1967.
    Rehearing Denied Nov. 30, 1967.

      Brown, Shuman & Harding, Lubbock, Clifford W. Brown, Lubbock, of counsel, for appellant.
    Nelson, McCleskey & Harriger, and Don Graf, Lubbock, Peticolas, Luscombe & Stephens and Mark F. Howell, El Paso, for appellees.
   CHAPMAN, Justice.'

This is an appeal from a jury verdict for Lubbock Glass & Mirror Company against Southwestern Sheet Metal Works, Inc. and Associated Architects & Engineers, Inc. of Lubbock. Judgment was also entered in favor of Southwestern Sheet Metal Works, Inc., against Associated Architects & Engineers, Inc. of Lubbock for indemnity as to recovery by Lubbock Glass & Mirror Co. and for $906.07 on Southwestern’s cross-action against Associated Architects. The parties will be hereinafter referred to as appellant or Associated Architects, Lubbock Glass and Southwestern. Howard Schmidt was named in the petition of Lubbock Glass as a defendant but by stipulation at the beginning of the trial, it was agreed that as general manager his actions as they relate to the case were binding upon Associated Architects.

Lubbock Glass received a purchase order from Southwestern," subcontractor for the construction of a Central Foods Building at Texas Technological College, for six Type “A” Skylights “as per plans and spec.” for said building. The purchase price was $1,077.

The plans and specifications referred to were drawn under the supervision of Howard Schmidt for Associated Architects. The particular type skylights were of a diagonal prism type which had the prisms arranged in such manner as to diffuse or deflect the sunlight in the summer time in order to aid in the cooling of the building and to permit the sunlight to come through in the winter time to aid in the heating of the building.

Lubbock Glass in following the plans and specifications drawn by Associated Architects ordered six “C-45-D” Skylights from Products Research Company. They were subsequently delivered to Southwestern for installation. When placed on their respective openings, it was discovered that the north arrow was pointing west instead of north, thus negativing the benefits of the sun the prisms were designed to utilize.

The skylights were not installed at first but just left covering the openings. Subsequently, the skylights were rejected by Associated Architects and the proper model ordered, which was “C-54-D” Skylights. When the construction of the building was completed, Southwestern installed and made secure the first skylights delivered because the correct ones had not arrived and underneath the skylight holes was about $200,000 worth of kitchen, produce, processing and bakery equipment.

Associated Architects is before us upon eighteen points of alleged error. Its Points 12, 13, 16 and 17 are neither restated, briefed nor argued. Therefore, we may assume those points were waived. Rule 418, Vernon’s Ann.Tex.Rules of Civil Procedure; McClanahan v. Cook, 401 S.W.2d 352 (Tex.Civ.App.-Amarillo, 1966, no writ) and the authorities there cited on the question.

In response to the court’s submission the jury found: “(1) the ‘C-45-D’ Skylights furnished to Southwestern complied with the plans and specifications furnished by appellant for the building; (2) Howard Schmidt was negligent in preparing the plans and specifications and such negligence proximately caused Lubbock Glass to order the skylights; (3) the damages caused to Lubbock Glass were $1,077; (4) the architect rejected the skylights furnished by Lubbock Glass and installed by Southwestern; that such rejection was negligence and a proximate cause of damages to Southwestern in the amount of $906.07, (shown to be the cost of returning from El Paso and installing the proper skylights after they were delivered); (5) Southwestern installed the first skylights with the north arrow pointing west, but such installation was not negligence.”

In its first five points appellant contends there is no evidence to support the jury’s findings that the “C-45-D” Skylights complied with the plans and specifications; that appellant was negligent in preparing them and such negligence was a proximate cause of the - $1,077 damages to Lubbock Glass; that the action of Southwestern in installing the “C-45-D” Skylights was not negligence. In its Point 15, grouped with its first five points, appellant contends the court erred in overruling appellant’s motion for instructed verdict “which reasons are more fully set out in said motion.”

In its Points 6 through 11 appellant contends there is factually insufficient evidence to support the jury’s answer to Special Issues 1, 2, 3, 8, 9 and 12. By the use of the term “factually insufficient evidence” throughout this opinion, we have reference to the question of the great weight and preponderance of the evidence.

In passing upon the factually insufficient points, our requirements are detailed in the following language found in the Supreme Court of Texas’ per curiam opinion in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) and the many cases following it:

“The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some ‘evidence of probative force’ in support of the verdict.”

Both Jack Redinger and Charles Shepherd of Lubbock Glass testified in effect that the detailed drawings for the skylights called for “C-45-D” Skylights, which was what Lubbock Glass ordered. Mr. Schmidt himself testified his firm drew the plans for the skylights; he expected all parties to rely on its company’s specifications; that Exhibit P-3 indicated a 4' x S' skylight diagonal curb type would bear a code number “C-45-D” and admitted that if he were drawing them over again he would show 5' x 4' on the detail instead of 4' x 5'.

If we understand appellant’s contention it is that because the skylights were not oriented in their placement with the north designation facing north, (as testified to by their witnesses and admitted by all concerned), then they did not meet the plans and specifications. Therefore, there is no evidence or the evidence is factually insufficient to support the jury findings.

Such reasoning is not sound. Lubbock Glass had no responsibility as to the installation but only to supply the type materials called for on the plans and specifications, which they did. Secondly, the information for installation is not relevant to the question of the type or size skylight needed. Because the specifications from which the order by Lubbock Glass was placed were improper, it was impossible to orient them to the recommendations of the manufacturer. Appellant cannot rely on the impossibility created by its own improper plans to justify its contention of no evidence or factually insufficient evidence to support the jury findings that the skylights furnished by Lubbock Glass complied with the plans and specifications, that appellant was negligent in the drawing of the plans, and that such negligence was a proximate cause of the damages Lubbock Glass suffered. We feel that so far as Southwestern is concerned appellant likewise cannot rely on no evidence and factually insufficient evidence to relieve itself of the jury finding that it was guilty of negligence in rejection of the very skylights its drawings called for, as found in Special Issue No. 8.

The evidence supporting the jury’s finding that the installation of the first set of skylights was not negligence on the part of Southwestern cannot be said to be factually insufficient when we consider the testimony by Mr. Schmidt himself that $200,-000 worth of kitchen, produce, processing and bakery equipment was located under the skylights and to have boarded them up would have been gambling on the part of the contractor.

We also hold the jury’s answers to Special Issue No. 9 is not factually insufficient. That issue finds the rejection by appellant of the skylights its specifications called for was a proximate cause of Southwestern’s damages. Had they not been rejected, it is true they would not have served the purposes intended, but such situation does not militate against the fact that appellant by rejection forced Southwestern to the extra expenses for installation of the correct set, and appellant should have foreseen that improper drawings and rejection of the skylights called for thereby would necessitate the extra trip by Southwestern to remove, appellant’s mistake and install the proper skylights when they became available.

We have not discussed appellant’s Point 15 for the reason that we consider it as entirely too general to raise a proper point. It states the reasons its instructed verdict should have been rendered are fully set out in its motion. When we refer to the transcript we find three motions for instructed verdict, so we are unable to determine which one appellant is making reference to in its point.

Because of the inferences we must honor in sustaining the jury verdict, In re King’s Estate, supra, the burden is less onerous on appellant to sustain factually insufficient points than no evidence points. Since we have determined, in considering all the evidence, that the jury’s answers to the points discussed are not so against the great weight and preponderance of the evidence as to be manifestly unjust, it naturally follows that there is some probative evidence to support such issues. Therefore, Points 1 through 5, IS, and 6 through 11 are overruled.

Point 18 urges reversible error in failing to sustain objections to the evidence of damages submitted by Southwestern because they were not a proper measure of damages and Point 14 claims reversible error in submitting Special Issue 10 for the same reason. Special Issue No. 10 is as follows: “From a preponderance of the evidence, what amount of damages, if any, was suffered by Southwestern Sheet Metal Works, Inc. as a result of the negligence, if any, of Howard Schmidt?”

Reference to the transcript shows appellant’s objection to the court’s charge in submitting Special Issue No. 10 is based upon the premise that it was not conditionally submitted upon findings in Special Issues 8 and 9 and as worded is a comment upon the weight of the evidence. No points are submitted upon those grounds, and we find no objection in appellant’s “Objections to Court’s Charge” of the submission of the issue for the reason that it did not submit a proper measure of damages. Therefore, we must assume that ground of objection was waived. Rules 272 and 274, V.A.T.R.; Wilson v. King, 311 S.W.2d 957 (Tex.Civ.App.-Austin, 1958, writ ref’d); Minugh v. Royal Crown Bottling Co., 267 S.W.2d 861 (Tex.Civ.App.-San Antonio, 1954, writ ref’d); Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979 (1948).

With respect to Point 18, concerning proof of a proper measure of damages, Southwestern introduced into evidence its business record of the itemized expenses incident to installation of the proper skylights after they were delivered. It shows on its face to be for “new skylights over and above original skylight purchase,” and Southwestern’s Mr. Allen testified the record reflected the actual expenses incurred in replacing the second set. There is not any controversy in the record but that such expenses were incurred as a result of the installation in the Central Foods Building at Texas Technological College, which we may take judicial knowledge is at Lubbock, and Mr. Allen testified they were necessary and reasonable. The measure of damages proven were the actual damages incurred as a result of appellant’s negligence in drawing incorrect plans and specifications. Even if the court did not require more detail in showing the damages Southwéstern suffered as a result of appellant’s negligence, it was not of a nature to justify reversing the case. Rule 434, V.A.T.R.

The last ten pages of appellant’s brief is devoted to its argument that the judgment of the trial court is fundamentally erroneous, yet no point is asserted in that connection.

Rule 418, V.A.T.R., provides in part as follows: “The brief for appellant should contain * * * (b) A statement of the points upon which the appeal is predicated, separately numbered in short form and without argument, * *

We do not believe the argument on the point of law of fundamental error requires us to give consideration to the argument, even though Lubbock Glass and Southwestern have answered it in their brief. We are familiar with the statement by the Supreme Court of Texas in McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964) as follows: “After a point of law has thus been briefed by all parties and decided by the Court of Civil Appeals, we think it should be treated as having been properly presented for decision at the intermediate court level even though not raised by a formal point of error in the appellant’s brief.” (Emphasis added.)

We do not believe under Rule 418 and the statement just quoted that we are required to decide the point and do not choose to discuss it. Anyhow, a reading of the pleadings shows such discussion would avail appellant nothing.

In a supplementary transcript it was stipulated by the parties that the sum of $500 is a reasonable and necessary amount of attorneys’ fees for the services rendered by the attorneys for Lubbock Glass if they are entitled to attorneys’ fees. Since no point is before us on the right of recovery and no contention made in the briefs on attorneys’ fees, we may assume the question is waived. Rule 418; McKelvy v. Barber, supra. We are not to be understood by such holding that we would, if the point was properly raised, hold that attorneys’ fees are recoverable.

Accordingly, the judgment of the trial court is in all things affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Roxie BASKET et al., Appellants, v. Vera CLIFFORD et vir, Appellees.
    No. 4205.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 15, 1967.
    Richard Dresser, Moran, for appellants.
    Loren Williams, Albany, for appellees.
   WALTER, Justice.

The appellees have filed a motion to dismiss this appeal.

Summary judgment was rendered in favor of defendants Vera LaVerne Clifford and husband, Burk Clifford, on July 28, 1967. On the same day the plaintiffs excepted to such judgment and gave notice of appeal. Within the time required by law, the plaintiffs filed their affidavit in lieu of bond which was contested by the defendants.

On November 6, 1967, the court held that the plaintiffs failed to discharge their burden of proving they were too poor to pay the cost of court and unable to give security therefor and required plaintiffs to give security for costs or file an appeal bond.

Rule 356, Texas Rules of Civil Procedure, requires that a bond for costs on appeal shall be filed within thirty days after rendition of judgment.

It is the policy of this court to exercise its discretion liberally in favor of permitting appeals, but we have no discretion to permit these aggrieved parties to appeal, because they have not filed a bond as required by Rules 355 and 356 of Texas Rules of Civil Procedure. King v. Payne, 156 Tex. 105, 292 S.W.2d 331 (1956).

The appellees’ motion is sustained and the appeal is dismissed.


author: BELL, Chief Justice.

text:
    Julia Coombs SHEEHAN et al., Appellants, v. SOUTHERN PACIFIC COMPANY et al., Appellees.
    No. 15254.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Dec. 28, 1967.
    Rehearing Denied Jan. 18, 1968.

      Spiner, Pritchard & Thompson, Clark G. Thompson, Harvey T. Fleming, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry Lee Hughes, Houston, for appellee Fisher Construction Co.
   BELL, Chief Justice.

Appellee, Fisher Construction Company, has filed its motion to dismiss this appeal because appellants did not timely file their cash deposit which was filed in lieu of an appeal bond.

The appeal is taken from a judgment sustaining appellees’ motions for summary judgment decreeing that appellants take nothing by their suit in trespass to try title to a specifically and sufficiently described tract of land, it being SO feet wide and 1752 feet long.

Suit was filed by numerous named persons, all of whom are appellants, against the appellees and Oneita Skinner Herring, who was alleged to be a person mentally incompetent to manage her affairs and for whom no guardian had been appointed. All defendants filed answers sufficient to join issue. The court appointed the Honorable Raymond H. Wilson of the Houston Bar an “attorney ad litem” for Oneita Skinner Herring. While he should have been called “guardian ad li-tem” (Rule 173 Texas Rules of Civil Procedure), we think the improper designation is not fatal. He was in fact a disinterested person appointed by the court to represent the incompetent in the suit and we think was therefore in law a guardian ad litem. The guardian filed an answer. Her claimed interest was the same as the plaintiffs in the case, that is, she claimed title under Charles G. Fitze and wife, S. C. Fitze.

The defendants, except Oneita Skinner Herring, filed a motion for summary judgment. Oneita Skinner Herring, expressly assuming the same position as the plaintiffs and Shelby Fitze and Walter Fitze who had intervened taking the same position as the plaintiffs, all filed opposition to the appellees’ motions.

On July 21, 1967, the trial court signed a judgment sustaining the motions for summary judgment decreeing that plaintiffs, intervenors and Oneita Skinner Herring take .nothing against the appellees who were named in the judgment. The judgment reciting the names of the appellees also recited that they came to the hearing on the motion by their attorneys. It further recited that the plaintiffs came by their attorneys. Further, it recited that the “attorney ad litem” for Oneita Skinner Herring appeared and announced his ward was in the same title position as plaintiffs and intervenors. The plaintiffs and inter-venors, except Oneita Skinner Herring, were not expressly named in the judgment. There was also the recital of due notice of the filing of the motions and the date set for the hearing. The date of the hearing was June 24, 1967. After making the recital concerning the fact of the hearing by the court there is this recital:

“and being of the opinion that all of the same reflect that there is no genuine issue as to any material fact which precludes the granting of said motions, and the Court being of the further opinion, under the undisputed facts and authorities presented by the movants for Summary Judgment, that the Plaintiffs and Intervenors, as well as Defendant Oneita Skinner Herring, who relies upon the same title theory as Plaintiffs, do not as a matter of law have title to any portion of the strip of land in controversy, that the fee title thereto (emphasis ours) is as a matter of law either in one or more of the Defendants in this cause or is outstanding and that the respective motions for Summary Judgment should be granted; * * * ”

There then follows an adjudication that “Plaintiffs and Intervenors take nothing against the Defendants * * *” The defendants are then named. There is also the adjudication that “said Defendants do have and recover their costs in this behalf expended or incurred.” Appellants gave notice of appeal in the judgment.

Nothing further was done in the case until August 24, 1967, more than 30 days after the judgment was signed July 21, 1967. On August 24 Mr. Wilson, the “attorney ad litem,” filed a motion pointing out that while the judgment of July 21, which he referred to as being interlocutory, awarded the defendants their costs, it made no provision for an amount of his fee. He asked for a hearing on the motion to determine the amount of the fee and that it be charged as provided by law.

Also on August 24 the plaintiffs filed a motion asking for an order authorizing the entry of a judgment nunc pro tunc vacating and setting aside the judgment of July 21, or, in the alternative, to determine undetermined issues and to enter a final judgment. The judgment of July 21, it was asserted, had failed to describe the land involved and had not given the full names of the plaintiffs and intervenors. The basis of the assertion that there were undecided issues was that the judgment made no determination of compensation for the “attorney ad litem.” Appellee, Fisher Construction Company, opposed the motion filed by plaintiffs.

On August 28, the court entered its second judgment in the cause. The second judgment was the same as the first, except that it named the plaintiffs and intervenors specifically, described the land and made an award of compensation to the “attorney ad litem” and taxed it and all other costs against the plaintiffs and intervenors. It made no reference to the plaintiffs’ motion or the “attorney ad litem’s” motion. It made no reference to the judgment of July 21. It did not vacate or set aside that judgment, nor did it purport to be a nunc pro tunc entry.

The appellants’ deposit in lieu of an appeal bond was timely filed if the judgment of August 28 is effective, but if the judgment of July 21 is the effective judgment the deposit was not timely made. The attorney ad litem (guardian ad litem) appealing in his fiduciary capacity is exempted from posting a bond. King et al. Relators v. Payne et al., Respondents, 156 Tex. 105, 292 S.W.2d 331. However, the record was not filed here within the time provided by law after the July 21 judgment, and no extension of time was requested. Oneita Skinner Herring must, therefore, also depend on the efficacy of the judgment of August 28.

We are of the view that the judgment of July 21 was a final one in that it disposed of all issues, and not interlocutory, and became final 30 days thereafter and could be set aside only by a direct attack by appeal or by a bill of review. Rule 329b, T.R.C.P.

While the judgment of July 21 did not name the plaintiffs or intervenors, it did name Mrs. Herring who had assumed the position of a plaintiff. The judgment also expressly decreed that “the Plaintiffs and Intervenors” take nothing. This can but mean all of the plaintiffs and interven-ors. Who the plaintiffs were can be ascertained from the record, that is, their petitions. Too, while the strip of land was not specifically described in the July 21 judgment, the judgment recited that the court found as a matter of law that the plaintiffs and intervenors, as well as defendant, Oneita Skinner Herring, who relies on the same title theory as plaintiffs, “do not as a matter of law have title to any portion of the strip of land in controversy.” There was, as shown by the plaintiffs’ petition, as well as the other pleadings, only one strip of land in controversy. It is the one described in the plaintiffs’ petition. Under the following authorities we feel the parties are sufficiently disposed of by the judgment and the land is sufficiently identified : Laros et al. v. Hartman et al., 152 Tex. 518, 260 S.W.2d 592; Houston Oil Co. of Texas v. Village Mills Co., 241 S.W. 122 (Tex.Com.App.); Tenison v. Donigan, 237 S.W. 229 (Tex.Com.App.); Wood v. Gulf Production Co., Tex.Civ.App., 100 S.W.2d 412, n. w. h.; Ruby et al. v. Von Volkenberg, 72 Tex. 459, 10 S.W. 514; Greer v. Robertson et al., Tex.Civ.App., 297 S.W.2d 279, n. r. e.; Shelton et al. v. Palmer Grove Methodist Church et al., Tex.Civ.App., 279 S.W.2d 917, n. w. h.

The judgment adjudged costs against the plaintiffs and intervenors. Nothing appears specifically about compensation for the “attorney ad litem.” Rule 173, T.R.C.P., provides the court shall fix the compensation to be taxed as costs. The following cases determine, in principle, that this is really not an issue that would have to be disposed of by the judgment itself but could be disposed of apart therefrom by motion and order fixing the amount of the compensation as a part of the costs. Sterling et al. v. Darrouzet et al., Tex.Civ.App., 282 S.W. 283, dism., w. o. j.; Japhet et al. v. Pullen et al., Tex.Civ.App., 153 S.W. 1188, n. w. h.; Jones et al. v. Guynes, Tex.Civ.App., 242 S.W. 796, error dism.; Simmons et al. v. Arnim et al., Tex.Civ.App., 172 S.W. 184, aff’d 110 Tex. 309, 220 S.W. 66.

Even if the “attorney ad litem’s” compensation should be disposed of by the main judgment, we hold that under the principles announced by our Supreme Court in Northeast Independent School District v. Aldridge, 400 S.W.2d 893, the July 21 judgment, worded as we have above noticed, was a final judgment.

The July 21 judgment being a final one in the sense that it disposed of all issues and parties, could not be set aside after the expiration of 30 days except as we have above stated. In fact there is no order or judgment purporting to set it aside. There is merely a second judgment dated August 28. There may be only one final judgment in a case. The court was without jurisdiction to render or enter the August 28 judgment.

Appeal dismissed.


author: GRISSOM, Chief Justice.

text:
    J. Frank CARTER et ux., Appellants, v. SOUTH TEXAS LUMBER COMPANY et al., Appellees.
    No. 4191.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 22, 1967.

      Dan Fergus, Wayne B. Ames, Abilene, for appellants.
    Byrd, Shaw, Weeks, Calhoun & Bradshaw, William W. Bradshaw, Abilene, for appellees.
   GRISSOM, Chief Justice.

J. Frank Carter and wife bought some lots in Abilene, intending to construct a dwelling thereon and make it their homestead. They made a contract with Love to build the house and, on October 5, 1964, executed and delivered a note payable to him or to his order for $9,000.00, due on or before one hundred and twenty days from date. It contained the following provisions :

“This note is given in payment for the construction of certain improvements— this day contracted to be erected by Dan Love for the undersigned — ”

At the same time the Carters executed and delivered contracts expressly giving Love mechanic’s, materialman’s and deed of trust liens to secure its payment. Simultaneously, Love endorsed and assigned said note and liens to South Texas Lumber Company. Thereafter, Love constructed the dwelling, a portion of the materials used therein being furnished by said Company. Said Company being the owner and holder of said note, in due course after its maturity, made demand for payment and, upon the Carters’ refusal to pay, it caused the trustee to post notices of sale of such property under said deed of trust, whereupon, the Carters filed this suit seeking to enjoin the sale. The Carters alleged their execution and delivery of the note and lien contracts and construction of the dwelling on said lots by Love. However, they also alleged they had paid the note to Love. Both sides filed motions for summary judgment. The Lumber Company’s motion was sustained and judgment rendered accordingly. Carter and wife have appealed. Their points will be hereinafter mentioned.

The court did not err in refusing to enjoin the sale under the deed of trust because it was established that the note was a negotiable instrument owned by the Lumber Company and that it became the holder thereof in due course for a valuable consideration prior to its maturity. The Carters’ pleadings and affidavit established compliance with the contract by Love. In their verified petition the Carters alleged their execution and delivery of the note to Love; that it was secured by said liens and that upon delivery Love assigned it and said liens to the Lumber Company and that Love erected said dwelling in accordance with said contract and that they had paid the note to Love. The Carters alleged there was no issue of fact, only questions of law. The Lumber Company, in its verified cross action alleged that it was the owner and holder of said note in due course before maturity; that it had not been paid and demand and refusal to pay. It tendered into court the original note with said endorsement and assignment. The Lumber Company’s motion contained the affidavit of its president that it furnished materials for erection of Carter’s house of the value of $2,179.20. It attached the invoices therefor, swore that they were correct and that they represented the balance due for the materials furnished by it to build Carter’s house; that no payment had been made to said Company and that it had been the owner and holder of said note and liens since the date of its execution, the 5th of October, 1964. In reply thereto the Carters filed only a general denial. Appellees’ motion for summary judgment was not based on pleadings alone. Therefore, the question that divided our Supreme Court in Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d 162, is not presented here.

There was no allegation that the note was not negotiable. Its negotiability is evident. The record shows that it is a negotiable instrument owned by said Lumber Company and that it became a holder thereof in due course prior to its maturity for a valuable consideration. It was (1) in writing and signed by the Carters; (2) it was an unconditional promise to pay and (3) it was payable at a determinable future time (4) to Love’s order, as required by Sec. 1, Article 5932 to make it negotiable. It bore on the reverse side the order of Love for its payment to the Lumber Company and it was delivered to said Company on October 5, 1964, the day it was executed by the Carters and assigned to said Company. Said facts are established and are undisputed.

Section' 52 of Article 5935 defines a holder in due course as follows:

“A holder in due course is a holder who has taken the instrument under the following conditions:
1. That it is complete and regular upon its face;
2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
3. That he took it in good faith and for value;
4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Section 57 of Article 5935 provides that a holder in due course holds the instrument free from defenses available to prior parties among themselves and that it may enforce payment of the full amount against all parties liable thereon. It was established that the Lumber Company was a holder in due course and within the provisions of said statute.

The Carters contend the note was not negotiable because it provided that it was subject to improvements being erected on the described lots, maintaining that the recitation that a dwelling was to be erected made the promise to pay conditional. We do not agree with this conclusion. Section 3 of Article 5932 provides that an unqualified promise to pay is unconditional, though coupled with a statement of the transaction which gives rise to the instrument. That provision is applicable here.

Appellants cite Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928, in which it was held that a similar recitation in a note was merely a statement- of the transaction which gave rise to that instrument within the meaning of- said article. Appellants seem to contend that, since the recitation in this note is not identical to that in the Conner case, this note is not negotiable because the statement therein is more than a statement of the transaction. We cannot agree to that conclusion. In the Conner case our Supreme Court said that before a reference in an otherwise negotiable instrument to another instrument will make it non-negotiable it must appear therefrom that the paper is burdened with the condition of the agreement referred to. The recitation in the Conner case was to a provision that failure to pay any part of the principal, or to perform any agreement in the referred to lien instrument, would mature the note and, further, that the note was secured by a referred to mechanic’s lien contract. The recitation in the note here in question was to the effect that the note was given in payment for construction of certain improvements upon Carter’s lots by Love and that to secure its payment an express contract and mechanic’s lien had been given upon said lots and improvements. The note was negotiable. Said reference was nothing more than a statement of the transaction which gave rise to the note within the meaning of Section 3 of Article 5932.

In Lozano v. Meyers (Tex.Com.App.), 18 S.W.2d 588, the reference in a note was to a mechanic’s lien contract substantially as follows: that the note was given in part payment for architectural work for construction of certain improvements upon described lots that day contracted to be erected by the contractor for the payors. That court held said note was a negotiable instrument and that the purchaser thereof was a holder in due course. In McCutcheon v. Union Mercantile Company, 267 S.W.2d 916, 917 (Tex.Civ.App., writ ref.), the court said:

“The note recites that it is given in full payment for the construction of certain improvements upon the lots ‘this day contracted to be erected’ * *
jfc ⅜ * sfc ⅝ ⅜
“There should be no serious contention that the original * * * was not a negotiable note. It has all the requirements of a negotiable instrument as prescribed by the Negotiable Instrument Law, Art. 5932, R.C.S. The fact that it refers to the Mechanic’s lien contract by express provision of the statute is unimportant. It is nevertheless an unconditional promise to pay. Art. 5932, Sec. 3(2).”

In Magee v. I. & G. N. Wood and Coal Co., 269 S.W.2d 498 (Tex.Civ.App., ref. n. r. e.), it was held that a note which recited that its payment was secured by a builder’s and mechanic’s lien and deed of trust lien upon described property and that it was given in part payment for material and labor to be furnished by the payees, in accordance with a contract of even date, was a negotiable instrument.

Under said authorities, we hold that the Lumber Company was a holder in due course and that, under the provisions of Section 57 of Article 5935, it held the note free from defenses available to prior parties among themselves and that it had a right to enforce payment in the manner it was attempting to enforce it when the appellants sought to stop it by injunction. Section 60 of Article 5936 provides that the maker of a negotiable instrument by making it engages that he will pay it according to its tenor and, further, that he admits the capacity of the payee to endorse and transfer it. Applying the facts of this case to said decisions we are compelled to hold that the Carters, having executed a negotiable note and knowing that it could easily be transferred in due course, that any sort of prudence on their part would have required that they demand delivery of the note by Love before paying the note to him. With due deference to the able and earnest contentions of appellants, we hold there was no issue of fact and that, as a matter of law, the record shows the Carters had no right to enjoin said sale and that the court properly rendered judgment for the Lumber Company. All of appellants’ points have been considered and are overruled.

The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Tom W. STOTTS, Appellant, v. Deral WAKEFIELD et al., Appellees.
    No. 7754.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1967.
    Rehearing Denied Jan. 8, 1968.

      Miller, Sanders, Baker & Miller, and W. A. Baker, Amarillo, for appellant.
    Robinson & Fotheringham and A. J. Robinson, Amarillo, for appellees.
   CHAPMAN, Justice.

This is an appeal from a judgment summarily rendered by the trial court. In addition to the pleadings of the parties there is in the summary judgment record a motion for summary judgment, accompanied by an affidavit filed by defendants-appellees; an answer to the motion, accompanied by an affidavit; request for admissions and admissions thereto filed by plaintiff-appellant; and the statement of facts made on the venue hearing. Though the judgment rendered does not recite, that the venue statement of facts was considered, it is before us as one of the summary judgment components and we believe must be considered. It does not represent oral testimony received at the hearing, such as is precluded by Rule 166-A(c) Vernon’s Annotated Texas Rules, and is referred to in appellant’s brief without any exceptions thereto by appellees. As utilized by the parties we believe it must have been used to serve the place of depositions. Likewise, the judgment does not recite that the answers to the requests for admissions were considered. In any event neither of said components are essential to appellant’s contention that a material fact issue was raised in the record.

Appellant, Tom W. Stotts, sued appellees, Deral Wakefield and wife, Dorothy Wake-field and Donnie Q. Palmer and wife, Ray-dell Palmer, seeking damages resulting from major defects which appeared in a new residential building purchased from the defendants-appellees. Recovery was sought upon three theories, i. e. implied warranty, fraud and negligence. We shall be concerned here with only the record as it applies to alleged fraudulent representations.

Appellant alleged in effect that at the time of the execution of the sales contract leading to the purchase of the subject house that he informed the Palmers of his requirement that the slab foundation be of a thickness of four inches but that in September, 1964, he discovered such slab was only three inches in thickness. The suit was filed by appellant on May 4, 1966.

Appellant then alleged the false representation of a four inch slab induced the purchase, reliance thereon, damages, etc.; i. e. the elements constituting fraud, and that at all times the Palmers were acting in behalf of the Wakefields in making such representations. Among the defenses relied on by appellees is the 2-yr. statute of limitations; i. e. if any fraudulent representations were made concerning a four inch slab foundation in the inducement of the contract that more than 2 years elapsed from the time of the discovery of the lack of a four inch slab foundation (or the time within which a reasonable person should have discovered it) to the time of the filing of the suit. The summary judgment evidence is not completely uncontroversial with respect to the time of the discovery of major defects, or the time when they should have been discovered, (as distinguished from minor defects common to residences in the area) alleged to have been caused by a three inch slab foundation. We must, therefore, follow certain rules laid down by the Supreme Court of Texas in deciding if there was no genuine issue as to any material fact and that appellees were entitled to a judgment as a matter of law. These rules as applicable to the instant case have been specifically spelled out by the Supreme Court of Texas in Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co. (Tex.Sup.), 391 S.W.2d 41, 47 (1965) as follows:

“The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Smith v. Bolin, supra; Gulbenkian v. Penn, supra. Evidence which favors the movant’s position is not considered unless it is uncontradicted. If such uncon-tradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943).” (Emphasis added)

Honoring the rules just stated, we find that appellant, knowing the building code in the city specified four inches for a slab foundation, told the Palmers he wanted that thickness and they told him * * * they were very glad that they had a four-inch foundation.” The record also shows:

“Q. * * * That date (about September 21, 1964) refers to about the time you discovered the defects in that house, is that right?
A. Yes, sir.
* * * * * *
Q. Did you ever talk to him (Mr. Palmer) about the structural nature of the house itself?
A'. Only to the extent that Mr. Palmer did mention that they were very glad that they had a four inch foundation.
Q. Did you yourself ever specify what thickness you wanted in the concrete foundation ?
A. I knew that the code specified four inches, and I was glad it had a four inch foundation.
Q. Did you yourself say you wanted a four inch slab ?
A. Well, I am sure I must have, yes, sir.
* * Jjc * * *
Q. Did you know of any way at the time you negotiated with him concerning the sale of this house to check the thickness.of the slab?
A. No.
Q. Did you rely on the allegations that there was a four inch concrete slab underneath the house?
A. Yes, sir.
Q. Was that an inducement for you to enter into the sales contract?
A. Yes, definitely.” (Parenthetical statements ours)

Mrs. Stotts corroborated the testimony of her husband to the effect that Mr. Palmer told her husband before the sales contract was signed that the house had a four inch slab foundation.

Still honoring the rules by which we are bound in considering appeals from judgments summarily rendered, we find that the walls separated from the ceiling in some places; from the concrete slab in some places; that the concrete slab settled so much that water came up from underneath into the living room; that everywhere there is a door, one-half of the wall goes down with the concrete and one-half adheres to the ceiling, so the eleven or twelve doors have an angular position and will not close; and these defects were at least partly due to the concrete slab being only three inches in thickness. Additionally, appellant’s affidavit in answer to appel-lees’ motion for summary judgment swears that the type defects observed after first moving into the house were minor and not unusual in that area; that it was during September, 1964, that he first noticed substantial sinking of the slab foundation resulting in major defects; that the fireplace cannot be used because the smoke bellows out into the room where the fireplace has separated from the ceiling; that cold air enters the room along with insects “and other rodents”; that during the preliminary negotiations he was told by defendants that the house was constructed in a good and workmanlike manner; and that as a result of such negotiations he was induced to sign the sales contract. The house was a new one and was constructed by Wakefield.

There, of course, is some summary judgment evidence indicating the concrete slab is not just three inches in thickness and that the suit was filed more than two years after the defects were discovered. However, in passing upon a judgment summarily rendered, we must view the evidence in the light most favorable to the party opposing the motion, disregarding all conflicts in the evidence and accepting as true all evidence which tends to support the position of the party opposing the motion. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., supra and the cases therein cited on the point.

Appellees contend the discovery of the minor defects more than two years prior to the filing of the suit put appellant on notice and that the limitation period began to run at that time. They say the fact that he testified he was an engineer gives weight to this contention. We do not agree the record so shows. He testified he had taken a correspondence course in structural engineering and general engineering but he admitted he had never received a diploma or a degree of any sort. Additionally, in considering appeals from judgments summarily rendered, all conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., supra.

Appellees, by brief, contend that it is only where “an entire agreement clause” is not included in the written contract of sale that false representations may be shown to avoid the contract of sale for fraud, citing Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97. That case, along with all other appellate decisions on this particular point holding that parol evidence is inadmissible to vary the terms of a written contract containing a merger clause have been overruled. The Supreme Court of Texas in Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233, in a very forthright discussion cited and discussed many cases by the appellate courts of Texas at every level on the admissibility of parol evidence to prove that a written contract containing a merger clause (referred to by appellant as “an entire agreement clause”) was induced by fraud. The quote stated:

“A review of the Texas cases on the question reveals conflicting decisions and indicates a resulting confusion which can hardly be resolved or explained away with nice distinctions.”

The line of cases such as Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47 and culminating in the Elkins case which followed it were specifically overruled and the pronouncements contrary thereto and in conflict therewith represented by Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; Texas and P. Ry. Co. v. Presley, 137 Tex. 232, 152 S.W.2d 1105; and Texas & N. O. Ry. Co. v. Thompson, Tex.Com.App., 12 S.W.2d 963 were adopted and reaffirmed. In doing so, the Court followed a precedent set by the Supreme Judicial Court of Mass, in Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551, 133 A.L.R. 1349. The Supreme Court of Texas noted that prior decisions of the Massachusetts court had been in the same state of conflict and confusion on this identical point as the Texas decisions, and then quoted with approval the following holding by the Massachusetts Court of last resort:

“As a matter of principle it is necessary to weigh the advantages of certainty in contractual relations against the harm and injustice that result from fraud. In obedience to the demands of a larger public policy the law long ago abandoned the position that a contract must be held sacred regardless of the fraud of one of the parties in procuring it. No one advocates a return to outworn conceptions. The same public policy that in general sanctions the avoidance of a promise obtained by deceit strikes down all attempts to circumvent that policy by means of contractual devices. In the realm of fact it is entirely possible for a party knowingly to agree that no representations have been made to him, while at the same time believing and relying upon representations which in fact have been made and in fact are false but for which he would not have made the agreement.”

It should also be noted that the instant case does not involve an alleged fraudulent statement by an agent where there is an innocent principle involved, but it was the principle making the alleged fraudulent representations of a four inch slab foundation under appellant’s theory of recovery for fraud in the inducement of the contract.

Of course, defendants deny in their answer to the request for admissions that the slab foundation is of the thickness of only three inches. This is one of the contested facts that precludes the rendition of a summary judgment. It is a material fact inquiry because there is some probative evidence that the failure to have a four inch foundation slab resulted in the major defects for which damages are sought. Accordingly, the judgment of the trial court is reversed and remanded for a trial on its merits.


author: TITUS, Judge.

text:
    Ray CLINTON and Charles R. Conn, Plaintiffs-Respondents, v. George STAPLES, Jr., Defendant-Appellant.
    No. 8667.
    Springfield Court of Appeals. Missouri.
    Dec. 7, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 4, 1968.
    Application for Transfer Denied Feb. 12, 1968.

      W. Clifton Banta, Charleston, for defendant-appellant.
    Dempster, Edwards & Robison, Sikeston, for plaintiffs-respondents.
   TITUS, Judge.

Plaintiffs and defendant were financiers and promotor, respectively, of a shopping center in Poplar Bluff, Missouri. The venture eventually aborted and this appeal by defendant from an adverse judgment entered in a court-tried case hosted by the Circuit Court of Mississippi County is the apparent sole survivor of the undertaking.

Defendant had procured real estate options before the parties reached their “understanding” on the center. He later obtained additional options and contracts. On February 15, 1956, plaintiffs gave defendant $6,000 and defendant assigned his interest in the options to the plaintiffs. All agree that $3,500 of the $6,000 was to reimburse defendant for what he had paid or advanced for the options and contracts. The reason the extra $2,500 was paid defendant by plaintiffs constitutes the principal factual fester in this case. Defendant is adamant the $2,500 was profit legitimately due him on the sale of his options to plaintiffs. Defendant categorically denies, as plaintiffs urge, the $2,500 represented an advance on commissions he may have earned had the shopping center become a reality and which he agreed to repay if the adventure came to naught. Plaintiffs insist many demands were made of defendant to repay the $2,500, whereas defendant testified the only request he could recall came on the day he signed the promissory note now in litigation.

On the morning of December 18, 1958, plaintiffs called upon defendant at his home and discussed repayment of the $2,-500. Although defendant related “I told them that I did not owe them anything,” he telephoned his lawyer to prepare a $2,-500 note payable to plaintiffs in ten semiannual installments of $250 commencing July 2, 1959. That afternoon defendant signed the note in his counselor’s office and it was subsequently mailed to plaintiffs by the attorney as defendant directed. Defendant defaulted and plaintiffs filed a suit on the note which they dismissed without prejudice on September 13, 1960, when defendant remitted $750 to bring the note payments to date. Thereafter defendant, verbally and in writing, assured plaintiffs he would pay the balance of the note, but when he reneged, plaintiffs filed this second action on the note and obtained a $2,-334.50 judgment which represents the balance of the principal, interest and attorney fees due thereon. The judgment additionally favored plaintiffs on both counts of defendant’s counterclaim.

Defendant answered the “note was given to plaintiffs” and the $750 payment thereon was made “wholly without consideration.” The initial count of the counterclaim averred defendant’s entitlement to a refund of the $750 note payment and supplicated judgment against plaintiffs in that sum. Defendant petitioned a $3,780 judgment against plaintiffs in the second portion of the counterclaim for unpaid commissions allegedly due under a parol lease-negotiating contract. On this appeal defendant excepts to and by brief' challenges only the judgment of the trial court as it relates to the petition and Count One of the counterclaim. Ergo, we treat and consider all issues involved with Count Two of the counterclaim as forsaken. V. A.M.R. 83.05(a) and (e); Mound City Supply Company v. Woodland Development Corp., Mo.App., 414 S.W.2d 805, 807-808(3); Hastings v. Coppage, Mo., 411 S.W.2d 232, 235(3); Brackett v. Easton Boot and Shoe Company, Mo., 388 S. W.2d 842, 844(1).

Defendant’s charge of failure of consideration is an affirmative defense and his counterclaim seeking refund of the $750 was an independent cause of action. The burden of proof attending both was upon defendant. V.A.M.R. 55.10; V. A.M. S. § 509.090; Town & Country Shoes Federal Credit Union v. Cramer, Mo.App., 350 S.W.2d 281, 285(5); Cross v. Robinson, Mo.App., 281 S.W.2d 22, 26(9). Without recourse, defendant placed all his affirmative and defensive proverbial eggs in a single basket by insisting the reason, and the only reason, no consideration existed for either the note or the payment was that the' $2,500 paid him constituted profit on the sale of the options. Plaintiffs, by denying this and advancing their own divergent reason for the payment, immediately confronted the fact finder with the task of determining whose testimony was the more plausible. Defendant by brief says if his evidence be “believed by the court” his position should be sustained. We need not now pause to dispute this conclusion but neither may we be heedless of the fact a court may decline to believe the testimony of any party. Southwestern Bell Tel. Co. v. Crown Insurance Co., Mo.App., 416 S. W.2d 705, 711(6). Where, as here, the cleavage in the testimony of a court tried case is acute, we cede great deference to the advantageous position of the knowing and skilled trial judge to digest the deportment of the witnesses, appraise their attitudes and interpret their inclinations in the cause. Though we are bound to arrive at our own determination, after a resurvey of the law and the evidence, the trial court’s, judgment “shall not be set aside unless clearly erroneous.” V.A.M.R. 73.01 (d); V.A.M.S. § 510.310, subd. 4; Harrison v.. Harrison, Mo.App., 417 S.W.2d 39, 43(3); Midwestern Realty Corp. v. City of Grandview, Mo.App., 416 S.W.2d 35, 39(6); Wynn v. McMahon Ford Company, Mo. App., 414 S.W.2d 330, 335-336(4-5).

Defendant was no babe in the business world woods. He pictured himself as being “in the shopping center development, business” and one who had “put several shopping centers together.” In the matter-concerned, he bargained for and secured real estate options and contracts, some of which were subject to escrow handling, and additionally negotiated for shopping center leases with representatives of nationally known business corporations. Armed with this information, any bent for credulity possessed by the trial court would be corrected when a man of defendant’s acumen testified: (a) he did not advise the lawyer who drew the note or his able defense counsel in the first suit on the note concerning the “facts” he so readily recounted in the present cause, and (b) with full knowledge of the absence of any obligation to plaintiffs in any sum, he voluntarily executed and delivered to them a $2,500 promissory note, made a payment thereon of $750, and repeatedly promised to pay the balance thereof. No findings of fact were requested or filed. Consequently, we are uncertain the learned fact finder resolved the case simply upon disbelief of defendant’s evidence. Nevertheless, if this was the sole ground for the judgment, we cannot say it was clearly erroneous.

If, as defendant assures, he knew on the date he executed the note “I did not owe them [plaintiffs] anything,” he is presumed to have been possessed of the same knowledge on the day he made the $750 payment. Miller v. Plains Insurance Company, Mo.App., 409 S.W.2d 770, 775(9); 1 Merrill on Notice, Sections 37 and 43. The payment, therefore, was not made at a time defendant thought he was obligated to pay [Meissner v. Standard Ry. Equipment Co., 211 Mo. 112, 109 S.W. 730, 737(17)] or by reason of a mistake of fact or because of a mutual mistake. Delmar Bank of University City v. Douglas, Mo.App., 366 S.W.2d 80, 83(1, 2). No contention is advanced the payment was induced by fraud or duress, and in such circumstances “a payment, even of an illegal demand, voluntarily made with full knowledge of the facts cannot be recovered.” Staples v. O’Reilly, Mo.App., 288 S.W.2d 670, 676(14) and cases there cited in footnote 11. In any event, it would appear the judgment nisi denying recovery to defendant on Count One of the counterclaim is correct.

Plaintiffs’ evidence supported their theory the $2,500 given defendant was an advance on commissions to be earned negotiating leases with shopping center tenants, but if the shopping center was not completed (which would render the leases inoperative) defendant agreed to repay the advancement. Defendant unequivocally denied this was so, but now urges that even if we reject his testimony and accept plaintiffs’ evidence, he is, nonetheless, entitled to a judgment on the petition and Count One of the counterclaim. However, defendant is not entitled to predicate a recovery under the counterclaim on a theory contrary to and entirely incompatible with his own positive evidence. Hopkins v. Sefton Fibre Can Company, Mo. App., 390 S.W.2d 907, 911(2). It is also indicated a defendant may not rely on a defense which has been directly repudiated by his own testimony. Martin v. Kansas City, Mo., 340 S.W.2d 645, 647(1); Davis v. Breithaupt, Tex.Civ.App., 400 S.W.2d 390, 393(2); Miller v. Miles, Tex.Civ.App., 400 S.W.2d 4, 10(13); 32A C.J.S. Evidence § 1040(3) at p. 778. Be that as it may, we look further.

The principle seemingly relied on by defendant is “When the contract contains no agreement, express or implied, on the subject of repayment, the great weight of authority supports the view that where advances are to be charged to and deducted from the commissions agreed to be paid to the agent as they accrue the principal cannot recover from the agent the excess of advances over commissions earned, and the principal is limited to the commissions actually earned for recoupment of the excess.” Hamilton Fire Insurance Co. v. Cervantes, Mo.App., 278 S.W. 2d 20, 25(8), and cases cited. Defendant argues that if the $2,500 was an advance commission he was under no personal obligation to repay because the sum was only repayable from commissions that were to be earned and no consideration existed for either the note or the payment he made on the note. This ignores plaintiffs’ evidence (which defendant says we may accept) the contract did, in fact, contain an agreement on defendant’s part to personally repay the $2,500 if the shopping center was not activated. More importantly and to the point, the authorities, supra, “we think, do not support defendant’s contention in the instant case, since by the notes in suit defendant expressly promised to repay to plaintiff[s] the amounts thus advanced to him.” Missouri State Life Ins. Co. v. Allen, Mo.App., 251 S.W. 751, 753.

The judgment of the trial court is affirmed.

HOGAN, P. J., and STONE, J., concur.


author: WOLFE, Judge.

text:
    Mary HAMMON, Plaintiff-Respondent, v. Harry E. GENTEMANN, by Mary Gentemann, Guardian ad Litem, Defendant-Appellant.
    No. 32638.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied Dec. 26, 1967.
    Application for Transfer Denied Feb. 12, 1968.
    Lusser, Hughes & Lusser, Alfred J. Rathert, St. Louis, for defendant-appellant.
    Marshall & Littmann, Richard A. Litt-mann, Murphy & Kortenhof, Joseph M. Kortenhof, St. Louis, for plaintiff-respondent.
   WOLFE, Judge.

The plaintiff brought this suit for damages arising out of personal injuries. The injuries were occasioned by the defendant’s automobile colliding with an automobile the plaintiff was driving. The defendant filed a counterclaim. The trial resulted in a verdict and judgment for the plaintiff in the sum of $4,000 and the defendant prosecutes this appeal.

Plaintiff’s case was submitted on both primary and humanitarian negligence. It is the contention of the defendant that the trial court erred in overruling its motion for a directed verdict at the close of all the evidence. He first asserts that no case of primary negligence was made because the plaintiff was guilty of contributory negligence as a matter of law. He next asserts that no case was made on the humanitarian theory in that there was no evidence upon which the jury could find that the defendant had timely notice of plaintiff’s peril. He concludes with the assertion that since no case was made on either primary or humanitarian negligence the judgment of the trial court should be reversed and a judgment entered for the defendant.

The accident occurred on Gravois Avenue in the City of St. Louis on March 3, 1964. In the general area where it occurred Gravois Avenue runs in a north and south direction. It is sixty feet wide and has three traffic lanes on both sides of its center line. Allemania Avenue, which is twenty feet wide, runs east and west and terminates at the east line of Gravois. On the west side of Gravois is “McDonald’s Hamburger” place. It has two entrances from Gravois and the south entrance is about directly opposite Allemania Avenue. It is where Allemania would continue west-wardly if it did not end on the east side of Gravois. Gravois has a blacktop surface and its traffic lanes are marked.

The plaintiff, Mary Hammon, was returning home from an evening visit at her daughter’s. She was driving her own automobile which was a 1963 Rambler in good condition. With her was a Mrs. Mar-quardt. They were friends and widows who lived together. They were going north on Gravois and intended to stop at McDonald’s for hamburgers. Plaintiff was traveling in the lane nearest the center line when she was a block south of Allemania but a car ahead of her stopped to make a left turn and she went to the right of it. As she did this she put on her right turn signal and when she passed the car she again went to the lane nearest the center line of Gravois so that she could make a left turn into the south driveway of McDonald’s. There were no northward bound cars ahead of her or to her right. She turned on her left turn signal as she approached the place of her intended left turn.

One can see several blocks to the north on Gravois Avenue from the point where plaintiff went into her left turn. She did not see the defendant’s car. The only car that she saw southbound toward the intersection was in the lane nearest the center line and had its left turn light flashing for a turn into Allemania. She was traveling at a speed which she estimated to be variously from ten to fifteen miles per hour and from thirteen to fifteen miles per hour as she turned toward the south entrance to McDonald’s lot. When the front end of her car had crossed to a point where it was into the curb lane and about to enter the McDonald driveway it was struck by the car of the defendant which was traveling south on Gravois. Plaintiff did not see defendant’s car until it struck hers.

The southbound car signaling for a turn into Allemania that plaintiff saw as she approached the point of her left turn was driven by a Mr. McKeever. He testified that he noticed the left turn blinker on plaintiff’s car when she was one hundred fifty to two hundred feet south of him. Except for his own car he saw no southbound traffic. He made his left turn at about the same time plaintiff was making her left turn. To his right he saw the defendant’s car for the first time just as it struck plaintiff’s car.

The defendant was a seventeen year old youth who was driving his mother’s Chevrolet. He had been to a basketball game with a girl from his neighborhood. She was a passenger in his car and they were going to meet some friends at “Chuck-A-Burger.” Apparently this was another hamburger stand located on Gravois about a mile south of McDonald’s. His car entered Gravois Avenue at Loughborough some distance north of Allemania. He traveled in the center lane of Gravois until the car ahead of him signaled for a left turn into Allemania. The defendant turned then into the center southbound lane. This was when he was about one-half block from the intersection. He was traveling at a speed of thirty miles per hour and his speed remained unchanged. He was looking to his right at the McDonald place and did not see plaintiff’s car turn across Gravois ahead of him until he collided with her.

No point is raised in relation to the damages awarded plaintiff so we will not set out the injuries she sustained. Neither is any point raised as to the judgment against the defendant on his counterclaim. This leaves nothing for review in relation to it. Heuer v. Ulmer, Mo., 273 S.W.2d 169; Caldwell v. First National Bank of Wellston, Mo.App., 283 S.W.2d 921.

As stated the only contention made by the appellant is that the court erred in overruling his motion for a directed verdict at the close of all the evidence and erred in denying the after-verdict motion for judgment for the defendant. As to the contention that the plaintiff was guilty of contributory negligence as a matter of law we are cited to Frandeka v. St. Louis Public Service Co., 361 Mo. 245, 234 S.W. 2d 540; James v. Berry, Mo.App., 301 S.W.2d 530; Bracken v. Koch, Mo.App., 404 S.W.2d 201. These cases all re-state the well established rule that a failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law. The plaintiff in this case testified that she did look but did not see the car but the evidence permits a valid inference that the car driven by the defendant was not plainly visible as it was behind the southbound car which later made a left turn into Allemania. As stated in Slaughter v. Myers, Mo., 335 S.W.2d 50, 1.c. 54: “* * * What constitutes negligence in failing to keep a lookout in any direction at any particular time or place depends on the conditions and circumstances and usually is a jury question. * * * ” See also Sander v. Callahan, Mo., 351 S.W.2d 691; O’Bryant v. Black and White Cab Co., Mo.App., 350 S.W.2d 833. We rule that the plaintiff was not contributorily negligent as a matter of law. This is the only point raised in relation to the submission on primary negligence and consequently all that we review. It follows that a submissible case was made.

Since the only point before us is the question of whether or not the court erred in overruling the motion for a directed verdict and the motion for judgment after verdict we need not consider other points raised for consideration on humanitarian negligence. It is obvious that if the plaintiff made a case on any theory pleaded the court could not direct a verdict for the defendant as stated in Nelson v. Wabash Railroad Company, Mo., 300 S.W.2d 407, 1.c. 409: “ * * * if plaintiff made a case under any theory submitted, then defendant’s motion for a directed verdict and its motion after verdict for judgment were both properly denied. * * * ” See also DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Henrickson v. Resnik, Mo.App., 390 S.W.2d 610.

For the reasons stated the judgment is affirmed.

ANDERSON, P. J., and RUDDY, J., concur.


author: SAM E. SEMPLE, Chief Judge.

text:
    Joseph Floyd HARRIS, Plaintiff-Respondent, v. QUALITY DAIRY COMPANY, a Corporation, Defendant-Appellant.
    No. 32713.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied Dec. 26, 1967.
    Application for Transfer Denied Feb. 12, 1968.

      Gentry, Bryant & Sheppard, Arnot L. Sheppard, Robert Nagel Jones, St. Louis, for defendant-appellant.
    Marvin G. Marshall, Hoffman & Shostak, St. Louis, for plaintiff-respondent.
   SAM E. SEMPLE, Chief Judge.

This is a suit to recover damages for personal injuries suffered by plaintiff and damage to his automobile as a result of a rear end collision. Plaintiff obtained a verdict in sum of $4,000 for personal injuries and $175 for damages to his automobile. Defendant appeals from the judgment rendered on the verdict. The parties will be generally referred to as they were designated in the trial court.

The collision occurred on Page Avenue in the City of St. Louis while both plaintiff’s automobile and defendant’s truck were traveling west. Plaintiff was following a public service bus and defendant’s truck was following plaintiff immediately before the collision. The bus pulled over and stopped to discharge passengers.

Plaintiff’s version of the facts were these: He followed the bus in the right lane of traffic and when the bus stopped to discharge passengers he stopped about 30 feet directly in back of the bus and turned on his left turn blinker light so that when the traffic in the next lane to his left cleared he could pull out and go around the bus. He looked in his rear-vision mirror and saw defendant’s truck approaching from the rear at about 30 miles per hour about four car lengths back of his car, that he looked away and shortly his car was struck in the rear by defendant’s truck. That after the collision his car was about 10 feet from the rear of the bus. Plaintiff stated that all the time he was stopped back of the bus he was sitting in his car with it in gear, with his brakes firmly set and his left blinker light turned on.

Defendant’s version of the facts were that: The bus which plaintiff was following pulled over to the curb to discharge passengers and when it stopped only about two feet of the rear end of the bus remained in the lane that both plaintiff and defendant’s truck were traveling. Defendant’s driver testified that when the bus pulled over to the curb to discharge passengers he thought that plaintiff was going to proceed on going straight and when plaintiff came to a sudden halt his truck hit the rear of plaintiff’s car. Defendant’s driver also testified that plaintiff gave no signal that he was going to stop or turn left before he stopped his car and that plaintiff’s car was alongside the bus with the rear end of the car even with the rear end of the bus when plaintiff stopped just prior to the collision.

Plaintiff submitted his case under the rear end collision doctrine and a contributory negligence instruction was given on the theory plaintiff stopped without first giving an adequate and timely signal of his intention so to do. Defendant requested and the trial court refused to give Instruction No. G, which reads as follows:

“Your verdict must be for defendant if you believe:
“First, Plaintiff was negligent as submitted to you in Instruction No_, and
“Second, defendant was negligent as submitted to you in Instruction No. _, and
“Third, Such negligence of both plaintiff and defendant combined and concurred to cause directly and proximately the collision mentioned in evidence.”

Defendant contends that the trial court erred in refusing to give Instruction G and argues that one of the rights belonging to defendant is that if the evidence established that if both plaintiff and defendant were guilty of proximal, causal, mutual and concurrent negligence then plaintiff cannot recover against defendant. Defendant argues that this is a matter of substantive right in which he was entitled to have Instruction G separately submitted to the jury in addition to the contributory negligence Instruction No. 5 which was given to the jury by the court. Defendant relies on a line of cases involving the contributory negligence of a plaintiff, wherein the negligence of a defendant in that affirmative defense is presupposed. Citing Doisy v. Edwards, Mo., 398 S.W.2d 846; Hornstein v. United Rys. Co. of St. Louis, 97 Mo.App. 271, 70 S.W. 1105; Tillman v. St. Louis Transit Co., 102 Mo.App. 553, 77 S.W. 320; Rodgers v. St. Louis Transit Co., 117 Mo. App. 678, 92 S.W. 1154, 1156; Schaabs v. Woodburn Sarven Wheel Co., 56 Mo. 173, 174.

It is true that no one can recover for an injury of which his own negligence in part or in whole was the immediate and proximate cause. Schaabs v. Woodburn Sarven Wheel Co., supra; Doisy v. Edwards, supra. However, it has been held that the better practice is to give only one instruction fully and clearly covering the subject of contributory negligence than to-give a number of instructions with useless repetitions using the term concurrent, etc., Jones v. Rash, Mo., 306 S.W.2d 488, 492; Barr v. Missouri Pac. R. Co., Mo., 37 S.W. 2d 927, 930.

In this case the defendant requested and the court gave Instruction No. 5 covering its defense of contributory negligence which read in part as follows:

“Your verdict must be for the defendant, whether or not defendant was negligent, if you believe: * *

This instruction clearly and succinctly directed the jury to find for the defendant “whether or not defendant was negligent” if they believed the stated facts-that plaintiff was guilty of contributory negligence. The instruction covered the situation where the jury could find both parties negligent. The giving of Instruction G would have been repetitious and the trial court properly refused the instruction.

Defendant next assigns as error the giving of Instruction No. 4 because it permitted the jury, in determining the damages to be awarded plaintiff, to take into consideration future pain and suffering when defendant asserts there was no evidence tending to establish that plaintiff would suffer in the future. At the trial plaintiff testified that prior to the accident on June IS, 1964, that he had never had any difficulties with his back, neck or shoulders and that he had never seen a doctor for any condition relative to his back, neck or shoulders. That at the time of the trial on May 2, 1966, plaintiff testified that he still had headaches and that he had pains that started in his neck and went all the way down to the lower part of his back. Dr. Hoard testified on behalf of plaintiff that he first treated plaintiff on the evening of the day of the accident. That his diagnosis was that plaintiff had a cervical sprain and strain, a lumbar sprain and a sprain of the right shoulder. That he gave plaintiff cortizone, a muscle relaxant, and ultrasonic treatments to the back, neck and shoulder. That he saw plaintiff 18 times within the two months following the accident giving ultrasonic treatment and medication for pain. That he examined plaintiff on the Saturday before the trial and plaintiff still complained of pain in the back and neck. Dr. Hoard gave the following testimony as to future pain:

“Q. Now, Doctor, would you now assume further and assume these statements as fact, that he has had this continuing pain since June 15 of 1964, referable to his back, shoulders and neck, and assume that this pain and discomfort is continuing until the present date; based upon reasonable medical certainty, if you have an opinion, do you have an opinion as to whether these injuries are permanent? A. Yes Q. All right. Will you tell the jury what your opinion is, based upon reasonable medical certainty? A. Since he is still complaining for two years, he will probably have some degree of back pain in all probability.
Q. In the future? A. In the future.”

Defendant argues that the testimony of Dr. Hoard of the probability of future pain by plaintiff amounts to no more than mere speculation of the possible. It is noted that the quoted portion of Dr. Hoard’s testimony came in without objection and there was no motion made to strike this testimony. It appears that the Doctor’s testimony amounts to more than mere guess or conjecture. The evidence shows that plaintiff was under his care for a long time and plaintiff’s complaints continued right up to the time of trial. Plaintiff’s evidence concerning his injuries and the pain experienced up to the date of trial furnished a reasonable basis for an inference of future pain. The . professional .opinion of the expert witness was more than a mere assurance that future pain was scientifically possible. Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, 301; Kenney v. J. A. Folger & Co., Mo.App., 192 S.W.2d 73, 78.

The testimony of the plaintiff that he was still suffering pain and discomfort at the time of the trial almost two years after the accident coupled with the testimony of Dr. Hoard that the pain would in all probability continue in the future is ample evidence to justify the giving of Instruction No. 4 on future pain and suffering. Pettus v. Dubman, Mo.App., 389 S.W.2d 373, 377, 378.

Defendant’s next assignment is that the trial court erroneously limited defendant’s cross-examination of Dr. Hoard. The transcript of the record reveals the following during Dr. Hoard’s cross-examination:

“Q. There are a great many things which will cause the conditions you found of soreness and pain to the back and the neck, aren’t there? A. Yes, sir, there are. Q. In fact, would you say, Doctor, that probably fifty percent of the people have trouble with their backs at one time or another? MR. MAR-' SHALL: Well, Your Honor, I think that is an improper question and has no bearing on the issues; it’s irrelevant and immaterial. THE COURT: Sustained. (The following proceedings were had out of the hearing of the jury:) MR. SHEPPARD : The defendant now offers to prove by this witness that a great many people — I can’t say that he would say fifty percent — but I anticipate probably he would, have trouble with their back who have never received any injuries of the character involved in this case. MR. MARSHALL: I will object to that. THE COURT: I will sustain it.”

Defendant contends that the cross-examination was too restricted to permit defendant to thoroughly test the credibility and probative value of the testimony of witness Hoard.

It is well established that wide latitude is to be allowed on cross-examination. No hard and fast rule can be laid down regarding the extent to which cross-examination may go, but any pertinent inquiry having some reasonable bearing on the issues in the case, or tending to impeach or discredit the witness is generally proper on cross-examination. Maul v. Filimon, Mo. App., 315 S.W.2d 859, 866. It is also well settled that the scope and extent of cross-examination of a witness in a civil case is discretionary with the trial court and this is particularly so with regard to collateral or immaterial matter. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 649, 157 A.L. R. 598; Maul v. Filimon, supra. Testimony that probably fifty percent of the people have trouble with their backs at one time or another or the offer of proof that a great many people have trouble with their back who have never received any injuries of the kind involved in this case is not relevant or material to any issue of plaintiff’s injuries in this case. The trial court did not -abuse its discretion by sustaining objections to this testimony.

Defendant next contends that plaintiff did not make a submissible case and the trial court erred in submitting the case to the jury. Defendant argues that as plaintiff was the only witness offered by plaintiff to testify as to how the accident occurred, his testimony was so inconsistent that he could not make a submissible case. Defendant bases this contention on plaintiff’s testimony that the impact of defendant’s truck with the rear of his automobile was so severe that the collision bent the rear bumper in and knocked out all of the tail lights and backup lights, bent the trunk lid, busted the motor mounts and knocked the linkage off of the transmission. Defendant then points to testimony of plaintiff “ * * * if the motor mount is busted, the motor will drop down and you cannot shift or nothing.” This particular testimony was objected to by defendant and asked to be stricken and the objection was sustained. Defendant then points to testimony that after the accident plaintiff drove his car on to work. Defendant appears to contend that a submissible case was not made because of a claimed conflict in plaintiff’s testimony as to the severity of the impact and its results. Defendant cites Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647, and other cases in support of its position.

This contention is not well taken for several reasons. First, there is no showing that plaintiff’s testimony was contradictory as his testimony that * * * if the motor mount is busted * * * you cannot shift or nothing” was on objection of defendant stricken and could not be considered and thus could not be in conflict with plaintiff’s testimony that he drove the car to work after the accident. Furthermore such conflict if it did exist goes only to the extent of the damage done to plaintiff’s vehicle and not to the basic issue of liability of defendant. There was no dispute in the evidence that defendant’s truck did collide with the rear end of plaintiff’s vehicle. Taking the evidence in the light most favorable to the plaintiff and without restating the evidence it is concluded that plaintiff made a submissible case under the rear end collision doctrine. Hays v. Proctor, Mo.App., 404 S.W.2d 756, 758, 760.

Defendant’s next assignment appears to be directed to the weight of the evidence. The contention made by defendant seems to be that plaintiff’s testimony that he followed the bus and stopped behind it when the bus stopped and was hit from behind by defendant’s truck with such a violent impact as to break the motor mounts on his car, knock the linkage off the transmission, and cause his personal injuries but was still able to drive his car on to work when considered with defendant’s evidence that the bus pulled off to the right to discharge passengers and plaintiff continued on in an open lane and then stopped suddenly and the uncontradicted evidence that the impact was so light that the dairy goods on shelves of defendant’s truck were not disturbed, established conclusively that plaintiff’s evidence cannot be accepted. This contention obviously goes to the weight of the evidence which is for the jury to determine. “ * * * There is, perhaps, no more firmly established doctrine than that on appeal from a judgment rendered on a verdict of a jury an appellate court is not authorized to weigh the evidence. * * Kells v. Pevely Dairy Co., Mo.App., 393 S.W.2d 61, 65. Whether a jury’s verdict is against the weight of the evidence is a question for the trial court alone. Wilcox v. Coons, 362 Mo. 381, 241 S.W.2d 907, 917. The contention is without merit.

Defendant’s last assignment is that the trial court over defendant’s objection erroneously permitted plaintiff to express his opinion as to the reasonable market value of his automobile without plaintiff being qualified to express such opinion. Defendant cites the case of Landon v. Koch, Mo.App., 393 S.W.2d 66, 70, and argues that the mere fact plaintiff owned the vehicle does not qualify him to express an opinion of the market value as there must be some showing that he had acquired some ability to judge the vehicle and express an opinion on its value based upon more than a mere guess. This contention is not well founded. The record shows that when plaintiff was asked if he had an opinion as to the reasonable market value of his car prior to the accident, defendant’s counsel asked to question plaintiff before the court allowed him to express such opinion. Plaintiff testified in answer to defense counsel’s questions that he bought the car from a finance company for $1,250, that he tried to borrow money on the car and couldn’t get more than $1,250 and that he looked at other cars to purchase and they all ran the same price. The court then overruled a defense objection that the witness was not qualified and permitted witness to testify that the value of the car was “about $1,250.” The rule in Missouri as stated in Landon v. Koch, supra, is that an owner may testify as to the reasonable value of an article of personalty which has been damaged or destroyed without further qualification. The qualification of the owner as a witness to value does not rest on the fact that he has legal title, but rather on the fact that ordinarily the owner knows the property intimately and is familiar with its value. It is concluded that there was sufficient evidence here that plaintiff was familiar with the market value of this car as brought out by defense counsel’s interrogation and the objection to the opinion of witness as to the market value of the car was properly overruled.

For the foregoing reasons the judgment of the Circuit Court is affirmed.

' ANDERSON, P. J., and WOLFE, J., concur.


author: BRADY, Commissioner. PER CURIAM:

text:
    Billy W. RAWSON, by and through his Next Friend, Orville Rawson, Plaintiff-Appellant, v. Herbert ELLERBRAKE and Emma C. Ellerbrake, Defendants-Respondents.
    No. 32669.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1967.
    Application for Rehearing or for Transfer to Supreme Court Denied Dec. 26, 1967.
    Application for Transfer Denied Feb. 12, 1968.
    Mogab & Hughes, St. Louis, for plaintiff-appellant.
    Derrick & Holderle, Tyree C. Derrick, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

Plaintiff received verdict and judgment for $10,000.00 in the trial court. Defendants’ motion to set aside the verdict and judgment and to direct a verdict in their favor was sustained and plaintiff appeals. Defendants’ after-trial motion and the trial court’s ruling thereon was on the ground plaintiff had failed to make a sub-missible case and for that reason we will state the evidence in the light most favorable to the plaintiff.

On August IS, 1963, plaintiff was six years and eight months old. He lived with his parents in defendants’ three-family apartment dwelling on John Avenue in the City of St. Louis. The building was on the corner of John Avenue and North Floris-sant Road and was so constructed that there was no front yard but there was a yard to the side and to the rear. There was a building in the rear yard which had been used as a butcher shop at one time. About six to nine months prior to the day plaintiff was injured defendant Herbert Ellerbrake together with his son and nephew had placed a wrecked automobile in this building for the convenience of the nephew who was in the process of rebuilding another car using pieces taken from the wrecked automobile. At the time plaintiff fell the automobile had been placed on concrete blocks, the window glass was out, and the hood and certain other parts had been removed. Plaintiff had been playing with his brother and another child and had climbed to the top of the automobile. He leaned forward head first trying to “spit” on his brother and the other child who were inside the automobile and fell to the concrete floor receiving serious injuries which need not be detailed here.

While we must be primarily concerned with the submission made in the verdict directing instruction, the pleadings are of interest. We digress to note that the petition upon which this case was tried presented plaintiff’s theory of landlord and tenant alleging this building was “ * * * provided and maintained for the common use * * * ” of the plaintiff and his parents with defendants maintaining control thereof. In the petition it is alleged that plaintiff’s-fall and consequent injuries “ * * * were the direct and proximate result of defendants’ maintaining a nuisance and being negligent in the following respects: * * (Emphasis supplied.) The sub-paragraphs of that paragraph of the petition allege defendants’ negligence as placing the automobile in the building where they knew or should have known children were likely to play and be injured; failure to remove said automobile from the building when they knew or should have known children were playing on it and likely to be injured; failing to restrict the use of the building area so as to keep plaintiff and other children of tender ages from playing therein and on this automobile; and failing to warn said children against playing on the automobile. With respect to the theory of maintaining a nuisance the petition contains a separate sub-paragraph alleging “That the defendants negligently caused and permitted a condition to exist which constituted a nuisance.”

Plaintiff’s verdict directing instruction was a modified version of MAI 22.05 requiring the jury to find for the plaintiff if they believed defendants permitted this partially dismantled and wrecked automobile to be placed in this building at the rear of the house plaintiff was occupying; that this building was in the possession and control of defendants and used by defendants and the plaintiff and his family with defendants’ consent; that “defendants knew or by using ordinary care should have known, that children while playing in said rear building would play upon and about and in the aforesaid wrecked and partially dismantled automobile; that defendants could reasonably have anticipated that children, while so playing, would sustain injury and that therefore said place was not reasonably safe;” and that defendants failed to use ordinary care to remove the automobile as a direct result of such failure plaintiff was injured.

There was no issue raised during trial, neither is any raised in this appeal requiring us to further consider plaintiff’s allegation of the maintenance of a nuisance. As plaintiff’s verdict directing instruction makes abundantly clear, the issues were joined and the case tried and submitted upon the theory of negligence in failing to use ordinary care to remove the automobile.

The relationship of the parties as to this building at the rear of the house was hotly disputed. We will not burden this opinion by stating the evidence pertaining to that issue for the reason that taking plaintiff’s case in its strongest light; i. e., assuming arguendo the relationship of the parties was in fact landlord and tenant as to this building, we have determined that plaintiff did not make a submissible case and the trial court’s action in sustaining defendants’ after-trial motion must be affirmed.

The reported cases in this jurisdiction make abundantly clear our adoption and approval of the rules set forth in Restatement, Second, Torts § 360, p. 250, which reads as follows: “A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” (Emphasis supplied.) Did the defendants create or maintain a “dangerous condition” by placing this automobile in the rear building?

The case of Terry v. Sweeney, Mo.App., 420 S.W.2d 368, an opinion by Judge Anderson of this court, handed down September 19, 1967, presents a somewhat similar factual situation. However, while similar it is not the same and the distinctions compel a different result. In Terry it clearly appeared from the evidence that the bed was defective and was known to be defective by the landlord’s agent. Thus in the opinion in the Terry case the following appears: “Was the bed a dangerous instrumentality? Mrs. Benka testified that the bed spring was broken and the brad that held the bar which connected the short leg to the rounded leg was loose, so that if the legs were not pulled out far enough the legs would fold under when the bed was sat upon. * ■ * * It thus appears that the bed had some infirmities which a jury could reasonably find rendered it dangerous when used by one not familiar with its condition or when not set up properly.” And later in the same opinion it is stated: “It appears that the bed contained defective parts. Mrs. Benka, defendant’s manager, knew of this condition. She also knew that if the bed was not set up properly it would collapse when sat upon.” In the instant case there is no contention the automobile was in any way defective. It was missing some parts which had been taken from it but there was no proof nor contention made what remained was defective. It should be pointed out also that the automobile itself did not injure the plaintiff in the instant case while in Terry v. Sweeney, supra, it was the defective bed that caused the injury. Plaintiff did not strike a part of the automobile as he fell. Neither was there any allegation any sharp or protruding or broken or missing part of the automobile caused the fall. Plaintiff’s evidence simply is that the child was playing on top of the automobile, fell off of it, and was injured, not by the automobile, but by the contact of his head with the concrete floor. Under these circumstances we cannot consider the automobile a dangerous condition. To hold otherwise would mean that the maintenance of any object upon which children might be reasonably expected to play could subject the landlord to liability for injuries that occurred in a fall therefrom. A tree, for example, if we were to adopt plaintiff’s contention, would become a dangerous condition subjecting a landlord to possible liability should he leave it in the yard of premises leased to a family with children. The same would be true of a brand new automobile moved directly from the dealer’s showroom to such a building as here involved or to a garage where the landlord knows or should know that children were in the habit of playing. The result would be to make a landlord an absolute insurer as to the safety of his tenants, especially those of tender years. This neither is nor should be the law.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

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