author: PHILLIPS, Justice.

text:
    TEXAS HIGHWAY COMMISSION et al., Appellants, v. WEST TEXAS DRILLING OF HEREFORD, INC., a Corporation, et al., Appellees.
    No. 11046.
    Court of Civil Appeals of Texas. Austin.
    March 13, 1963.
    Rehearing Denied April 3, 1963.
    Will Wilson, Atty. Gen., J. H. Broad-hurst, Asst. Atty. Gen., Austin, for appellants.
    Witherspoon, Aikin, Thomas & Langley, Hereford, for appellees.
   PHILLIPS, Justice.

Our original opinion is withdrawn and the following opinion is substituted. This suit was brought in the 126th District Court of Travis County, Texas, by the West Texas Drilling of Hereford, Inc., a corporation, and other corporations and individuals who are water well drillers against the Texas Highway Commission, The State Highway Engineer, The Public Safety Commission, The Director of the Department of Public Safety, The Sheriff of Travis County as representative of all Sheriffs and Constables of the State of Texas, the Tax Collector of Travis County as representative of all Tax Collectors in the State of Texas. The action was brought against the above named defendants “in their official capacities” as heads of the above described offices and departments. The plaintiffs ask for a declaratory judgment in that the court construe certain provisions of Article 667Sa-2, Vernon’s Ann.Civ.St., hereinafter set out as to the meaning of “machinery used solely for the purposes of drilling water wells” and also for an injunction against the above mentioned defendants, their agents and employees, prohibiting the defendants from arresting or prosecuting the plaintiffs for the operation of certain vehicles allegedly “machinery used solely for the purpose of drilling water wells” over the highways of this State. Plaintiffs further ask that the court issue a writ of mandamus ordering and commanding the defendants to authorize the County Tax Collectors to issue the limited registration plates to plaintiffs that are prescribed under Article 6675a-2, Sec. (c), for machinery used solely for the purpose of drilling water wells.

The provisions of Article 6675a-2, V.C.S., pertinent to this opinion are as follows:

“(a) Every owner of a motor vehicle, trailer or semitrailer used or to be used upon the public highways of this State shall apply each year to the State Highway Department through the County Tax Collector of the county in which he resides for the registration of each such vehicle owned or controlled by him for the ensuing or current calendar year or unexpired portion thereof; * * *
* * * * * *
“(c) ⅛ ⅜ ⅜ owners of machinery used solely for the purpose of drilling water wells or construction machinery (not designed for the transportation of persons or property on the public highways), may operate or move such vehicles temporarily upon the highways without the payment of the regular registration fees as prescribed by law, provided the owners of such farm trailers and semitrailers and machinery secure for a fee of Five Dollars ($5) for each year or portion thereof a distinguishing license plate from the State Highway Department through the County Tax Collector upon forms prescribed and furnished by the department. * * * ”

The Highway Department contends that the limited registration provision set out above in section (c) of the Article applies to the drilling rig itself or clean out rig, bailing rig, mud pumps, and that if such rigs are permanently mounted on a motor vehicle, trailer or semitrailer as each of said vehicles is defined by law, then each of such units is machinery used solely for the purpose of drilling water wells and not designed for the transportation of persons or property on the public highways. Article 6684, V.C.S. authorizes the State Highway Department to determine the classifications of vehicles and the amount of fees which shall be paid therefor.

The water well drillers contend that a proper construction of the limited registration provision applies, in addition to the drilling units above described, to trucks, trailers, semitrailers and truck tractors on which are mounted water tanks and are used by the water well drillers for hauling water over the public highways (the water to be used in drilling water wells) ; trucks, trailers, semitrailers and truck tractors used for hauling drill stem and other equipment from one well location to another over the public highways, which trucks, trailers, semitrailers and truck tractors are designed for the purpose of hauling persons or property.

By agreement between the parties, the suit was tried on the merits and the trial court held that all machinery, vehicles, motor vehicles, trailers and semitrailers owned and used by the water well drillers and other such owners and users in the State of Texas used solely for the purpose of drilling water wells are subject to registration under the motor vehicle registration laws of the State of Texas upon the payment of the annual registration fee of Five Dollars ($5) provided for in Article 6675a-2 and that such limited registration fees are applicable to all such machinery, vehicles, motor vehicles, trailers and semitrailers as are in fact used solely for the purpose of drilling water wells, including water trucks and trailers, tool house trucks and trailers, drill pipe trucks and trailers, track tractors and semitrailers used solely for such purposes and any other piece of machinery or vehicle, motor vehicle, trailer or semitrailer when the same are so used solely for the purposes of drilling water wells, regardless of the fact that such machinery, vehicles, motor vehicles, trailers and semitrailers may be adaptable to or designed for other purposes as well as for the purpose of drilling water wells. It being the judgment of the court that the use made of such machinery, vehicles, motor vehicles, trailers and semitrailers is the criterion established by the Legislature for determining the type of registration applicable to such machinery, vehicles, trailers and semitrailers.

The trial court issued an order directing the Highway Department to issue the limited registration plates provided for in Article 667Sa-2, Section (c) to the owners of the above mentioned machinery and vehicles and the court further enjoined all of the defendants (the Highway Department and other State and County officials) from arresting, delaying or prosecuting any of the water drillers whose machinery and vehicles described above had been registered under the limited provision of the registration Act.

In the case of Law v. Texas Delivery Service, Inc., 335 S.W.2d 653, Tex.Civ. App., 1960, writ ref., n. r. e., suit was brought by parties engaged in delivery business in Dallas and the adjoining incorporated cities against officials and employees of the Texas Department of Public Safety for declaratory judgment and injunction to restrain defendants from arresting and prosecuting them for alleged violations of the motor carrier act, based, not upon allegations that act was unconstitutional and void or that enforcement would constitute direct invasion of vested property rights but that act, if given proper interpretation, would provide them defense against enforcement and against criminal prosecution.

Pleas in abatement and to the jurisdiction filed by the defendants were overruled by the Trial Court who entered a declaratory judgment similar in effect to the judgment herein and in addition enjoined the officials of the Department of Public Safety from interfering with the operations of the ap-pellee. On appeal the Trial Court’s judgment was reversed and rendered and the cause of action was dismissed.

The court in the Texas Delivery Service, Inc. case pointed out that Art. 1690b, Vernon’s Ann.Penal Code, provides for the arrest, prosecution and fine of persons violating the Motor Carrier Act, and that it is under this provision of the Act that the Department intended to enforce the law against the appellees.

The court cited Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294, which was a habe-as corpus proceeding involving an injunction restraining police officials of Navarro County and the State of Texas from arresting and prosecuting haulers of cotton where the load weighed in excess of 7000 pounds. The truck haulers claimed that the law was discriminatory and that they had a right to haul loads of 11,000 pounds, the same as operators engaged in short hauls. Police officials were arrested and placed in jail for violating the injunction and appealed to the Supreme Court. The Supreme Court granted the writ and ordered the relators discharged.

The Supreme Court stated that under the well established rules of equity jurisprudence, the district judge was without authority to issue the writ of injunction to prevent the enforcement of the laws regulating the operation of motor trucks upon the highways of this State unless the petition for injunction clearly showed the existence of two facts, viz. (1) that such law is unconstitutional and void; (2) that its enforcement constitutes a direct invasion of a vested property right of the complainants. The court did not find that the allegations in plaintiffs’ petition upon which the injunction was granted showed the existence of either of said requirements. No vested property right of the complainant to use the highways was involved as they were not making the ordinary use of the Tiighways in common with the general public and that no person can acquire a vested right to use the highways in carrying on a •commercial business. See Ex parte Phares, 122 Tex. 104, 53 S.W.2d 297.

In Malone v. City of Houston, Tex.Civ. App., 278 S.W.2d 204, 1955, writ ref., n. r. -e., the court in dismissing a declaratory judgment suit to set aside an ordinance prohibiting the sale of crime comic books ■as unconstitutional stated: “The law appears to be settled in Texas that equity will not enjoin criminal proceedings or attempt to stay the hands of police officers in enforcing criminal law except where the law -attempted to be enforced is unconstitutional and void and its enforcement will result in irreparable injury to vested property Tights,” citing cases.

In the case before us, the trial court ■restrained the defendant agents of the state from enforcement of the law relating to the registration statutes and the penalties ■authorized for their breach (Article 804 et .-seq., Vernon’s Ann.Penal Code). The case falls within the prohibition set out in the cases cited. Neither are the pleadings sufficient to evoke either of the exceptions to ■the general rule. There is no allegation that the registration acts are unconstitutional. The allegation is that they have been misconstrued and misapplied. No •vested property right has been invaded as ■complainants were carrying on a commercial business on the public highways and ■such use does not comply with the test necessary to come under the exception.

The Malone case further holds that the Uniform Declaratory Judgments Act, Article 2524-1, Vernon’s Ann.Civ. Statutes, does not enlarge upon the jurisdiction of the courts.

For these reasons we must reverse this case with instructions to dismiss.

Reversed and rendered with instructions.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    SOUTHLAND LIFE INSURANCE COMPANY, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 16390.
    Court of Civil Appeals of Texas. Fort Worth.

    March 8, 1963.
    Rehearing Denied April 12, 1963.

      Bart Hopkins, Galveston, R. L. Dillard, Jr., D. D. Crawford, Dee Brown Walker, and Curtis White, Dallas, for appellant.
    McLeod, Mills, Shirley & Alexander, and V. W. McLeod, Galveston, for appel-lee.
   RENFRO, Justice.

This is an appeal from a judgment which denied Southland Life Insurance Company subrogation to the rights of W. K. Brown against The Aetna Casualty and Surety Company for payment of medical expenses by Southland for Brown.

Brown was an employee of Union Carbide. He was insured by Southland for major medical benefits under a group contract for non-occupational injuries. Aetna carried Union Carbide’s Workmen’s Compensation Insurance.

While both policies were in effect Brown filed with Carbide a statement of claim. In the statement Brown merely stated the claim was for “self”. He did not answer the question whether the illness or injury resulted from employment. The statement of the attending physician, in the middle of the same statement of claim form, answered the question, “Is disability due to injury or sickness arising out of patient’s employment?”, “Yes.” The statement of Carbide, on the bottom of said form, answered “No” to the question, “Did illness or injury result from employment?”

Brown’s claim was presented to South-land and beginning December 2, 1958, and for a period of several months thereafter, Southland paid reasonable and necessary medical and hospital bills for Brown in the amount of $2,224.12.

On October 27, 1958, Brown reported to Carbide that he had been injured on the job on October 6, 1958.

On April 6, 1959, Brown filed notice of injury and claim for compensation with the Industrial Accident Board. The claim was denied. On July 29, 1959, he filed suit in a district court of Galveston County to set aside the award and prayed for judgment based upon total and permanent incapacity by reason of an injury sustained while in the course of employment.

Aetna, at all times, denied payment of any amount to Brown upon its contention that Brown was not injured in the course of employment.

Southland made no claim before the Industrial Accident Board for reimbursement of medical expenses paid by it.

On June 7, 1960, however, Southland intervened in Brown’s compensation suit, claiming to be subrogated to the rights of Brown for medical expenses theretofore paid by Southland.

On August 10, 1961, Aetna and Brown reached a compromise settlement which was approved in an interlocutory judgment whereby Aetna paid Brown $8,000 in full settlement of Brown’s claim. The judgment recited that Brown claimed to have been injured as the result of an accident while working for Carbide, but that the occurrence was denied by Aetna.

Thereafter, Southland’s intervention against Aetna was tried. A jury was empaneled but upon agreement of the parties the jury was discharged and all matters of fact were decided by the judge.

The judgment, in short form, decreed that Southland take nothing by reason of its intervention.

Southland on appeal attacks the presumed finding that Brown was not injured in the course of his employment as being without support in the evidence, and as against the great weight and preponderance of the evidence.

Brown’s deposition was taken while he was plaintiff in the compensation suit against Aetna and almost a year before he and Aetna settled said suit. The deposition was introduced by Southland in its intervention action against Aetna. He testified : At the time of injury he was superintendent of files for Carbide on a salary of $485.00 per month; while moving a box from the hallway into his office he suddenly felt “this pain in my back and down my left leg”; this occurred about 9:00 A.M. on October 6, 1958; he was just pushing the box down the hall; he continued to work and did not report the injury until he went to the company doctor on October 27; he had a previous disc operation, performed by Dr. Stephens, in 1953.

Dr. Stephens, Brown’s personal physician, called by Southland, testified: He operated on Brown December 10, 1958, for a ruptured disc; one of the first aging processes is the fact discs start to disintegrate and it is quite common, after a person reaches his forties, for degenerating or aging process to occur in disc substances; often a person will have a ruptured disc without having any strain; the disc has degenerated and gone out into the spine or spinal cord causing pain; even a cough or sneeze can cause it to become apparent; and so can even a minor exercise such as picking up a golf tee — that would not be the cause, but would be the first time it became apparent to a person; he operated on Brown for disc in 1952 or 1953; if the first rupture came about without any particular incident it would be an indication that as far back as 1953 the discs in Brown’s back had become quite degenerated.

No findings of fact were requested or filed; therefore we presume the court found every material fact in favor of the judgment, and the evidence will be viewed in the light most favorable to the judgment. Higginbotham v. Bagley, Tex.Civ.App., 346 S.W.2d 142.

As trier of the facts the trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony.

The court was not bound by testimony of any one witness but could accept all, part, or none thereof, or he could accept part of the testimony of one witness and part of another, or draw his own deductions from all the evidence.

At the time Brown gave his deposition he was an interested witness, so interested indeed that he was a plaintiff in the suit claiming total and permanent disability.

As a general rule evidence given by an interested witness, even though uncon-tradicted, presents an issue to be determined by the trier of facts. Owen Development Co. v. Calvert, 157 Tex. 212, 302 S. W.2d 640.

We recognize the exception that1 where uncontradicted testimony of an interested witness is clear and positive, and' there are no circumstances in evidence tending to discredit or impeach such testimony, conclusive effect may be given thereto. McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722.

An issue relating to credibility of a. witness, however, is presented when testimony comes from an interested party and! is of such nature that it cannot be readily contradicted if untrue. James T. Taylor & Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371.

A study of Brown’s testimony as a whole leads to the necessary conclusion that his testimony must be governed by the general rule as stated in the Owen and' Taylor cases.

An appellate court will not disturb-the findings of the trial court if there is-some evidence of probative value to support same, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion-that is favorable to him. Googins v. E. W. Hable & Sons, Tex.Civ.App., 237 S.W.2d 705.

No doubt the evidence would have supported a finding that Brown was injured in the course of his employment, but, in our opinion, the evidence was not such as to compel such a finding. We hold that the evidence, as a whole, is of sufficient probative force to support the implied finding that Brown was not injured in the course of his employment and that such finding is not contrary to the overwhelming weight and preponderance of the evidence.

The points of error are overruled.

Since Southland’s policy did not provide for subrogation and it had no contract providing for subrogation, the finding that Brown was not injured in the ■course of his employment is, in our opinion, determinative of the appeal and the judgment should be affirmed. If Brown was not injured in the course of employment, and the burden was on Southland to prove he was, then Southland paid to Brown merely what its policy required it to pay. Southland contends, however, that the payment of $8,000 to Brown through the interlocutory judgment was an admission by Aetna of its liability to Southland.

The interlocutory judgment recited in part: “ * * * that W. K. Brown claimed to have been injured as the result of an accident while working for Union Carbide Corporation * * *, the occurrence of the accident being denied by The Aetna Casualty and Surety Company” and “nothing herein shall be construed as an admission by The Aetna Casualty and Surety Company that it owes any sum or sums to Southland Life Insurance Company ⅝ ⅜ ⅜ >>

The compromise judgment with Brown was not an adjudication either for or against Aetna or Southland in so far as the suit by Southland against Aetna was concerned. Maryland Casualty Co. v. Hendrick Memorial Hospital, 141 Tex. 23, 169 S.W.2d 969; Lowry v. Anderson-Berney Bldg. Co., 139 Tex. 29, 161 S.W.2d 459.

All points of error are overruled, and the judgment of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice.

text:
    Milton KAINER, Individually and d/b/a Kainer Truck Lines et al., Appellants, v. James W. WALKER, Appellee.
    No. 16382.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 22, 1963.
    Rehearing Denied April 12, 1963.

      Bryan & Patton, Chilton Bryan, and Julietta Jarvis, Houston, for appellants.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, Robert L. Steely and W. James Kronzer, Houston, for appellee.
   MASSEY, Chief Justice.

This appeal resulted from a judgment for personal injury damages in behalf of James W. Walker, plaintiff, against Milton Kainer and the driver of his truck, one Robert Miles. For convenience we will hereinafter speak of Kainer as the defendant, with the observer to understand that both the defendants have appealed. The complaints of the two defendants are common and a decision thereof as to one would be the same as applied to the other.

The judgment is affirmed.

Plaintiff’s injuries flowed from a vehicular collision in the City of Houston which occurred shortly before dusk when it was misting rain and when the streets were wet or damp. Point of the collision was the intersection of Capitol Avenue and Wayside Drive, the former being a street on which vehicular traffic flows both east and west, with traffic on Wayside flowing in a southerly direction only. Flow of the traffic was controlled by automatic signal-control lights. The same was true as to traffic at the intersection one block north, which was the intersection of Wayside with Harrisburg.

There is no question but that shortly prior to the time of the collision Robert Miles driving defendant’s truck, started up at the Harrisburg-Wayside intersection, upon the change of traffic lights thereat which permitted westbound traffic to make a left turn to proceed south on Wayside, and turned and drove in a southerly direction toward and into the intersection of Capitol and Wayside. There is furthermore no question but that shortly prior to the time of the collision plaintiff was stopped at the east side of the Capitol-Wayside intersection, with his automobile pointing toward the west, and that upon a change of traffic lights thereat which permitted such, plaintiff started his automobile and drove in a westerly direction on Capitol Avenue. Within the intersection the vehicles collided, the left front of defendant’s truck coming into collision with the right rear quarter of plaintiff’s passenger vehicle.

There seems to be no question but that there was a change of signal-control lights at the Capitol-Wayside intersection immediately prior to the time of the collision which indicated propriety for the flow through the intersection of traffic proceeding both east and west. There would seem to be little question but that the change of lights embraced such a change in condition that the red and “stop” light was to be observed by vehicle operators traveling in a southerly direction on Wayside, for there was nothing in the record indicating a malfunction of light controls. However, defendant’s driver contended that when he entered the intersection the signal showed green, or “go”, for southbound traffic.

Plaintiff started up from a position which was to the right of the center of Capitol, with space to his left for another vehicle between his own and the center of Capitol Avenue. Defendant’s truck was proceeding in the lane next to the center of Wayside, immediately to the right thereof. Plaintiff’s automobile was more than one-half way across the intersection when the collision occurred.

Issues upon proper lookout, failure to stop, and failure to yield right-of-way were clearly raised as applied to the acts and omissions of defendant. Raised, or in any event submitted, were contributory negligence issues upon plaintiff’s lookout, failure to sound horn, driving into the intersection on a red light, speed, and failure to apply brakes. All these contributory negligence issues were answered in favor of plaintiff and against the defendant.

One main issue was submitted on the matter of defendant’s negligence. It read: “Do you find from a preponderance of the evidence that at the time and on the occasion of the collision of December 31, 1959, that the driver of the Chevrolet truck failed to exercise that degree of care which would have been exercised by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances?” The jury found for plaintiff on this and the accompanying issue on proximate cause, and the judgment for the plaintiff was founded thereon.

In instances of judgment for the defendant on contributory negligence where the trial court has submitted a general issue on contributory negligence in tort cases, and where the defendant has alleged contributory negligence generally rather than specifically without exception thereto having been taken by the plaintiff, no reversible error has resulted of which plaintiff may complain even though he objects to the submission of the issue on the ground that it constituted a general charge or embraced a “global submission”. The cases usually concede that the objection would be good had such an exception been filed and urged. Coleman County Electric Co-op. v. Agnew, 1954 (Tex.Civ.App., Eastland), 265 S.W.2d 911, affirmed by the Supreme Court in Agnew v. Coleman County Electric Cooperative at 153 Tex. 587, 592, 272 S.W.2d 877; Coleman v. Texas & Pac. Ry. Co., 1951 (Tex.Civ.App., Dallas), 241 S.W.2d 308, error refused; and cases cited as authority for the holding.

There seem to have been no opinions prior to this time in which the analogous question posed by the instant appeal has been passed upon, although it would be remarkably similar to that stated in the preceding paragraph. In this instance it was the plaintiff who alleged generally primary actionable negligence on the part of the defendant upon which plaintiff’s right of recovery was grounded, and it was the defendant who failed to except thereto because of the generality. Defendant did object to the manner of submission because the issue constituted a global submission of general negligence in a special issue charge. The objection was overruled.

We confess that the question has given us concern. Usually when such is the state of the pleadings at time the court’s charge is prepared a plaintiff will prefer to have separate issues, by which his theory of the case is submitted, inquire about whether those acts and omissions upon which a dispute has arisen constituted negligence and proximate cause. The defendant contends that such should have been the manner of submission in the instant case, and that reversible error lies in the failure of the trial court to adopt this method. Boldly, plaintiff’s counsel agreed that the court could submit the case for the plaintiff by the manner which was adopted.

We have concluded that no reversible error appears. We believe that every reason considered and deemed logical in the cases by which it was ultimately concluded that a general issue submitting the question of a plaintiff’s contributory negligence was not improper or erroneous, and if found in his behalf would support a judgment for the defendant, would have the same application to a case where the general issue submitted the question of the defendant’s primary actionable negligence. Defendant’s points of error by which its complaint is presented are overruled.

Complaining of the answer of the jury to the issue and its companion issue on proximate cause defendant contends that there was no evidence to support the answers returned, or even the submission of the questions, and also that the answers of the jury were against the great weight and preponderance of the evidence and the product of something other than reason. We have stated the general nature of the manner by which the collision occurred, and the acts and omissions on the part of defendant’s driver. Clearly they could have amounted to negligence on the part of the driver, and by and through the driver to negligence on the part of the defendant. Evidence adduced upon the trial raised the issue or issues and the answers of the jury found adequate support in the evidence. Defendant’s points of error pertaining thereto are overruled.

Two specially requested issues of the defendant were refused by the trial court. These issues were:

Special Issue No. I. “Do you find from a preponderance of the evidence that James Walker failed to ascertain that the intersection of Wayside and Capitol Avenue-was clear of motor traffic before leaving his stopped position on Capitol Avenue on. the east side of Wayside Drive immediately before the collision in question?”

Special Issue No. L. “Do you find from a preponderance of the evidence that James Walker failed to ascertain that it was safe for him to drive into and through the intersection of Capitol Avenue and Wayside Drive before proceeding into such intersection immediately before the collision in question ?”

Companion issues to the foregoing, upon the matter of inquiry as to negligence and proximate cause, were likewise refused.

We are of the opinion, and so hold, that the trial court did not err in refusing these specially requested issues. The inquiries therein posed other and various phases or different shades of the issue which was submitted upon the question of plaintiff’s lookout. To have submitted the requested issues would have been to violate the mandate against such stated in Texas Rules Civil Procedure 279, “Submission of Issues”.

We likewise overrule defendant’s points of error by which it is asserted that plaintiff was guilty of contributory negligence as a matter of law, or, in the alternative that the jury’s failure and refusal to find contributory negligence on the defendant’s issues were against the great weight and preponderance of the evidence. We have reviewed the evidence and concluded that the matter of plaintiff’s contributory negligence was an issue to be resolved by the jury, and that the answers, by which such was resolved, were not against the great weight and preponderance of the evidence in the case.

Shortly after the time the collision occurred police officer Ford was dispatched to the scene to make an investigation in behalf of the City of Houston. Both drivers were present at the time of his arrival. After conducting certain investigation at the scene and interrogating both plaintiff and the defendant’s driver, the officer asked these men to ride with him in retracing the route of defendant’s truck for two or three blocks prior to the time of the collision. They did so. The officer had driven the police car, and made a left turn off Harrisburg, a block north of the scene (as defendant’s driver had done), and proceeded to drive in a southerly direction on Wayside toward the intersection where the collision occurred. Defendant objected to the officer’s testimony regarding findings and conclusions as the result of the test. Such was to the effect that if the operator of a vehicle started up, upon the change of the signal light one block north (as defendant’s driver had done), made a left turn off Harrisburg and drove south toward the intersection of the collision, he would have to attain a speed in excess of 30 miles per hour in order to reach Capitol Avenue before the signal light thereat changed to the red and “stop” signal. In connection with the test there was an assumption that the sequence of the signal lights, one block apart, was so coordinated that the light was on the green and “go” signal at the intersection one block north (for a driver traveling in a westerly direction thereat) at the same time the signal light at the intersection of the collision was on the green and “go” signal for vehicular traffic traveling in a southerly direction on Wayside Drive. That this was so was not established by direct evidence.

When plaintiff’s counsel started to introduce officer Ford’s testimony about the test defendant’s objection was interposed. The objection did not embrace the complaint that proper predicate for its reception had not been laid or that there was an assumption that the time sequence of the signal lights at the one intersection was correlated to the lights at the other. We believe there was no error in the admission of the officer’s evidence. Furthermore, we are of the opinion that in a case such as this, the trial judge would have been at liberty in the exercise of his discretion to have concluded that the conditions were sufficiently similar to those existent at the time the defendant’s driver traversed the route before the collision to warrant the reception of the evidence, and that any dissimilarity in conditions would go to the weight of the evidence rather than to its admissibility. 23 Tex.Tur.2d 291, “Evidence”, sec. 192, “Admissibility of experiments conducted after act has occurred”, and the article on this character of evidence in 17 Tex.Jur., p. 401, sec. 142, which it supplanted. Furthermore, in a review of the whole record we have arrived at the conclusion that the reception of the evidence, even assuming it to have been improper, did not constitute an error of law occurring during the course of the trial which amounted to such a denial of the rights of complainant as was reasonably calculated to and probably did cause the rendition of an improper judgment. T.R.C.P. 434, “If Judgment Reversed”. For these reasons the point of error is overruled.

Over twenty years prior to the time of the trial the plaintiff had tuberculosis. It became an “arrested” case. The federal government began paying compensation on account thereof in the original amount of $38.95 per month over twenty years prior to time of the trial, but had been periodically increased until it became $61.00 per month. The government payments of this “compensation” were continuous and are still being received. However, the government had not had the plaintiff examined for over twenty years. Neither had the plaintiff certified to the government any fact concerning the state of his health. The payments so received' by plaintiff amounted to a federal pension for debility.

Anticipating that defendant’s councel would be expected to interrogate plaintiff before the jury concerning the above matter plaintiff’s counsel filed a motion in limine in which it was requested that counsel for the defense be instructed not to interrogate or in anywise apprise the jury concerning “The amount of government pension that James W. Walker receives through the Veterans Administration.” The plaintiff further stated: “In this connection, your Plaintiff has no objection to the showing that he has a latent case of tuberculosis, which was diagnosed and recognized by the Veterans Administration, but it is immaterial and irrelevant to any issue in this case as to whether or not he receives any disability payments by reason thereof. Particularly, the amount of such disability payments are irrelevant and immaterial to any issue in the case, and constitute payments from a collateral source so as to not be evidentiary herein.” The motion was granted, to which action the defendant took exception.

On appeal a point of error asserts error in the granting of the motion in limine. It is contended thereunder that defendant was denied the opportunity to offer evidence that plaintiff had been receiving disability compensation when it related to his antecedent physical condition and disability, a material inquiry in the case. Another point of error is of similar character, though with respect to the defendant’s offer of evidence and its denial. In the case of Hawkins v. Missouri, K. & T. Ry. Co. of Texas, 1904, 36 Tex.Civ.App. 633, 83 S.W. 52, the trial court in a personal injury case had permitted the defendant, who obtained judgment, to bring out on cross-examination on pleadings of general denial the fact that plaintiff was drawing a pension from the United States Government of $12.00 per month. The court held that such action of the trial court did not constitute error. The court stated: “It appears that appellant’s physical condition prior to the injuries became a material inquiry in the case, and, the federal pension having been granted upon the ground of debility in this respect, the testimony was pertinent.”

A like holding is to be found in Dofner v. Branard, 1951 (Tex.Civ.App., San Antonio), 236 S.W.2d 544, writ ref. n. r. e., a case in which the trial court permitted interrogation on the matter of claim for government pension for and on account of antecedent disability and the percentage thereof. Amount of the pension did not seem to have been a matter of inquiry.

In “Shepardizing” the Hawkins case we fail to find where it has ever been cited as an authority on the point in question. The same is true of the Dofner case. Nevertheless we have no quarrel with the holdings in these cases. In the Hawkins case the language was that of Judge Ocie Speer, a very distinguished former member of this court, later on the Commission of Appeals. His holding was that it did not constitute error on the part of the trial court to “allow” the inquiry. On the asserted point of error in this case the question is whether it constituted error to “deny” the inquiry. The matter of inquiry had relation to antecedent physical condition and disability. It has been held that “The latitude which such testimony may take upon an issue of this kind rests in the sound discretion of the trial court, * * ” Western Produce Co. v. Folliard, 1937 (C.C.A., 5th Circuit), 93 F.2d 588. We agree with this statement. Applying the principle to the instant case we hold that reversible error is not made to appear. Furthermore, it is our interpretation of the motion in limine that the granting thereof did not inhibit inquiry on the cross-examination of the plaintiff about whether or not he was receiving a federal pension being paid to him on account of disability flowing from a tubercular condition, but only inhibited questions as to the “amount of government pension”. It could only be the fact and the “extent” of the antecedent disability that would be matter in question in the case, in that such might operate to reduce the amount of damages, and questions relating to the amount received, or being received because thereof, would not be a matter of proper inquiry. St. Paul Fire & Marine Insurance Co. v. Murphree, 1962, Tex., 357 S.W.2d 744.

In the offer of evidence, tendered on bill of exceptions, it was the fact of the payment of pension, or “compensation”, that was tendered and not the amount. The offer was refused. As previously indicated, in the light of the whole record we fail to see where the refusal of the offer amounted to reversible error. The circumstances before us do not fit the ordinary case where an injured has received “compensation” from sources other than the wrongdoer in an injury action, as considered by the cases cited by Mr. Tom H. Davis in his article, “The Collateral Source Rule”, 26 Tex. Bar Journal, No. 1, p. 31, January 22, 1963.

Other points of error relate to contentions that the amount of damages found by the jury was grossly excessive and against the great weight and preponderance of the evidence. The total of the damages, exclusive of medical expenses and automobile damage, as found by the jury was $27,300.-00. It was developed upon the questioning of two of the jurors on the hearing of the motion for new trial that the jury allowed $13,000.00 for plaintiff’s loss of earnings to date of the trial and $10,800.00 for loss of earning capacity in the future. Only two jurors testified. Assuming we are bound thereby, it might be reasonably concluded that mental anguish and perhaps physical pain, past and future, was deemed by the jury to have been worth $3,500.00. Combining these figures would result in a total of $27,300.00. We do not believe that we are bound thereby, nor was the trial court. That two members of the jury at one stage of the deliberations agreed and arrived at the ultimate total amount of $27,300.00 by reason thereof would not mean that others of the jury did likewise. Or, even had they agreed on one or the other of the figures as the proper amount at one stage of their deliberations did not mean that their ultimate agreement to the $27,300.-00 answer returned would be based upon an amount previously agreed upon to an item comprising a part thereof. The material figure was the final one of $27,300.-00 to which all agreed, and individuals comprising the jury were free to change their ideas as to the values of various items going to make up the whole thereof for which the ultimate total was awarded. The defendant’s contentions, therefore, are founded upon a premise which is fallacious. Viewing the evidence as a whole we are unable to say that the amount of $27,300.00 was grossly excessive or that the jury’s finding was contrary to the great weight and preponderance of the evidence.

Defendant has presented thirty-three points of error. We believe that each of them is covered in our discussion. In any event we have severally reviewed them and severally overruled them.

The judgment is affirmed.


author: TIREY, Justice.

text:
    TEMCO FEED MILLS, INC., Appellant, v. John BECKNER, Appellee.
    No. 4087.
    Court of Civil Appeals of Texas. Waco.
    March 7, 1963.
    Rehearing Denied March 28, 1963.

      J. W. Thomas, Jr., Temple, for appellant. John W. Fulbright, Waco, for appellee.
   TIREY, Justice.

This is an appeal from a summary judgment in favor of defendant. Plaintiff filed its original petition on August 8, 1960. Defendant filed its sworn answer in October, 1960, and thereafter, in October 1962, filed its verified motion for summary judgment. Plaintiff made no reply to this motion. In the decree we find this recital:

“ * * * and it appearing to the Court that such motion has been made in proper form and time, that proper service thereof has been made and that the parties are before the Court for a hearing thereon; and the Court having considered the pleadings, and there being no depositions on file or affidavits submitted, and finding that the pleadings show an absence of a genuine issue of any material facts and that this Summary Judgment should be rendered in behalf of the Defendant, * * ‡«

and the judgment decreed that plaintiff take nothing and that defendant Beckner go hence with his costs.

The judgment is assailed on one point. It is:

“The Court erred in holding unenforceable a new promise to pay indebtedness barred by limitations supported by consideration of promise to forbear bringing action for nonpayment of barred indebtedness in absence of written acknowledgment of justness thereof signed by debtor.”

We overrule point one for reasons which we shall hereafter briefly state.

A short statement is necessary. Plaintiff went to trial on its original petition and it consists of some 7 pages. The pleading is somewhat involved and it is a little difficult to state its contents with clarity, but we think the following allegation is sufficient in view of point one, relied on by plaintiff. We quote the allegation:

“Defendant, for and in consideration of the promises and undertaking of the plaintiff hereinafter alleged, promised to pay plaintiff on the fourth day of March, A. D. 1960, the amount of six hundred sixty-four and ninety-seven one hundredths ($664.97) dollars, and Plaintiff, for and in consideration of the promise and undertaking of defendant hereinabove alleged, promised forever to forbear from instituting the following causes of action in a court of competent jurisdiction: * * * ”

As we understand plaintiff’s petition, it sets out an alleged cause of action that states that the action is already barred by limitation, and that it would have filed such action against defendant if he had not made the promise referred to in the above allegation.

The defendant in his reply entered a general denial and challenged each and every item referred to in the plaintiff’s petition, and in addition thereto, specially plead that the cause of action asserted by the plaintiff accrued more than 2 years before the commencement of the suit, and that it is barred by the statute of limitation. Defendant verified his answer and plaintiff made no reply thereto, nor did the plaintiff reply to the defendant’s motion for summary judgment. First of all, Art. 5526, V.A.T.S. provides in part:

“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * *
“(4) Actions for debt where the indebtedness is not evidenced by a contract in writing.”

Plaintiff’s petition seeks to recover on a barred debt (on open account) not evidenced by contract in writing. Art. 5539 of our statutes provides:

“When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.”

This Court, in Tolleson v. McAlister, Tex. Civ.App., 33 S.W.2d 573, (1930) writ refused, made this statement:

“Our courts have uniformly held that this statute is mandatory and that where a suit is brought on a debt that is barred, the foundation thereof must be the new promise rather than the old, and that unless the new promise is in writing, same is not binding upon the defendant.”

Citing Coles v. Kelsey, 2 Tex. 541, 542, 47 Am.Dec. 661; Cain v. Bonner, 108 Tex. 399, 194 S.W. 1098, 3 A.L.R. 874; Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159, 34 L.R.A.,N.S., 345, Ann.Cas.1914B, 217; York v. Hughes, Tex.Com.App., 286 S.W. 165. The foregoing cases clearly state the holding of our Supreme Court on Art. 5539, supra, and our Supreme Court has not seen fit to change or modify the rule there announced, and it is applicable and controlling here. We think it is clear that the plaintiff’s petition and point one in his brief bring his alleged cause within the above rule, and that therefore the trial court properly granted the motion for summary judgment in favor of defendant. See Brownson v. New, Tex.Civ.App., 259 S.W. 2d 277, writ dis., opinion by Justice Norvell, Points (1-6) pages 279, 280. Citing Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, n. r. e. See also Miller v. Thomas, Tex.Civ.App., 226 S.W.2d 149, writ ref., points (3, 4) page 152.

Accordingly, the judgment of the trial court is affirmed.


text:
    Troy BARHAM et ux., Appellants, v. Rodney REAMES et al., Appellees.
    No. 16387.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1963.
    Rehearing Denied April 12, 1963.

      Wiley Thomas, Angleton, for appellants.
    Goff & Koonce and Robert C. Koonce, Angleton, for appellees.
   RENFRO, Justice.

Suit was instituted by plaintiffs Reames, Brothers and Davidson for permanent injunction to prohibit defendants Barham and wife from conducting a beauty parlor business in a building on their lot in violation of certain restrictions, covenants and conditions common to the Addition. Defendants admitted the violation but defended upon the grounds of laches, waiver and abandonment of restrictions.

Plaintiffs’ motion for instructed verdict was overruled and the case was submitted to the jury on the question of waiver by the plaintiffs. The jury was unable to agree, whereupon the court rendered judgment for plaintiffs. The judgment recited there was no evidence to prevent enforcement of the restrictions by the plaintiffs who relied on said restrictions.

On appeal the defendants contend the court erred in rendering judgment for plaintiffs because there was evidence to support their pleaded defenses.

Chevy Chase Subdivision Section III is comprised of 5 blocks in the City of Angle-ton, Brazoria County.

Block 1 is the southernmost block and is abutted on the north by Southhampton Road; Block 2 is north of Block 1, and is abutted on the south by Southhampton Road and on the north by Wimberly Road; Blocks 3 and 4 are further north; and Block 5 is a long block running north and south across North Tinsley Street and west of the other Blocks.

Defendants own Lot 20 in Block 1, and it faces on Southhampton Road. North Tinsley Street runs along the west side of defendants’ lot.

Plaintiff Reames owns Lot 21, Block 1, and adjoins defendants’ lot on the east. Plaintiff Davidson owns Lot 1, Block 1. Said lot is immediately south of defendants’ lot. Brothers owns lots and parts of lots in Block 5 across North Tinsley Street from defendants’ lot.

Another person was operating and had operated a beauty parlor known as Jewell’s on the north side of Wimberly Road for more than four years. She had converted her garage into a beauty parlor. Some of plaintiffs, or their wives, knew of such operation. Said parlor was in Block 3 and was a block north and approximately one-half block east of defendants’ lot, and about the same distance from plaintiff Reames’ lot. It was still further from plaintiff Brothers’ lot.

Witness Carr, employee of Dow Chemical Co., did some part-time air-conditioning and refrigeration service from his family garage in the same block in which defendants and plaintiff Reames resided. “They come and get him * * * or he goes to their house.” Another resident on Southhamp-ton, across the street from defendants, did some TV repairs “from his home”; he had no machinery and equipment. Plaintiff Brothers used one-half of his two car garage for woodworking hobby.

In Hemphill v. Cayce, Tex.Civ.App., 197 S.W.2d 137, this court had before it a case in which appellant showed 17 violations to carry out his defense of waiver. It was held: “While the appellee may have become negligent in not objecting to some of the minor infractions outlined by appellant, yet we do not think that such a departure from the usual restriction is destructive of the integrity of the scheme of development as a whole throughout the entire restricted area of 600 lots. It is obvious from this record that the original owners of the addition formulated and placed into execution a general plan to restrict it to the building of private residence only; that all restrictions placed in conveyances were restrictive covenants running with the land. Therefore, all parties interested in said area may enforce such covenant.”

In the instant case the violations, if indeed there were any violations, other than Jewell’s, must be regarded as trivial. Failure to object to trivial violations does not preclude enforcement.

In order to prove the waiver or abandonment of a general scheme to develop an area, it must be shown that the violations are so great as to the average man’s mind would reasonably lead to the conclusion that it had in effect been abandoned.

There is no evidence that Jewell’s, approximately a block and a half from plaintiffs’ property, and on another street, affected the plaintiffs’ enjoyment of their respective properties, nor materially affected said premises.

In our opinion, under the holding in Cayce, supra, the plaintiffs, under the record in this case, did not waive the residence restrictions by failure to object to the continued operation of Jewell’s.

Restrictions may be waived but in order to establish a waiver of a general scheme or plan for the development of a particular area, it must be shown that such plan has been violated to such an extent as to reasonably lead to the conclusion that it in fact had been abandoned, and that unsubstantial violation thereof or the fact that a complainant has not objected to previous violation of such restrictions, particularly where they did not immediately affect the enjoyment of his own premises, will not prevent him from maintaining an action for injunctive relief to prevent substantial violations thereof, or a violation which would materially affect his own premises. Ragan v. Mosher, Tex.Civ.App., 225 S.W.2d 438; Klein v. Palmer, Tex.Civ. App., 151 S.W.2d 652; Hemphill v. Cayce, supra; Green v. Gerner, Tex.Civ.App., 283 S.W. 615, affirmed Tex.Com.App., 289 S.W. 999; Plaster v. Stutzman, Tex.Civ.App., 8 S.W.2d 750; Walker v. Dorris, Tex.Civ. App., 206 S.W.2d 620; and Arrington v. Cleveland, Tex.Civ.App., 242 S.W.2d 400.

The Supreme Court in Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, held: “While a lot owner in a restricted district may under certain circumstances, by acquiescence in violations of restrictions as to some lots, waive his right to insist upon compliance as to others, the settled rule is that he is not precluded from enforcing a restriction against an owner whose, violation of it materially affects him, by failing to complain of another’s violation which does not materially affect him in the enjoyment of his property or which is merely trivial.”

Under the record before us, and in view of the above authorities, we agree with the trial court that there was no evidence of sufficient probative force to prevent enforcement of the restrictions.

Since an instructed verdict for plaintiffs would have been proper, the court did not err in rendering judgment for plaintiffs.

Judgment affirmed.


text:
    Alice Callihan PEDERSON, Appellant, v. Russell J. SCOTT, Jr., Individually and d/b/a Industrial Diamond Products Company, Appellee.
    No. 16395.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1963.
    Rehearing Denied April 12, 1963.

      John O. Kain and Richard H. Powell, Houston, for appellant.
    Talbert, Giessel, Cutherell & Barnett, and Henry P. Giessel, Houston, for appellee.
   MASSEY, Chief Justice.

Appellant (plaintiff below) contends certain jury findings in a rear-end automobile collision case are contrary to the overwhelming preponderance of the evidence. These findings are to the effect that defendant did not fail to keep a proper lookout, did not drive too closely behind the vehicle in which appellant was riding, did not fail to make proper and timely application of brakes, and was not negligent with respect to the rate of speed he was driving.

Additional were findings that though defendant failed to turn and drive to the left, such was not negligence, and that the collision which occurred was the result of an unavoidable accident. By other findings the jury concluded that defendant was acting in an emergency in which he used due care. It is of interest to note that the collision involved two automobiles in a funeral procession.

Complaint was also made that there was no evidence which supported the jury’s answers so returned. The burden was upon the appellant as to each issue of which complaint is made. She was not entitled to affirmative answers as a matter of law. This complaint is overruled. Further, on the matter of defendant’s speed and failure to drive to the left, as negligence and proximate cause, we believe there is no question but that the jury’s negative findings had adequate support in the evidence and must not be disturbed.

As applied to the situation in this case we are somewhat in the predicament the Waco Court of Civil Appeals found itself in the case of Hunt v. Parrish, 1959, 324 S.W.2d 887. The court reached the conclusion that the driver of the rear car, defendant in the case, was in all reasonable probability negligent either in that he failed to keep a proper lookout or was following too closely behind the vehicle preceding, and that such negligence was in all reasonable probability a proximate cause of the collision and plaintiff’s resulting injuries. Here it would seem reasonable to conclude that the defendant either failed to keep a proper lookout, or contrariwise that he was following too closely or otherwise negligent in respect to the application of his brakes, and that the negative jury findings in one case or the other was against the great weight and preponderance of the evidence, although we are unable to determine which answer (s) should be condemned.

The Supreme Court reversed the Court of Civil Appeals in the Hunt v. Parrish Case. See Parrish v. Hunt, 1960, 160 Tex. 378, 331 S.W.2d 304. Its holding was that if either the jury finding that the defendant did not fail to keep a proper lookout was against the great weight and preponderance of the evidence or its finding that the defendant was following too closely was against the great weight and preponderance of the evidence, the Court of Civil Appeals was charged with the duty to declare which. On remand the Waco Court stated that since it was impossible to logically determine which of the two jury findings was contrary to the overwhelming preponderance of the evidence the judgment of the trial court would be affirmed. In other words the holding was that where the Court of Civil Appeals would not be able to decide which finding should be overturned, upon the conclusion that one or the other should fall, neither could be overturned. See Hunt v. Parrish, 1960 (Tex.Civ.App., Waco), 334 S.W.2d 505.

Applying the foregoing to the instant case it would seem that we are obliged to leave undisturbed the negative findings the jury made against appellant’s contentions and affirm the judgment of the court below. However, in the instant case the jury found that at the time of the collision the defendant was acting under an emergency, and that being faced therewith acted as a person of ordinary prudence in the exercise of ordinary care would have acted under the same or similar emergency. All the answers which were returned by the jury, as hereinabove considered, acquitted the defendant of negligence which amounted to a proximate cause of the collision. The answers returned by the jury to the issues on emergency are in harmony therewith. It would seem therefore that even if the jury had found the defendant negligent in one or more of the respects charged the subsequent findings on the emergency issues rebutted the antecedent findings and the judgment proper under the circumstances identical to that the trial court entered. Goolsbee v. Texas & N. O. R. Co., 1951, 150 Tex. 528, 243 S.W.2d 386.

It is our opinion, therefore, that the judgment of the trial court is to be sustained for reasons analogous to those observed by the Supreme Court in the Goolsbee case. It might be that the appellant could be heard to contend that the issue of emergency was not in the case. There was no motion made in the trial court to disregard the emergency issues and the jury findings returned thereto under Texas Rules of Civil Procedure, rule 301, “Judgments”. There is no point of error presented on the appeal which asserts that the issues were not raised. By her twenty-fifth point of error the appellant contends that the jury findings thereto returned are so contrary to the overwhelming weight of all the evidence as to be clearly wrong and unjust. By her twenty-sixth point of error appellant asserts that the findings indicate that the jury’s answers were based upon bias and prejudice. However, in both these points of error the complaint was joined and merged into a “blanket” complaint embracing the negative findings hereinabove discussed along with the findings to the emergency issues, with reference made to appellant’s whole complaint and the individual matters embraced therein by the words “separately and cumulatively”. In other words, by a single point of error appellant complains of every finding made against her by the jury and of the findings made for the defendant on the emergency issues.

No question obviously related to the matter of emergency and the jury findings thereon is discussed under appellant’s points. Her entire argument relates to the negative findings we discussed before we reached the matter of whether defendant was confronted by an emergency. In view thereof we believe that we are bound to treat “sudden emergency” as raised by the evidence and made issues for the jury, and the jury findings thereon as not having been contrary to the great weight and preponderance of the evidence. Right of complaint would be properly treated as waived for failure to brief. T.R.C.P. 418, “Briefs: Contents”. Furthermore, even if briefed the twenty-fifth and twenty-sixth points of error would appear to be multifarious under the same rule.

Appellant has founded points of error upon the jury’s failure or refusal to find an amount above the “zero” answer it did return on the matter of her damages from personal injuries. While we believe and hold that such findings were in fact against the greater weight and preponderance of the evidence in the whole record, our decision in accord with appellant’s contention is pointless and ineffective in view of our holdings against her in respect to liability. Decision thereon would be material only if appellant be found entitled to another trial on the liability phase of the appeal.

Judgment is affirmed.


author: DAVIS, Justice.

text:
    Oliver LONDON, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 7448.
    Court of Civil Appeals of Tesas. Texarkana.
    March 12, 1963.
    Rehearing Denied April 9, 1963.
    Gallagher, Francis, Bean, Wilson & Berry, Dallas, Florence, Garrison & Holt, Gilmer, Baldwin & Baldwin, Marshall, for appellant.
    Kenley, Ritter & Boyland, Longview, for appellee.
   DAVIS, Justice.

A workman’s compensation case. Appellant received an injury while working for Eastman Kodak Company, Texas Eastman Company Division, on August 29, 1959, in Harrison County, Texas. He alleged in his petition that he sustained permanent injuries. By supplemental pleading he alleged he received various specific injuries. In a trial to a jury, the jury found that he did not receive any injury to his body. The jury did find that he received the following three specific injuries: (1) Sixty weeks total loss of the use of the left leg; (2) 25% of permanent partial loss of the use of the left leg; (3) Fifty-nine weeks of total loss of the use of the right hand; (4) 40% permanent partial loss of the use of the right hand; (5) Fifty-nine weeks total loss of the use of the left hand; (6) 50% permanent partial loss of the use of the left hand.

The trial court entered a judgment allowing the appellant 59 weeks of total disability, and allowed him $8.75 per week for 140 weeks for the permanent partial loss of the use of the left leg; $14.00 per week for 91 weeks for permanent partial loss of the use of the right hand, and $17.50 for 91 weeks for permanent partial loss of the use of the left hand.

Appellant has perfected his appeal and brings forward three points of error. By the points, he says that the trial court erred in failing to give the proper amount of Workmen’s Compensation benefits for the specific injuries, and entering a judgment for a lesser amount than was awarded by the jury. According to the jury’s answers, there were three specific injuries for which certain amounts are allowed under Art. 8306, Sec. 12, R.C.S. Not much has been written on the question of specific injuries in Texas. In the case of Travelers Insurance Company v. Theroit, Tex.Civ.App., 353 S.W.2d 511, error refused, it was held that a workman receiving two hernias as a result of a single accident was entitled to 52 weeks compensation; not just 26 weeks. Specific Injuries, see McCartney v. Aetna Casualty & Surety Company, Tex.Sup.Ct., 362 S.W.2d 838. In Griffith v. Goforth, 184 Tenn. 56, 195 S.W.2d 33, the court held that where a party received multiple specific injuries that he was entitled to recover under the specific injury statutes, even though he would recover more than was allowed by law for total disability. See, 58 Am, Juris. 787, Sec. 295; 99 C.J.S. Workmen’s Compensation § 308, p. 1111; 99 C.J.S. Workmen’s Compensation § 309, p. 1117; Cl o 3 ft* ‘ o ; vn in

Art. 8306, Sec. 12 Specific Compensation”, reads, in part, as follows:

“For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent (60%) of the average weekly wages of such employee, but not less than Nine Dollars ($9) per week nor exceeding Thirty-five Dollars ($35) per week, for the respective periods stated herein, to wit:
* * * * * *
“For the loss of a hand, sixty per cent (60%) of the average weekly wage during one hundred and fifty (150) weeks.
* * * ⅜ * ⅜
“For the loss of a leg, at or above the knee, sixty per cent (60%) of the average weekly wages during two hundred (200) weeks.
⅜ * ⅜ * * ifc
“In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.
******
“ * * * huf secfion shall nof affect liability for the concurrent loss or the loss of the use thereof of more than one (1) member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.
“In all cases of permanent partial incapacity it shall be considered that the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member; but the compensation in and by said schedule provided shall be in lieu of all other compensation in such cases. * * * ” (Emphasis added).

It is elementary that the Courts must liberally construe the Workmen’s Compensation statutes in favor of the employee. Under such a liberal construction, the injuries were specific injuries. The appellant is entitled to receive $35.00 per week for sixty weeks for the total loss of the use of the left leg, and $8.75 per week for 140 weeks for the permanent partial loss of the use of the left leg. He is entitled to receive $35.00 per week for 59 weeks for the total loss of the use of the left hand, and $17.50 per week for 91 weeks for the permanent partial loss of the use of the left hand. He is entitled to receive $35.00 per week for 59 weeks for the total loss of the use of the right hand, and $14.00 per week for 91 weeks for the permanent partial loss of the use of the right hand.

The judgment of the trial court is reformed so as to allow the foregoing recoveries, and as reformed is affirmed.


text:
    Tex JONES, Appellant, v. CITIZENS CASUALTY COMPANY et al. Appellees.
    No. 16406.
    Court of Civil Appeals of Texas. Port Worth.
    March 22, 1963.

      Garrett & Garrett, and Rufus S. Garrett, Jr., Fort Worth, for appellant.
    Cantey, Hanger, Johnson, Scarborough & Gooch, Ira Butler, Jr., Howard Barker, and John McBryde, Fort Worth, for ap-pellees.
   MASSEY, Chief Justice.

This is an appeal from an order sustaining separate pleas of privilege filed by defendants, Floyd West & Company, a corporation, and Citizens Casualty Company, a foreign fire, marine or inland insurance company. By the original suit J. L. Blackwell, local insurance agent, was named as an additional defendant. He was a resident of Tarrant County where the suit was filed, but he is not a party to the appeal. The plaintiff was Tex Jones.

In 1959, Jones and two other men were the owners of a 1947 Beechcraft Bonanza airplane. Said owners desired insurance as applied to the plane and its operations, which we will term physical insurance and liability coverage. Several of the owners conversed with Blackwell, and on May 9, 1959,, one ordered from him said forms of insurance. Blackwell gave oral assurance that desired coverage would be in force and effect from that time. Two or three days later the plane crashed. As result thereof a third party was injured and the plane severely damaged. Shortly thereafter further damage was done to the plane as the result of a storm. Between then and the time of the trial of the pleas of privilege, Jones succeeded to all the rights, if any, of the former co-owners of-the policy, if any, or their rights to any cause or causes of action for breach of contract to afford insurance.

Blackwell was a local insurance agent of Floyd West & Company, general agent for a variety of insurance companies. There was a contract in existence between the two relating to the authority of the local agent. One provision thereof reads as follows: “(4) The agent shall make no oral contract or contracts of insurance on behalf of Floyd West & Co., or any of the companies or carriers in which insurance is placed, other than such as may be evidenced by a policy of insurance or other insurance contract upon a form provided therefor by Floyd West & Co.” Blackwell did not have in his office at any material time any form on which a policy contract could be completed which would afford the type of insurance for which he purported to contract on the occasion of the telephone conversation aforementioned. If we err in this statement, we are confident that the record does not reflect that Blackwell did have such a form.

The evidence disclosed that Blackwell had on numerous occasions “orally bound” Floyd West & Company to insurance coverage, and which “binder” was honored by said company through treating the transactions as though insurance was effected from the time Blackwell purported to contract. In other words, there was recognition by Floyd West & Company that its local agent had the right to so effect insurance. However, the same had not been true as applied to the form of insurance here involved. Blackwell had never promised a “binder” on airplanes which had been so honored. His testimony was that before he could effectively contract for an aviation risk he had to get the approval of the “aviation underwriter”. The record fairly infers that such “aviation underwriter” is someone in the office of Floyd West & Company or someone from whom said company obtained approval before insurance affecting aircraft or aviation was contracted.

There had been such character of insurance on the same airplane, under the same ownership, during a part of the six months’ period immediately prior to May 9, 1959. The coverage was through Blackwell and his general agent, Floyd West & Company, into the Citizens Casualty Company. This policy had been cancelled by the owners during a period of several months when the airplane was removed to the State of Kansas where an attempt had been made to sell it. No sale was effected. The plane was returned to the Fort Worth-Dallas area, whereupon the same coverage was desired to be resecured or reinstated. On the previous occasion approval for the execution of an insurance contract had been received from the “aviation underwriter” and a policy of insurance written for which Blackwell had received credit. We presume that a new policy or reinstatement of the old would have been approved had there been time for Blackwell to furnish the information for investigation to Floyd West & Company and attention thereto by the “aviation underwriter”. However, the crash and resultant damage and injury took place before Blackwell had given them said information or any form of notice in the premises. They discovered that Blackwell had purported to effect a “binder” at the same time they learned that a loss had been sustained. Floyd West & Company and the Citizens Casualty Company declined to hon- or and effect any contract of insurance and denied any liability in the premises.

Either the circumstances are such as (1) to create a contract of insurance between Jones and the Citizens Casualty Company,—or (2) to create a cause of action against Floyd West & Company for damages for breach of contract to furnish and afford insurance, along with Jones’ similar cause of action against Blackwell,—or (3) Jones’ cause of action is against Blackwell and no one else. In view of the proof in the record we believe that the third of these alternatives is the sole and only cause of action proved for purposes of the plea of privilege hearing.

As against the Citizens Casualty Company, Jones relies on Exception 28, “Insurance”, to V.A.T.S., Art. 1995, “Venue, general rule”. We believe and hold that venue may not be retained under the exception because Jones failed to prove that he was a policyholder of Citizens Casualty Company. Economy County Mut. Fire Ins. Co. v. Curton, 1950 (Tex.Civ.App., Waco), 226 S.W.2d 507, 508, at which latter page the court reasoned to this conclusion from the case of National Life Co. v. Rice, 1943, 140 Tex. 315, 167 S.W.2d 1021; Clark, Venue in Civil Actions, Ch. 28, p. 166, “Insurance”, § 4, “Proof Necessary to Sustain Venue”.

As against Floyd West & Company, Jones relies on Exception 23, “Corporations and Associations”, to V.A.T.S. Art. 1995. We believe and hold that venue may not be retained under the exception because Jones failed to prove that Blackwell’s purported “binder” of insurance (by reason of which Jones considered coverage to have been in force and effect) was within the scope of his authority for Floyd West & Company as a principal in agency on the transaction. Certainly the evidence established the liability of Blackwell to Jones in that a duty on his part to afford insurance coverage existed, coupled with a violation or breach on his part. If any duty was proven to have devolved upon Floyd West & Company there was unquestionably a breach. The question, however, is whether Jones proved that a duty was so devolved. On this Jones would be required to sustain the burden of proof, not to establish such by a preponderance of the evidence, but to show that an issue of fact was arisen in the evidence and existed for determination. This Jones was unable to prove. As to rights and liabilities as between a principal and a third person, see 2 Tex.Jur.2d, p. 618 et seq., “Agency”, § 173, “(Rights and Liabilities Based on Contract) In general; Liability of principal for acts of agent—Where acts unauthorized”, § 176, “—Reliance by other party to contract on agent’s representations of authority”.

Jones having waived points of error other than those on which we have written, they are not discussed.

Judgment is affirmed.


author: FANNING, Justice.

text:
    Emma Carter McKINNEY by and through her next friend Maudie Smith, joined pro forma by her husband, Tom Smith, Appellant, v. Mae McKinney GAISER and husband, Richard Gaiser, Appellees.
    No. 7490.
    Court of Civil Appeals of Texas. Texarkana.
    March 12, 1963.
    Rehearing Denied April 9, 1963.
    Kenneth R. King, Tyler, for appellant.
    Charles H. Clark: Lawrence & Lawrence, Tyler, for appellees.
   FANNING, Justice.

On July 21, 1961, Emma Carter McKinney, a widow, executed a deed conveying two tracts of land in Smith County, Texas, to her daughter, Mae McKinney Gaiser, in which deed the consideration recited was “for and in consideration of the love and affection I hold for my daughter, and in partial recognition of the loving care and affection she has given me over the past (14) years.”

On January 12, 1962, Maudie Smith (a daughter of Mrs. Emma Carter McKinney) joined pro forma by her husband Tom Smith, as next friend for Emma Carter McKinney, filed suit in cause No. 62-20, against Mae McKinney Gaiser and husband Richard Gaiser, seeking to cancel the above referred to deed on the ground that Emma Carter McKinney was mentally incompetent to execute the conveyance. The Gai-sers answered said suit on January 31, 1962, and on May 14, 1962 filed a cross-action in said suit against the Smiths, alleging that Mrs. McKinney was mentally competent to execute the deed in question and seeking judgment that the court declare the deed in question to be valid. On May 14, 1962, the Smiths requested the trial court to dismiss their suit in cause No. 62-20, which motion was granted by the trial court.

On July 26, 1962, the Gaisers in said cause No. 62-20 filed their first amended petition and cross-action seeking affirmative relief against the Smiths and Emma Carter McKinney, alleging that Mrs. McKinney was mentally competent to execute the deed in question, and seeking judgment that the court declare the deed to be valid.

On July 30, 1962, the Gaisers filed a motion to dismiss their suit as against the defendants Maudie Smith and Tom Smith, which motion was granted by the trial court.

On July 30, 1962, Emma Carter McKinney, through her attorney of record in said cause No. 62-20, filed an answer to Defendants-Cross Plaintiffs Gaisers’ First Amended Petition and cross-action.

On July 30, 1962, Maudie Smith, joined pro forma by her husband Tom Smith, as next friend for Emma Carter McKinney, by their attorney of record, filed another petition in said cause No. 62-20, seeking cancellation of the deed in question, alleging that Mrs. McKinney was mentally incompetent to execute the same.

Cause No. 62-323 involving the same parties and same subject matter as cause No. 62-20, was filed on May 14, 1962, and was pending on July 30, 1962, when Maudie Smith, as next friend for Emma Carter McKinney, through her attorney, orally moved that the said two causes be consolidated, which motion was denied by the trial court.

On July 30, 1962, in said cause No. 62-20, in a trial before the court without a jury, the trial court found to the effect that Emma Carter McKinney was mentally competent to execute the deed in question and held the deed to be valid and rendered judgment in favor of the Gaisers. Maudie Smith, as next friend of Emma Carter McKinney, filed a motion for new trial which was overruled. Maudie Smith, as next friend for Emma Carter McKinney, has appealed.

Appellant presents two points on appeal. By her first point appellant contends that the trial court erred in refusing to consolidate cause No. 62-20 with cause No. 62-323. The same matters involved in cause No. 62-20 were also involved in cause No. 62-323, involving the mental competency of Mrs. McKinney and the validity of the deed in question. In McDonald et al. v. Follett et al., Tex.Civ.App., 193 S.W.2d 287, wr. ref., it was held that the consolidation of two causes involving the same matters was discretionary with the trial court. It was also stated by the Supreme Court of Texas in Womack v. Berry et al., 156 Tex. 44, 291 S.W.2d 677, in part as follows:

“The Rules of Civil Procedure bestow upon trial courts broad discretion in the matter of consolidation and severance of causes, and the trial court’s action in such procedural matters will not be disturbed on appeal except for abuse of discretion. See Hamilton v. Hamilton, [154 Tex. 511], 280 S.W.2d 588.”

We hold that under the record in this cause the trial court did not abuse its discretion in refusing to consolidate cause No. 62-20 with cause No. 62-323. Appellant’s first point is overruled.

Appellant’s second point is as follows:

“The Court erred in permitting Emma Carter McKinney to proceed to trial in that the said Emma Carter McKinney was not competent nor had the legal capacity at such time to be sued, to employ counsel or to properly prepare a defense to the action brought by Appellee.”

The great weight and preponderance of the evidence strongly supports the trial court’s finding that Emma Carter McKinney was mentally competent to execute the deed in question. The medical testimony in the case is to the effect that she was mentally competent to execute the deed. The attorney who drew the deed for her testified that he talked to her with reference to drawing the deed and observed Mrs. McKinney, and testified to the effect that in his opinion she was mentally competent to execute the deed. Emma Carter McKinney, who was alleged to be mentally incompetent by the Smiths, took the witness stand herself, and the trial court heard her testimony and had an opportunity to observe her demeanor and conduct on the witness stand. The testimony that Emma Carter McKinney gave on the witness stand is clear and coherent and is entirely compatible with the conclusion that she was mentally competent and it was her contention that she was competent to execute the deed and that she did so for the consideration expressed in the deed. The testimony offered at the trial and on the motion for new trial attacking the mental capacity of Emma Carter McKinney, if it had any probative force, was of an unusually weak nature. Appellant’s second point is overruled.

The judgment of the trial court is affirmed.


text:
    R. A. BRIGGS, Appellant, v. FREEWAY PARK DEVELOPMENT COMPANY, Appellee.
    No. 16386.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1963.
    Rehearing Denied April 12, 1963.
    Oscar Nipper, Houston, for appellant.
    Ed Schwab, III, Galveston, Graves, Cottingham & Russell, James T. Russell, Paul E. Cottingham, and Louis W. Graves, Jr., Houston, for appellee.
   MASSEY, Chief Justice.

The appeal in this instance is from a summary judgment granted Freeway Park Development Company, hereinafter termed plaintiff, against R. A. Briggs, hereinafter termed defendant. We reverse this judgment and remand the cause.

Basis of our action lies in our opinion, and holding, that the want of a necessary party inhibited a recovery under the theory upon which the summary judgment was granted. This necessary party was S. M. Briggs, Trustee, father of the defendant. Although the form of action of statutory trespass to try title in a suit against defendant by plaintiff did not require the presence of S. M. Briggs, Trustee, state of the proof in the record makes it clear that a necessary premise for plaintiff’s recovery would lie in the establishment of an equitable title in itself through S. M. Briggs, Trustee, in Briggs original acquisition of the legal title. Necessity existed, therefore, that plaintiff’s proof establish its right to have a trust engrafted upon the land sought— through S. M. Briggs, Trustee, — by showing that it was Briggs’ cestui que trust or was the owner of the beneficial interest in the property. Briggs, Trustee, had purportedly conveyed the property to defendant under a warranty deed which plaintiff contended was spurious or in any event without legal requisites which conferred validity, and that defendant was not an innocent purchaser.

Therefore, the form of suit could have well been one in which, by a bill in equity, plaintiff sought to have its equitable title established and the court’s authority exercised through the impression of a constructive or resulting trust on the property and the removal of the cloud on its title created by the deed to defendant.

In such a case S. M. Briggs, Trustee, would be a necessary party under the general rule applicable in Texas. Hall v. Harris, 1854, 11 Tex. 300; Powell v. Parks, 1935, 126 Tex. 338, 86 S.W.2d 725; 42 Tex.Jur., p. 781, “Trusts”, sec. 159, “(Parties) — In Suits By or Against Cestui”; 90 C.J.S. Trusts § 457, p. 894, Parties; 65 C.J. Trusts § 961, p. 1032, “(Parties — Necessary Parties) — (3) Trustees or their Heirs or Personal Representatives”.

On date of the summary judgment S. M. Briggs was alive and subject to the jurisdiction of the court. Nowhere in the evidence, or in the pleadings (including portions of pleadings we believe should be treated as abandoned), did plaintiff contend that defendant ever became a quasi-trustee, or relieved his father of the burden of a trustee’s status and succeeded to or assumed the same in his place and stead. There could not be said to have been existent any exception to the general rule requiring the presence of S. M. Briggs, Trustee.

In ordinary trespass to try title suits, in instances where the defendant files a plea of “not guilty” or such is embraced in the reply, the defendant is entitled to prove any defense available legal or equitable, except that of limitation. Texas Rules Civil Procedure 789, “Proof Under Such Plea (‘Not Guilty’)”; Ragsdale v. Gohlke, 1871-72, 36 Tex. 286; 41-A Tex. Jur., p. 620, et seq., “Trespass to Try Title”, sec. 97, “Defenses Available under Plea— In General”, sec. 98, “ — Particular Defenses”, and sec. 99, “ — Title or Ownership”. We believe that there were matters of defense which defendant would be entitled to interpose, and which were not tried, even if the case did not involve the necessity that plaintiff establish the elements of a trust as a premise. In any event where the defendant pleads “not guilty” the burden is on the plaintiff, movant in a motion for summary judgment in a trespass to try title case, to show that the defendant had no such defense. That plaintiff did not show this is apparent from the record.

The pleadings of the plaintiff had at one time included specific allegations, which if supported by evidence would have warranted an equitable decree of constructive or resulting trust as against S. M. Briggs, Trustee. At that time Briggs was a party of whom plaintiff was complaining, along with the defendant. Such was the condition of plaintiff’s pleadings when the court heard plaintiff’s motion for summary judgment and when the judge thereof began to hold a decision under consideration. Before the judge ruled on the motion plaintiff decided to dismiss S. M. Briggs, Trustee, and accordingly took a nonsuit as to said trustee leaving plaintiff and defendant the sole parties to the controversy. Plaintiff placed strong reliance on its case as established as the result of defendant not having answered requests for admission served upon him under T.R.C.P. 169, “Admission of Facts and of Genuineness of Documents”. Basically, the constructive admissions considered to have been made by the defendant related to facts controlling the question of plaintiff’s right to have a trust engrafted upon the subject property. S. M. Briggs, Trustee, had the same requests for admissions served upon him and he had answered in such manner that it was necessary to any adjudication against him that a trial be held, in which plaintiff’s right to have a trust declared would be the issue. Plaintiff decided that it would be entitled to a summary judgment against the defendant if he were the sole defendant. Hence its nonsuit against Briggs. A few days later the summary judgment was rendered in behalf of plaintiff and against the defendant.

The effect of plaintiff’s nonsuit was. to abandon for any consideration in the case all parts of plaintiff’s pleading relating to the trust phase. Though questions relating to the trust phase might have been proper to litigate as against S. M. Briggs,. Trustee, even without the specific pleadings, the same questions would not be triable as between plaintiff and defendant at a time when he was not a party to the suit. As-previously indicated plaintiff’s right to recover could only be founded in evidence which established his right to prevail under a trust theory.

Plaintiff has presented separate motions to strike the transcript and what it terms the “statement of facts”. Grounds, therefor are generally without merit, and where applicable would only be to an improperly filed affidavit and late answers to-requests for admissions. These involve about three pages in the transcript. Most certainly plaintiff has not sustained prejudice by reason thereof. The motions are overruled.

Judgment is reversed and the cause remanded.


author: PALMORE, Judge.

text:
    James William RILEY, Executor of the Estate of Stephen Silas Riley, Deceased, Appellant, v. Alvin O. HORNBUCKLE, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1963.
    Rehearing Denied April 26, 1963.

      Joseph Davis, Louisville, for appellant.
    Kenneth L. Anderson, Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellee.
   PALMORE, Judge.

Watterson Expressway is a limited access by-pass highway skirting Louisville on the south and east. Traffic moving in opposite directions is separated by a median strip, with two lanes on each side except for entrance and exit points, where the road widens to three lanes for short distances to facilitate the flow of interchange traffic. An ordinance of the City of Louisville prohibits and makes punishable, with certain exceptions, the intrusion of pedestrians on the vehicular thoroughfare of the expressway. Stephen Silas Riley, an 80-year old man, was struck and killed by an automobile driven by the appellee, Alvin Hornbuckle, as he was attempting to walk on or across the east-bound portion of this highway. His personal representative’s suit for wrongful death resulted in a directed verdict of dismissal following the opening statements of counsel.

Though several pre-trial depositions had been taken and filed (which could properly have been considered had the motion for a directed verdict been treated as a motion for summary judgment), it is clear that the trial court’s action rested entirely on the opening statement of counsel. Hence appellee is technically correct in his contention that the depositions have no place in this review. However, it really makes no difference, because a directed verdict at this stage of the proceedings is never based on the mere insufficiency of the opening statement to support a case, but always upon the presence of admissions that are fatal to the case. In short, a directed verdict is made proper not by what the opening statement fails to say, but by what it does say. And this being true, if an opening statement contains something fatal to the plaintiff’s case, that circumstance would not be altered by the supplementary effect of depositions theretofore taken.

We do not mean to imply that a mistake in the opening statement could not be corrected, but this ordinarily would be accomplished by a further statement of counsel made to the jury by permission of the court before the motion for directed verdict is sustained and the order carried out.

Counsel’s opening statement for the plaintiff disclosed that the accident occurred on the east-bound portion of the expressway near the island separating the exit to and entrance from Second Street. Hornbuckle, driving eastward, entered the expressway from Third Street, several hundred feet west of the point of impact. The entire area was well lighted, and it is claimed that he had an unobstructed view all the way. In fact, as he got onto the expressway he noticed another automobile entering at the Second Street interchange. There was no traffic between. This automobile ahead of him appeared to be moving slowly, so Horn-buckle began to veer his own vehicle toward the left or passing lane, and traveled astraddle of the white line dividing the two traffic lanes for a distance of 400 to 500 feet until he struck Riley. (At this stage of the opening statement counsel pointed to one of the pictures in the record in fixing the place in the highway where Riley was run down, and although we do not have any supernatural powers enabling us to ascertain where he was pointing, from the briefs and from the other circumstances of the case there can be little doubt that it was on or very nearly on the white line marking the center of the two east-bound lanes.) According to the opening statement Riley was, despite his age, alert and spry, and Hornbuckle had defective vision.

The trial court gave a peremptory on the ground that Riley was negligent per se in being on the highway afoot in violation of the ordinance and that such negligence was a contributing cause of the accident.

We are of the opinion that if counsel had admitted in his opening statement that Riley’s presence on the highway did not fall within one of the exceptions enumerated in the prohibitive ordinance it would have been proper for the court to take the issue of contributory negligence from the jury. Appellee’s point that this is the very type of accident the ordinance was designed to prevent is well taken. It is no answer to say that the accident would have occurred even if Riley had been on the road for a legitimate reason, and that hence the violation of the ordinance was not a proximate cause. It is obvious that in either event his presence afoot on the highway would have been a proximate cause. The difference is that in the one case the ordinance makes it negligent and in the other it does not.

The issue of proximate cause does not enjoy any special exemption from the rule that if there can be no" difference of opinion among reasonable minds a question of fact is resolved as a matter of law. Ashton v. Roop, Ky.1951, 244 S.W.2d 727, and other decisions cited by the appellant represent instances in which, under the particular facts of each case, the question of whether the act or omission constituting a violation of law actually contributed to the accident, or was merely a coincident circumstance, was not sufficiently free of doubt to be resolved as a matter of law. In this case we think it is utterly clear.

Nor do we find validity in appellant’s argument that there is a “presumption” that Riley’s presence on the highway was lawful. A similar or at least kindred contention was examined at length in Louisville and Nashville Railroad Co. v. Fisher, Ky.1962, 357 S.W.2d 683, 688, and we concluded that the “presumption” theory is a fallacy unless it be considered just a clumsy way of saying that a person’s conduct is free of liability in the absence of proof that he did something wrong. The real questions here are whether, in view of the several exceptions contained in the ordinance, Riley’s unexplained presence on the highway is evidence of negligence and, if so, whether in the absence of further evidence tending to bring it within the exceptions it is conclusive. The answer to both of these questions is yes. It being the purpose of the enactment to keep pedestrians off the expressway unless they have a good and valid excuse to be there, public policy casts the burden on him who claims the exception. Cf. Smith v. Sizemore, Ky.1957, 300 S.W.2d 225, 228; Banner Transfer Company v. Morse, Ky.1954, 274 S.W.2d 380, 381; Bosshammer v. Lawton, Ky.1951, 237 S.W.2d 520.

The fact is, however, that the opening statement did not admit the absence of a valid excuse, under the ordinance, for Riley’s presence on the expressway. And however unlikely it may be that appellant could have produced any evidence in that respect, who can say that it was not possible? Until the plaintiff rests his case he is entitled to gather more evidence, and even to hope for miracles. Suppose, for example, that an undiscovered witness should first learn of the lawsuit on the eve or very day of the trial, and go to the court house with evidence tending to prove that the victim of the accident had been on the highway “in an emergency or under conditions beyond his control necessitating foot-travel” (that being one of the exceptions mentioned in the ordinance). This sort of thing occurs more often in the world of theater and television than in real life, of course, but neither we nor the trial court can presume to say it will not happen in any given instance. It was therefore premature, and in error, for the court to preempt the issue of contributory negligence.

There is yet another and more important reason why a directed verdict was not proper in this case. It is true, as observed in Severance v. Sohan, Ky.1961, 347 S.W.2d 498, 501, that over the years the last clear chance doctrine has been trimmed to a narrower (and, we believe, more accurate) basis. But it is not the intention of the court that this process be extended to the vanishing point, nor do we intend to hold that the rule will apply only where the party in peril is unconscious, crippled, fettered or otherwise in a helpless condition. While we do not withdraw in any respect from the principles stated in Saddler v. Parham, Ky.1952, 249 S.W.2d 945, a majority of the court today feels that under the facts of that case the last clear chance issue should have been submitted to the jury. If it is to have any real effect as a humanitarian policy, we think the doctrine must be held applicable to the situation in which (as in the Saddler case) there is evidence that a pedestrian who was within the intended path of travel of an oncoming vehicle remained in that area of peril, with nothing to prevent the driver’s seeing him, long enough for the vehicle to move a distance of several hundred feet. When this occurs, there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a “clear” chance ought to be left to the jury.

Severance v. Sohan, Ky.1961, 347 S.W.2d 498, is distinguishable on the facts. Mrs. Severance was never in the projected path of travel of the Sohan car until she stepped into it a moment before the accident. Mr. Riley, however, was within the east-bound thoroughfare at least long enough to walk across one lane and reach the center of the two lanes, during all of which time he was in a position of peril from any east-bound vehicle, and particularly from one whose driver chose to drive down the middle and use both lanes at once. As to his possible opportunity to avert the accident by moving out of the way, if the preliminary statement proves to be an accurate representation of the facts, surely it must be recognized that once he reached the center line he was in an acutely disadvantageous position in that he could not have known, as the car bore down on him, whether it would move to the right lane, or to the left lane, or would continue a straight course astride the center line.

We feel that the factual situation outlined in the plaintiff’s opening statement rather distinctly indicates the issue of last clear chance, this case being stronger in that respect, for example, than Ellis v. Glenn, Ky. 1954, 269 S.W.2d 234, in which the doctrine was held applicable. But even if it were questionable, certainly there was nothing in the statement to negate or foreclose the existence of an issue for the jury in that respect. As we have said, a directed verdict on the basis of the opening statement must depend on what it contains, not on what it omits.

The judgment is reversed with directions that appellant be granted a new trial.