author: PER CURIAM.

text:
    J. E. WALLING, Jr., et al., Appellants, v. NORTH CENTRAL TEXAS MUNICIPAL WATER AUTHORITY, Appellee.
    No. 3734.
    Court of Civil Appeals of Texas. Eastland.
    July 13, 1962.
    Rehearing Denied Sept. 7, 1962.

      King, Willoughby & Vletas, Abilene, for appellants.
    Will Wilson, Atty. Gen., Austin, McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellee.
   PER CURIAM.

J. E. Walling, Jr. and other taxpayers within the North Central Texas Municipal Water Authority filed suit against the Authority and its Board of Directors seeking to enjoin and prohibit them from assessing and collecting taxes under an act of the legislature creating the Authority on the ground that the act is unconstitutional. In a non-jury trial the court rendered a judgment that the plaintiffs take nothing.

The plaintiffs have appealed. They contend the court erred in rendering such judgment because the act creating the Authority is unconstitutional because it deprives them of a republican form of government, is a local law, and disfranchises them and deprives them of their property without due process of law.

The agreed statement of facts is substantially as follows: The North Central Texas Municipal Water Authority is a water improvement district created by an act of the legislature in Section 193 of Article 8280 of the Vernon’s Revised Civil Statutes of Texas; that plaintiffs are landowners and taxpayers within said District; that the Authority has assessed and is attempting to collect taxes upon plaintiffs’ property; that the Board of Directors of the Authority has been appointed by the city councils of each of the towns constituting the District; that the Board of Water Engineers of the State of Texas called an election in the towns of Seymour, Knox City, Munday, Goree, Haskell, Rule and Rochester, Texas, on June 17, 1958, for or against the proposition of whether or not the establishment of the Authority “shall be confirmed to include each city in which the majority vote favors confirmation”; that on the 26th of June, 1958, the returns were canvassed and the results were that Seymour, Munday, Goree, Haskell and Rule would compose the Authority and that Knox City and Rochester would not be included; that on the 6th day of September, 1958, an election was held to determine whether or not the Authority should be authorized to issue bonds in the amount of $4,800,000.00 and levy and collect ad valorem taxes on all taxable property in the Authority; that a majority of the voters in each of the towns then composing said Authority voted in favor of the issuance of said bonds, except the town of Seymour; that Seymour was detached from the territory of the Authority by proper resolution of the Board of Directors; that the Board of Directors also passed a resolution on September 11, 1958, that the $4,800,000.00 worth of bonds would not be issued for the reason that Seymour had voted against them; that on the 6th day of September, 1958, the respective city councils of Munday, Goree, Haskell and Rule called elections and the qualified voters were permitted to vote on the proposition of whether or not said towns should enter into a contract with the Authority for the purchase of water. Each of the cities voted in favor of making such a contract, and said four cities entered into contracts with the Authority, and agreed to purchase certain minimum amounts of water from said Authority if, as and when it was available; that the Board called an election, to be held on October 11, 1958, in the District then being composed of the towns of Munday, Goree, Haskell and Rule, to determine if the Authority would be authorized to issue bonds in an amount not to exceed $3,800,-000.00 for the purpose of providing a source of water supply for the cities and other users as authorized by the act creating the Authority by constructing dams, plants and other facilities necessary for the purpose of impounding and transporting water to the cities and to levy and collect ad valorem taxes on all taxable property in the Authority for the payment of said bonds; that the results of the election favored issuing the bonds and the Authority authorized the issuance of bonds in the amount of $150,-000.00 to be repaid from ad valorem taxes, on all taxable property in the Authority; that the bonds were dated June 1,1960; that said bonds were approved by the Attorney General of the State of Texas and registered with the Comptroller of Public Accounts and have been sold and delivered ini the amount of $125,000.00 thereof, there being on hand unsold and undelivered $25,-000.00 of said bonds; that the Board of Water Engineers of the State of Texas on October 3, 1961, issued a permit to the Authority to construct and maintain a dam on Miller’s Creek in Baylor County with a capacity of 25,520 acre feet of water.

The Authority is a conservation and reclamation district created by the legislature pursuant to Section 59 of Article 16 of the Constitution of Texas, Vernon’s Ann. St. In his able brief and in his vigorous argument appellants’ counsel contends that Section 3 of Article 8280 — 193 is unconstitutional because it provides for the appointment of a Board of Directors by a majority vote of the elected governing bodies of the cities in the District. He contends the citizens in the District are deprived of a republican form of government as provided for in Section 2 of Article 1 of the Constitution of- the State of Texas and Section 4 of Article 4 of the Constitution of the United States. Appellants contend that the recent decision by the United States Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, supports their contentions. This case involved the Tennessee apportionment act of 1901. Mr. Justice Stewart in a concurring opinion said:

“The separate writings of my dissenting and concurring Brothers stray so far from the subject of today’s decision as to convey, I think, a distressingly inaccurate impression of what the Court decides. * * * The Court today decides three things and no more: ‘(a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief; and (c) * * * that the appellants have standing to challenge the Tennessee apportionment statutes.’ ”

The Texas Supreme Court in the case of Houston & T. C. Railway Company v. Harry and Bros., 63 Tex. 256, said:

“He that claims an act of the legislature to be in conflict with the Constitution must be able to put his finger on the provision of the Constitution in-fracted, and it must clearly appear that such is the character of the act or it cannot be so held.
“It is not enough that the act may seem to be impolitic, or that it may be in conflict with what may seem to be, abstractly considered, a correct theory of right; if it be not in conflict with the spirit and the letter of the Constitution, the former to be ascertained from the language in which the Constitution is written, it is the duty of a court to hold the act valid.”

The results of an election held by the towns in the District favored the issuance of bonds for the purpose of providing a source of water supply to be repaid from ad va-lorem taxes on all taxable property in the District. We have reached the conclusion that Baker v. Carr, supra, is not in point and, therefore, does not support appellants’ contention. We find nothing in the United States Constitution or in the State Constitution which would authorize us to say that the citizens of the Authority are being deprived of a republican form of government.

Appellants’ point that the act creating the Authority is unconstitutional because it is a local or special law was decided contrary to their contention by our Supreme Court in the case of Harris County Flood Control District v. Mann, 135 Tex. 239, 140 S.W.2d 1098. The court said:

“We are of the opinion that we have disposed of the contention that the 1937 Act violates that part of Section-56 of Article III of our State Constitution above indicated in our holding that this Act creates this District as a State governmental agency, a body politic and corporate, separate, distinct, and independent within itself. Simply stated, the Act of 1937 is fully authorized by Section 59 of Article XVI of our State Constitution, and the Act creating this District should not be classed as a local or special law within the meaning of the constitutional provision under discussion. Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629; Brazos River Con. & Rec. Dist. v. McCraw, 126 Tex. 506, 91 S.W.2d 665.”

Appellants’ point that the act creating the Authority is unconstitutional under Section 19, Article 1 of the Constitution of the State of Texas and Section 1, Amendment 14, of the Constitution of the United States in that it disfranchised and deprived the citizens in the Authority of their property without due process of law is without merit. Following the prescribed statutory procedure, the citizens of the District, by a majority vote, favored coming under the terms of the statute and the issuance of the bonds to be repaid from ad valorem taxes on all taxable property in the Authority.

The judgment is affirmed.

GRISSOM, C. J., not sitting.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Jack H. OSBORNE, Appellant, v. W. H. DEAN, Appellee.
    No. 7168.
    Court of Civil Appeals of Texas. Amarillo.
    June 18, 1962.
    Rehearing Denied Sept. 4, 1962.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    W. T. Link, Clarendon, for appellee.
   CHAPMAN, Justice.

This is a summary judgment case. W. H. Dean, plaintiff below, appellee here, brought suit against appellant, Jack Osborne, to recover upon a promissory note, alleging the note was executed by Osborne and that he purchased it for a valuable consideration before its maturity. Osborne admitted execution of the note, denied that Dean had purchased it before maturity, and alleged that in fact he actually purchased it after its maturity and with knowledge of defenses against it.

Dean filed his Motion for Summary Judgment, which was answered under oath by Osborne in Defendant’s Original Answer to Plaintiff’s Motion for Summary Judgment. In such answer he swore .that “he has a meritorious defense to this cause of action * * * in that plaintiff is not a bona fide holder of the note in suit, but received the note in bad faith and after its maturity and with expressed or implied notice that defendant was * * * entitled to credits (offsets) on said note by reason of .the sale or conversion of certain oil field equipment by the original payee of the note, * * * as is more fully, evidenced by the defendant’s affidavit which is attached hereto and marked Exhibit “B” and incorporated herein by reference for all intents and purposes.” In his oath he swore he had read the answer, that every statement and allegation thereof was true, that the statements therein were made on his personal knowledge and that he is competent to testify as to the matters stated therein.

In the affidavit of appellant he elaborated on his answer, in which he swore in effect that approximately eight months after the due date of the note appellee called him by telephone, told him he was considering taking the note in controversy in on a deal and wanted to know about it; that he (Osborne) advised Dean that the note was given to Pat Slavin to secure the payment price of oil field equipment, that Slavin had sold or converted the equipment for which the note was executed for his own use and that Dean replied, “Well, I had better look for my money some place else.”

As part of his “evidence” and in support of his motion appellee tendered supporting affidavits of Pat Slavin and Pete Knapp to the effect that the note was sold and delivered to Dean before maturity for valuable consideration and that Osborne never denied owing the note. Osborne’s deposition taken by appellee was also tendered, in which he admitted signing the note on the date sworn, that it was in the amount agreed upon and that he delivered it to Slavin. What we have briefly outlined was the substance of the material pleadings, affidavits and deposition the trial court had before it from which the judgment was summarily rendered for appellee on the note.

Considerable contention is made by the appellant to the effect that the motion for summary judgment and the supporting affidavits failed to show affirmatively that same were made on personal knowledge of the affiants and that they were competent to testify to the matters stated therein, as required by 'Rule 166-A. Though we believe a more strict compliance with the stated rule .would be better form ive hold the affidavits on their faces show they were made on personal knowledge of the affiants and that they were competent to testify to the material matters stated therein. Our Supreme Court through Justice Steakley has recently, and very properly held that a motion for summary judgment without supporting affidavits and depositions was insufficient which stated “that the drivers of all vehicles involved were and are joint tort-feasors.” Box v. Bates, Tex., 346 S.W.2d 317. Such statement was clearly a legal conclusion that could not be testified to on the trial of the case in such language. To the contrary the supporting affidavits of Slavin and Knapp show on their faces their personal knowledge of the material matters to which they affirm and show to be such that they could testify to them on the trial of the case on its merits. This being true we must, therefore, determine if appellant’s affidavit raises a genuine issue of fact contradicting such affidavits. Rule 166-A, Vernon’s Ann. Texas Rule.

A careful study of appellant’s defenses hereinabove outlined compels us to the conclusion that, implicit in his sworn affidavit are genuine issues of fact rendering premature any final disposition thereof by summary proceedings. The telephone conversation related in the affidavit, if true, raises a question of whether Dean purchased the note before maturity and without notice of defenses. If the note was given for the purchase price of oil field equipment from Slavin, that he had sold or converted to his own use then we believe it requires no citation of authority for us to say that the maker of the note clearly had a defense to it against the payee in the note. According to the affidavit such was the case and Dean still had not purchased the note at the time of the conversation some eight months after maturity, and was advised of such defenses.

“The duty of the court hearing the motion for summary judgment is to determine if there are any issues to be tried, and not to weigh the evidence or to determine its credibility, and thus try the case of the affidavits.” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931. (Sup.Ct.)

A large percentage of the cases reaching us from summary judgments granted by the trial courts are cases we cannot affirm because of the exceptional burdens that must be borne by those seeking to sustain judgments, summarily granted.

Resort to the remedy of summary judgment where there is any doubt is futile because of the abundance of authority to the effect that all doubts must be resolved against the moving party, the practice must be exercised with great caution, and litigants must be accorded the right to final trial if there is the slightest doubt as to the existence of a fact issue. Rule 166-A can be made to fulfill its purpose if it is invoked only in appropriate cases, and these are just not very numerous. Penn v. Garabed Gulbenkian, Tex.Civ.App., 243 S.W.2d 220, 223. (Affirmed, Gulbenkian v. Penn. 151 Tex. 412, 252 S.W.2d 929.)

Accordingly, the judgment of the trial court is reversed and remanded for a trial on its merits.


author: WALTER, Justice.

text:
    Clifton L. McELWEE et al., Appellants, v. Mrs. Clara B. RICE, Appellee.
    No. 3725.
    Court of Civil Appeals of Texas. Eastland.
    July 27, 1962.
    Rehearing Denied Sept. 7, 1962.
    Carl C. Chase, Corpus Christi, Ellis Clark, Rockport, for appellants.
    Guy Allison, Corpus Christi, for appellee.
   WALTER, Justice.

Clifton L. McElwee and wife and their minor daughter filed suit against Mrs. Clara B. Rice for damages resulting from an automobile collision.

Mrs. McElwee was driving her automobile in a northerly direction on Eleventh Street in Aransas Pass. Mrs. Rice was driving east on Wilson Street. The accident occurred about 11:00 o’clock in the morning at the intersection of Wilson and Eleventh Street. Mrs. McElwee approached the intersection at about 25 miles per hour. Mrs. Rice approached the intersection at about 5 miles per hour. She testified that she did not see the stop sign on her right as she entered the intersection nor did she see the McElwee car before the collision. The jury found that Mrs. Rice failed to keep a proper lookout as she entered the intersection and that this was a proximate cause of the collision. The jury also found Mrs. McElwee guilty of several acts of negligence and that each was a proximate cause of the collision. Based on the verdict, judgment was rendered that the plaintiffs take nothing. The court granted the minor plaintiff’s motion for a new trial but overruled Mr. and Mrs. McElwee’s motion for a new trial.

The adult plaintiffs have appealed, contending the court erred (1) in granting a partial summary judgment (2) in refusing to admit evidence relative to the stop sign (3) in refusing to admit in evidence photographs of the intersection showing the stop sign and (4) in refusing to admit evidence of Mrs. Rice’s plea of guilty to a charge of running the stop sign. They also contend the verdict is contrary to the great weight and preponderance of the evidence.

In her motion for a partial summary judgment, Mrs. Rice alleged that the stop sign was illegally placed and maintained at the intersection and, therefore, she was under no obligation to obey it. The court held that the stop sign had been illegally erected and instructed appellants’ counsel not to present evidence relative to the stop sign. Appellants then filed an amended petition which did not contain allegations that Mrs. Rice ran the stop sign.

Assuming, without deciding, that the court erred in granting the partial summary judgment and in refusing to admit evidence relative to the stop sign, we are of the opinion that reversible error is not shown. The jury found appellant guilty of several specific acts of negligence and that each was a proximate cause of the collision. Any error committed by the court relative to the stop sign was harmless in view of other evidence, particularly that of Mrs. McElwee’s. In the absence of the jury, Mrs. McElwee testified that she knew the stop sign was located at said intersection and Mrs. McElwee’s attorney asked her the following question, “Did the fact that she had a stop sign at that corner affect your thinking any with regard to your traveling through the intersection?”-she answered, “Well, not necessarily.” Therefore, it does not appear that the jury’s answers to the issues relative to plaintiff’s negligence would probably have been affected by the rejected testimony.

We have considered all the evidence and find that the verdict and the judgment are not contrary to the overwhelming weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have examined all of appellants’ points and find no merit in them. They are overruled. The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    JOHNSON TESTERS, INC. v. J. W. KIRBY.
    No. 7143.
    Court of Civil Appeals of Texas. Amarillo.
    June 11, 1962.
    Rehearing Denied Sept. 4, 1962.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Huff & Bowers, Lubbock, for appellee.
   DENTON, Chief Justice.

The opinion heretofore rendered in this case on April 23, 1962 is hereby withdrawn and the following opinion is substituted in lieu thereof.

This is an appeal from an order overruling appellant’s plea of privilege. The suit was instituted by appellee J. W. Kirby for personal injuries alleged to have been received by him on an oil well site in Motley County, Texas. Kirby was an employee of P-M Drilling Company, and brings this action against Johnson Testers, Inc., independent contractors, who had been employed by P-M Drilling Company to run a drill stem test on the well being drilled. Appellant filed a plea of privilege to be sued in Harris County, Texas, its legal residence. Appellee’s controverting affidavit seeks to maintain the suit in Motley County under Subsection 9a of Article 1995, Vernon’s Ann.Civ.St., the subdivision dealing with negligent acts or omissions which occur in "a given county proximately resulting in the alleged injuries.

Appellant’s points of error relate to the sufficiency of the evidence that áppellant’s employee had committed an- act of negligence, proximately causing the alleged injuries to Kirby. The first point of error deals with the question of law of “no evidence” and the remaining points raise the fact question of the evidence being insufficient to support the trial court’s judgment. Two acts of negligence of appellant’s employee Francis were pleaded: in placing “chicksand joints” on t'he “pull-rope” being used by Kirby; and in failing to warn Kirby that they were placing the named tools upon the “pull-rope.”

Kirby was a derrickman on an oil well drilling crew. Shortly after Kirby came on duty this particular day, the driller ordered him to pull the “kelly.” The “kelly” had been picked up for the purpose of draining water from the hose to prevent it from freezing. Kirby and other crew members were to put the “kelly” back into the “rat hole.” To carry out this operation, Kirby picked up the “pull-back rope” and began wrapping it around the “cathead.” The other end of the rope was attached to the “kelly.” By wrapping the rope around the “cathead,” slack would be taken out of it and as the rope became taut it would move the “kelly” to the desired location. Kirby testified that while in the process of winding the rope around the “cathead” slack suddenly came into the rope, and caused him to be pulled into the “cathead” and he was wrapped around it in such a manner that he was seriously injured. The rope extended from the “cathead” to the “pull-back pole,” thence to the “kelly,” but Kirby was unable to see that portion of the rope extending from the “pull-back pole” to the “kelly.” The record contains evidence to the effect that when slack comes in a rope after being taut while it is being wound around a “cathead,” the slack travels through the rope and will foul; that is, it will cause the rope to jump over the wraps of rope and roll with the “cathead.” It was this, fouling that pulled Kirby into the twisting rope and caused his injuries. The cause of Kirby’s injuries is thus clearly established by the evidence. Our concern here is whether or not the evidence supports the trial court’s finding that appellant’s employee committed an act which was negligence and a proximate cause of Kirby’s injuries.

It is fundamental that in order to maintain venue under Subdivision 9a of Art! ’ 1995 the burden was on the appellee to prove that appellant’s employee was guilty of negligence which proximately caused his injuries. It is also settled that in passing on the law question of no evidence to support the implied finding of the trial court, we are required to follow the rule that: “If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have 'found in his favor, then 'it is to be concluded that there is evidence-to support the finding.” Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.

Testimony of both Kirby and his fellow employee Osborne was to the effect the rope was fouled or became slack at some place between the “pull-back pole” and the “kelly.” Kirby further testified that before the slack came in the rope it was taut from the “cathead” to the “pull-back pole.” There is evidence in the record that weight on the rope which is being wrapped around the “cathead” would cause the rope to be fouled, and if the slack is unexpected to the operator, it would result in the rope fouling at the “cathead.” Kirby testified that as he went on duty he saw Francis, appellant’s employee, standing on the catwalk holding a “chicksand joint.” “Chicksand joints” were described as a ten-foot, one and one-half inch pipe with swivel joints on each end, and weighing 40 or 50 pounds. Some five minutes later Kirby began the operation previously described. Immediately prior to the accident Osborne, who was standing with his hand on the “kelly,” heard a noise. He looked up and saw a “chicksand joint,” a “manifold” and a “bubble hose.” He testified the “chicksand joint” “was skooting across the floor,” and the hose was lying over the top of the “pull-back rope.” There is no direct evidence that Francis placed the “chicksand joint” on the rope or that the joint was actually lying on the rope immediately prior to the incident, but Osborne testified he saw it “skooting across the floor” in the vicinity of the moving “pull-back rope.” Kirby also placed the “chicksand joint” in Francis’ possession some five minutes prior to the time ini question. Obviously, some of the evidence presented by the appellee is of a circumstantial nature, but venue facts can be established by circumstantial evidence. Ward & McCullough v. Mobley, Tex.Civ.App., 250 S.W.2d 948; Davis v. Bailey, Tex.Civ.App., 187 S.W.2d 412.

There was direct evidence that the “pullback rope” was suddenly slackened which caused it to foul at the “cathead,” resulting in Kirby’s injuries. It was uncontradicted that oil field workers recognize that weight on a “pull-back rope” causes fouling when weight is suddenly removed by the movement of the rope. Other direct evidence included testimony that Francis was in the vicinity holding “chicksand joints,” and that these joints were specialized tools used only in drill stem testing operations. These joints are not used in oil well drilling. Although Francis denied he laid the “chick-sand joints” on the rope, and stated he could not remember removing them from his truck at the time of the accident, these denials merely raise fact issues that were determined by the trial court adversely to appellant. The direct evidence offered by appel-lee will be reviewed together with the circumstantial evidence of Osborne hearing the noise immediately prior to the Kirby injury; seeing the “chicksand joints” moving across the floor and seeing the “bubble hose” pulled out from under the joints as the rope and hose were being raised into the air. Although there is no direct evidence that Francis did in fact lay the “chicksand joints” on the “pull-back rope” there is circumstantial evidence to this effect. In our opinion this circumstantial evidence raises a strong inference that Francis committed the act complained of. The trial court impliedly so held in overruling appellant’s plea of privilege.

After reviewing the evidence, both direct and circumstantial, in the light most favorable to the appellee, we conclude there was evidence to support the action of the trial court in holding, for venue purposes, that Francis was negligent and that such negligence was a proximate cause of ap-pellee’s injuries.

Appellant’s remaining points contend the trial court’s judgment is against the great weight and preponderance of the evidence.' In considering these points we are required to consider and weigh all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Fisher Const. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126. We deem it unnecessary to reiterate the evidence previously set out. The record contains conflicting testimony and after carefully reviewing the entire record, weighing the evidence both for and against the trial court’s findings, we are of the opinion the evidence supports the trial court’s presumed findings that appellant’s employee committed the alleged negligent acts in Motley County, and that such acts were a proximate cause of the injuries alleged to have been sustained by appellee.

The order of the trial court in overruling the appellant’s plea of privilege is affirmed.


author: NORTHCUTT, Justice.

text:
    PLAINS TRANSPORT, INC., Appellant, v. Florence PARKER, Appellee. PLAINS TRANSPORT, INC., Appellant, v. James FULFORD, Appellee. PLAINS TRANSPORT, INC., Appellant, v. Lewis SIMMONDS, Appellee. PLAINS TRANSPORT, INC., Appellant, v. Merlin HOBBS, Appellee.
    No. 7161.
    Court of Civil Appeals of Texas. Amarillo.
    June 18, 1962.
    Rehearing Denied Sept. 4, 1962.

      Crenshaw, Dupree & Milam; Blanchard & Clifford, Lubbock, for appellant.
    Hackney & Crawford, Brownfield, Stub-beman, McRea, Sealy & Laughlin, Midland, for appellees.
   NORTHCUTT, Justice.

All of the above mentioned cases were tried upon one statement of facts, and the disposition here made in the Parker Case applies to each and all of the above designated cases, since the same questions are involved in each of them. The plaintiff will hereinafter be referred to .as appellee and the defendant as appellant.

This is a Plea of Privilege case under the negligence exception (Subdivision 9a) of the Venue Statute, and the corporation exception (Subdivision 23) of the Venue Statute.

The appellee herein, is the widow of a volunteer fireman who suffered fatal injuries at the scene of a fire and explosion in Terry County, Texas, just south of Brownfield, Texas, where he went, in his capacity as a volunteer fireman. Appellee brought a common law action for damages in Terry County against appellant, Plains Transport, Inc., allegedly sustained as a result of the explosion and due to the negligence of appellant’s employees in the manner of driving the transport truck which exploded, and in the construction of the transport trailer involved, in general.

Appellant duly filed its plea of privilege to be sued in Lubbock County, Texas, the County of its residence and domicile, which plea was controverted. Upon hearing of the plea of privilege, the trial court overruled the appellant’s plea from which order the appellant prosecuted this appeal.

The appellant presents this appeal upon four points of error contending the trial court erred in overruling appellant’s plea of privilege because appellee failed to prove a cause of action against appellant; because appellee failed to prove, by preponderance of the evidence, that any act or omission of negligence occurred in Terry County, where suit was filed; that appellee failed to prove, by preponderance of the evidence, that any act or omission of negligence was committed by appellant’s employee and ap-pellee failed to prove, by preponderance of the evidence, that there was any act of negligence by appellant’s employee, which was a proximate cause of appellee’s injuries. Appellant presented all of its points together since all points relate to the sufficiency and weight of the evidence, if any, that appellant’s employees were guilty of acts of negligence proximately causing injuries to the appellee.

Appellee seeks to retain venue in Terry County, where the action occurred, under Subdivision 23 and/or 9a of Article 1995, Vernon’s Ann.Texas Statutes. Under Subdivision 23 appellee could maintain the suit in Terry County by pleading and proving the cause of action or a part thereof arose in that county. Under Subdivision 9a ap-pellee could maintain suit in Terry County by establishing that an act or omission of negligence occurred in Terry County; that such act or omission was that of the defendant, in person, or that of its servant, agent or representative acting within the scope of his employment, and that such negligence was a proximate cause of appel-lee’s injuries.

We are of the opinion the sole question here to be determined is did the appellee introduce sufficient evidence to prove negligence and that such negligence was a proximate cause of appellee’s injuries. There is no question but what Ruben Thomas Johnson was an agent of the appellant and if there was any negligence it certainly was in Terry County where the suit was filed. In determining if the court had sufficient evidence before it to hold that the plaintiff had sustained the burden of proof as to negligence and proximate cause, we list a part of the evidence introduced.

The witness, Serpa, testified he and Johnson were traveling in convoy because appellant’s transport had no spare tire; that he had driven heavy trucks for the past 15 years; that their average speed from Hobbs to Brownfield was 45 mph; that they traveled 300 yards and up apart; that a safe distance for butane transports at 35 to 40 mph would be 500 yards apart; that when Serpa was 200 yards, from the intersection where the collision occurred Johnson was 300 yards behind him; that when Serpa entered the intersection Johnson had closed in and was within 150 to 200 yards from him; that he was driving his transport approximately 35 mph, or right in there when he passed the intersection where appellant’s transport and the pickup collided; that as he went through the intersection and was 100 to 150 yards beyond he saw Johnson and a pickup come together in the intersection; that it don’t take long to stop when driving at 35 mph and you can stop within 60 to 70 feet. We are of the opinion this is sufficient evidence to sustain a holding that Johnson was driving at an excessive rate of speed under the circumstances and also in excess of the 45 mph limitation, and was negligent.

State Highway Patrolman Jackson testified he was called to the scene of the accident and arrived in 5 or 6 minutes; that when he got there traffic had been stopped and was being routed around the accident scene; that the area of the accident was blocked off; that he found skid marks; that he found dug up asphalt at the point of the impact; that the truck cab and pickup were both red; that he found red paint from the pickup on the bumper of the truck tractor; that he found skid marks left by two dual wheels of the truck, left side of the truck, 53 feet in length; that the skid marks started about 83 to 84 feet from the point of impact. This testimony is sufficient to sustain a holding of defective brakes, and taken in connection with the evidence of Serpa would sustain a holding as to excessive speed under the circumstances. There was other evidence not here set out.

It is stated in the case of Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, by the Supreme Court as follows:

“It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. See English v. Miller, Tex.Civ.App., 43 S.W.2d 642 (wr.ref.); Henry v. Publix Theatres Corp., Tex.Civ.App., 25 S.W.2d 695 (wr.ref.). The jury is thus not only the judge of the facts and circumstances proven but .may also draw reasonable inferences and deductions from the evidence adduced before it. Its findings may not be disregarded under the provisions of Rule 301 [T.R.C.P.], therefore, if the record discloses any evidence of probative value which, with inferences that may be properly drawn theréfrom, will reasonably support the same.”

In this case the judge heard the evidence without a jury and his findings would be given the same effect as the findings of a jury.

See also the case of Austin Road Company et al. v. Willman et al., Tex.Civ.App., 303 S.W.2d 878 as it is stated :

“To maintain venue when a defendant has filed a plea of privilege, all the plaintiff is required to do is make out a prima facie case, and if the evidence is sufficient to support a finding in favor of the plaintiff in the absence of any evidence by the defendant, then it is proper to overrule the plea of privilege. Austin Bros. v. Sill, Tex.Civ.App., 83 S.W.2d 716; Stephens v. Coppock, Tex.Civ.App., 212 S.W.2d 879; Clay v. Moore, Tex.Civ.App., 175 S.W.2d 433; Holton v. Hutchinson, Tex.Civ.App., 90 S.W.2d 1103.
“The evidence as to point of impact, skid marks, damage to the respective vehicles, the course and distance traveled by each after the impact, the other physical facts testified to by the officer, the statement by Williams to the officer that he ran into the plaintiffs’ car, and evidence from which the court could infer that plaintiffs’ car was in its proper lane of travel proceeding at a speed of about 50 miles per hour when the car was hit in the rear by the truck were, in our opinion, sufficient to raise issues as to one or more of the thirteen acts of negligence alleged by plaintiffs.
“The evidence of the physical facts was of some probative force. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; Chapman v. Evans, Tex.Civ.App., 186 S.W.2d 827.
“Both negligence and proximate cause may be inferred from circumstances. Bock v. Fellman Dry Goods Co., Tex.Com.App., 212 S.W. 635; Renshaw v. Countess, Tex.Civ.App., 289 S.W.2d 621.
“Under the record, and bearing in mind the defendants offered no evidence, we are of the opinion the trial court as trier of the facts could reasonably infer from all the circumstances that defendant Williams was negligent and that such negligence was a proximate cause.”

Taking the evidence introduced and the circumstances proven, we are of the opinion there was sufficient evidence to raise issues as to one or more of the 28 acts of negligence alleged, and that the judgment of the trial court should be sustained. Judgment of the trial court is affirmed as to all the above mentioned cases.


text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Frank M. TORREZ, Appellee.
    No. 3737.
    Court of Civil Appeals of Texas. Eastland.
    July 20, 1962.
    Rehearing Denied Sept. 7, 1962.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Scarborough, Black & Tarpley, Abilene, A. C. Cooke, Post, for appellee.
   WALTER, Justice.

This is a venue case. Frank M. Torrez filed suit against Maryland Casualty Company in Taylor County. Maryland Casualty Company filed a plea of privilege. Tor-rez filed a controverting affidavit and alleged Taylor County had venue under that portion of Subdivision 27 of Article 1995 of the Vernon’s Ann.Revised Civil Statutes of Texas which provides that foreign corporations may be sued “in any county where such company may have an agency or representative.” In a non-jury trial, the plea of privilege was overruled.

Maryland Casualty Company has appealed. It contends that portion of said Subdivision 27 relied upon by appellee is unconstitutional because venue could be maintained against a foreign corporation by merely proving that the company had an agency or a representative in such county, whereas, under Subdivision 23 of Article 1995, a cause of action must also be proved against a domestic corporation to maintain venue in such county. It contends this affords a wider venue against foreign corporations than is afforded against domestic corporations and is, therefore, unconstitutional in that it denies it the equal protection of the laws guaranteed by the 14th Amendment of the United States Constitution.

The Beaumont Court of Civil Appeals in the case of Fireman’s Fund Insurance Company v. McDaniel, 327 S.W.2d 358, (no writ history), held this portion of said subdivision 27 unconstitutional. The court said:

“We are of the opinion, however, that by reason of the conflicts existing between the two subdivisions, foreign corporations in Texas, of Fireman’s Fund’s status, are deprived of their constitutional rights to equal laws, equally administered. * * * We accordingly hold Sub. 27 of Art. 1995, Vernon’s Ann.Civil Statutes of Texas, as amended, to be unconstitutional under the 14th Amendment to the United States Constitution as it relates to the venue of suits against foreign corporations of Fireman’s Fund’s status to the extent that it conflicts with the provisions of Sub. 23 of Art. 1995, as amended, by Acts 1943, 48 Leg.”

We have reached the conclusion that the decision in Fireman’s Fund Insurance Company v. McDaniel, (supra), is in point and controlling in the instant case.

The judgment of the trial court is reversed and remanded with instructions to transfer the case to Lubbock County.


text:
    In the Matter of Marcus GOODWIN, Petitioner.
    No. 49431.
    Supreme Court of Missouri, En Banc.
    June 18, 1962.
    Rehearing Denied July 16, 1962.
    Mortimer A. Rosecan, St. Louis, Orville Richardson, St. Louis, of counsel, for petitioner.
    Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for habeas corpus filed by Marcus Goodwin on March 21, 1962, was heard by the Court en Banc on March 29, 1962. The Petitioner Marcus Goodwin appeared in person and by his attorney, Mortimer A. Rosecan. Respondent E. V. Nash, Warden of the Missouri State Penitentiary, was represented by Howard L. McFadden, an Assistant Attorney General. Evidence was heard and the Petitioner was given five days in which to file a brief. Respondent was given five days thereafter in which to answer the Petitioner’s brief. Petitioner filed his brief on April 9, 1962, and on April 19, 1962, respondent Warden Nash filed a brief. Petitioner was granted time to file a reply brief which was filed on May 1, 1962.

After due consideration of the evidence and the briefs, the Court finds that the Petitioner Marcus Goodwin was represented by counsel at the trial of his case in the Circuit Court of Jackson County, Missouri; that the attorney, Lee Vertís Swinton who represented Petitioner at the trial, is an able lawyer who had had previous experience in the trial of criminal cases, including the defense of persons charged with murder; and that trial counsel conducted the defense intelligently and with discrimination. The Court further finds that neither the trial evidence nor the evidence heard in this habeas corpus proceeding has convinced the Court that Petitioner was insane at the time he signed the statement or confession given to police officers or at the time of trial, or that he was thereby deprived of a fair trial or of due process.

Evidence which counsel did not discover and which it is claimed should have been discovered and presented to the trial jury was introduced in the record on this, the habeas corpus, hearing. Reviewing this evidence, we find that while portions thereof may have been favorable to the defendant other portions directly connected with the favorable evidence were very detrimental to the defendant. It is doubtful if that evidence would have aided the defendant.

In determining the question of whether a defendant was adequately represented by counsel, the situation should be considered as of the time the attorney must act and not in retrospect. State v. Turner, Sup., 353 S.W.2d 602, l. c. 605 (9-10). In 23 C.J.S. Criminal Law § 982(8), p. 969, the applicable rule is thus stated: “Whether or not accused has been afforded adequate and effective assistance of counsel must be determined from the facts of the case.” Numerous cases are there cited in support of the rule. On pages 975 and 976 of the same section, it is further stated that “Counsel for accused is vested with broad latitude in the conduct of the defense and he is not to be adjudged incompetent and his client deemed denied effective assistance of counsel by reason of the commission of what, in retrospect, appear to be errors of judgment. Mere errors, omissions, or mistakes by counsel do not establish a lack of effective representation by counsel. Trial strategy, even though unsuccessful, is an inadequate basis for an attack on the competency of counsel, and this rule has been applied where counsel refrained from cross-examination or from calling certain witnesses, or where counsel decided that accused should not take the stand.”

Petitioner was heard on appeal from his conviction. After the conviction was affirmed (Sup., 352 S.W.2d 614), the Governor of this State commuted the death penalty to life imprisonment.

Considering all of the matters presented, we rule that Petitioner is not entitled to relief and the writ of habeas corpus is hereby denied.


author: STONE, Judge.

text:
    A. J. ARNOLD, Plaintiff-Appellant, v. Opal FISHER, Defendant-Respondent.
    No. 8085.
    Springfield Court of Appeals. Missouri.
    Aug. 18, 1962.
    Motions for Rehearing or to Transfer Overruled Sept. 11, 1962.

      Douglas & Douglas, Neosho, for plaintiff-appellant.
    Ruyle & Henry, Neosho, for defendant-respondent.
   STONE, Judge.

In this jury-tried action for damages in the sum of $15,000 on account of injuries alleged to have resulted from a vehicular collision, plaintiff appeals from an adverse judgment entered upon a unanimous jury verdict for defendant. About 7:30 A.M. on February 25, 1961, “a cold, frosty morning,”' A. J. Arnold, plaintiff herein, was riding in a 1958 Mercury sedan, owned by his son Bobby Lee (not then in the automobile), and being driven by his son Darrell, eighteen years of age. The Arnolds were proceeding in an easterly direction on U. S. Highway 60, which has a two-lane blacktop' roadway approximately 24 feet in width, en route from the Arnold farm home near Seneca to Neosho where plaintiff was employed, regularly and Darrell intended to seek employment. After traveling about one mile-on Highway 60, “going upgrade all the time,” at a speed estimated by both plaintiff and Darrell at 30 to 35 miles per hour, the-right front fender of the eastbound Mercury ran into the left rear fender of a 1952' Ford automobile, also headed toward the east but then standing motionless, in which Mrs. Opal Fisher, defendant herein, had' left her nearby farm home a very few minutes previously, en route to her regular employment in Neosho. Of the position of the-Fisher Ford at the time of collision, we shall treat shortly.

Due to weather conditions, the windshields and windows of automobiles left in' the open overnight (as both the Arnold Mercury and the Fisher Ford had been) were-covered with frost in the early morning. With respect to the Arnold Mercury, plaintiff and his son Darrell testified that they had cleaned the windshield and rear window before they started that morning and that the windshield remained clear thereafter.. With respect to the Fisher Ford, defendant and her husband said that, while she had' finished dressing he had started the motor, warmed up the automobile, turned on the defroster, and “cleaned the frost off the windshield,” and that, when defendant left the Fisher farm home, the windshield was clear and both the heater and the defroster were-operating. However, when defendant turned from the Fisher driveway to the east onto Highway 60 and “the sun hit the windshield * * * it went to frosting over.”' Defendant drove “real slow” but the windshield “just kept covering.” In her lan guage, “I drove pretty near to the top of the hill; I was trying to make it to Cook’s (the next) driveway but I couldn’t make it that far because I couldn’t see to get there.” So, she stopped.

Defendant fixed the point where she stopped as even with a clump of small trees on the south side of the highway, and defendant’s witness Edsell, a civil engineer who subsequently made measurements and prepared a plat received in evidence, located that point as being approximately 6S0 feet east of the driveway (hereinafter referred to as the Fisher driveway), from which defendant had turned onto Highway 60. Upon trial, plaintiff testified that the collision had occurred “somewhere between 450 and 500 feet” east of the Fisher driveway. His pretrial deposition estimate of that same distance had been about 150 feet.

Defendant’s evidence was to the effect that she had been unable to pull completely off the blacktop, because the south shoulder of Highway 60, at and near the point of accident, was not as wide as an ordinary automobile and fell off sharply into a deep ditch. She frankly admitted that, when she stopped, the left wheels of the Fisher Ford were “about 18 or 20 inches” north of the south edge of the blacktop, but she insisted that “I pulled over as far as I could” — “on the south side of the highway as far as I could get over.” Plaintiff’s evidence was to the effect that the south shoulder was of sufficient width to permit the parking of an automobile completely off the blacktop, but that the Fisher Ford was entirely on the blacktop with its left wheels about 2 feet south of the center line. In this connection, we note that, with the record affirmatively showing the width of the Fisher Ford as 6 feet 2 inches, Darrell also thought that the right wheels of the Fisher Ford were “within a foot” of the south edge of the 24-foot blacktop.

Regardless of the precise position of the Fisher Ford, defendant had turned off the ignition, had alighted from the automobile, and was “scraping real fast” on the windshield with a razor blade carried for that purpose, when she saw the eastbound Arnold Mercury “coming around the curve” west of the Fisher driveway. As to the unobstructed sight distance to the west, i. e., the distance at which the Fisher Ford could have been seen by an eastbound motorist such as Darrell, (a) defendant’s witness Lett, eastbound on Highway 60 and the first motorist to stop at the scene of accident, estimated “around 1,000 feet,” (b) defendant’s husband estimated “around 900 feet,” (c) defendant’s witness Edsell after observation and measurement stated 800 to 850 feet, and (d) both plaintiff and his son Darrell thought about 550 feet. But whatever the distance at which the Fisher Ford could have been seen, plaintiff and his son (in precise accord on this detail also) agreed that neither did see the Ford until it was “about 20 feet” distant; and, with their testimony still following the same track, both said that, although Darrell swerved to his left, he could not go around the Fisher Ford because of an approaching westbound truck which they sighted about the same time they saw the Ford and which passed “right before” the collision. Defendant saw no such westbound vehicle. Admittedly, no truck stopped. In any event, Darrell never applied the brakes on the Arnold Mercury and its right front fender ran into the left rear fender of the Fisher Ford with the Mercury still traveling at undiminished speed estimated by plaintiff at “between 30 and 35 miles” per hour. As a result of the impact, the Ford was knocked forward or to the east about 20 feet and the Mercury “bounced back” and “nosed right down in the (south) ditch.”

The only explanation or excuse offered by plaintiff or his son Darrell for their admitted failure to see the Fisher Ford until they were within 20 feet of it was that they had been blinded by the rising run or, as Darrell put it while seeking more innocuous language after plaintiff’s counsel objected to use of the term “blinded,” “it (the sun) didn’t blind me; it just obstructed my vision for awhile.” Darrell offered considerable testimony on this subject, not all of it easily reconcilable. His first statement in this evidentiary area was that the sun had been in his eyes “just momentarily, just when you came around that curve” west of the Fisher driveway. (All emphasis herein is ours.) When asked later whether anything had prevented him from seeing the Fisher Ford as he had rounded that curve, Darrell’s response was, “well, the sun would be the only thing; I could see for a good distance, but I wasn’t expecting her to be up there.” But, to the second succeeding question as to whether “the sun blinded you * * * as you came around the curve,” Darrell agreed, “yes, where I couldn’t see a good distance.” Although stating that he could see farther than 20 feet, he readily agreed that he had not seen the Fisher Ford until “about 20 feet” from it, repeating that “I wasn’t looking for her because I wasn’t expecting her to be there.” Further along in his cross-examination, Darrell insisted that he “wasn’t blinded” as he rounded the curve west of the Fisher driveway and that he “could see all right from the time (he) came around the curve up to the driveway”; but, “when I hit the driveway, the sun hit my eyes about the same time.” Plaintiff said that the sun “blinds anybody going up the hill early of a morning” but immediately denied that it had blinded him. “I could see all the time”— “yes, about 30 feet ahead” of the Mercury.

Plaintiff’s witness Reed eastbound on Highway 60, who stopped at the accident scene, said that he was “not completely” blinded as he rounded the curve west of the Fisher driveway, but that “you couldn’t see as good as you could (on) an ordinary day.” According to Reed, he saw the damaged automobiles when he was “maybe a hundred feet” distant. Defendant’s witness Beavers also eastbound, who had entered Highway 60 from his home driveway only some 300 feet west of the Fisher driveway, had experienced the same difficulty as defendant in that the windshield of the Beavers automobile, although clear when he left home, had “frosted over pretty well” by the time he reached the Fisher driveway, but nevertheless Beavers said that “as soon as I rounded that curve I could see something up there, some cars.” Defendant’s witness Lett, likewise eastbound on the highway en route from Wyandotte, Oklahoma, to Springfield, said that there was “some sun through the windshield” but that “it wasn’t so bright but what you could see the wreck” rounding the curve west of the Fisher driveway.

The only alleged negligence, on which the case was submitted by plaintiff’s sole verdict-directing instruction 1, was “that the defendant failed to exercise the highest degree of care in that defendant stopped her automobile on the traveled portion of said highway and negligently left said automobile stopped on said highway in front of oncoming traffic.” Upon appeal, plaintiff’s principal point is that the trial court erred in giving defendant’s sole cause instructions F and G. The primary reason assigned in subpoint (a) is that, since “at least a part of defendant’s car was left stopped on the traveled portion of the highway, * * * this is not a true sole cause situation because it could not be said that defendant was free and clear of all negligence on her part.” Or, as the same sub-point is presented in plaintiff’s argument, “all reasonable persons would have to say that defendant was at least guilty of concurring negligence on her part and that under these facts defendant could not be cleared of contributory (sic) negligence to the extent that a sole cause situation existed.”

The gist and substance of this sub-point is that, regardless of whether Darrell (the driver of the Arnold Mercury in which plaintiff was riding) was negligent, defendant was guilty of negligence as a matter of law and thus a sole cause instruction should not have been given. Wilkins v. Stuecken, 359 Mo. 1047, 1052, 225 S.W. 2d 131, 134(3); Wilson v. Toliver, 365 Mo. 640, 651, 285 S.W.2d 575, 581-582(9). However, plaintiff offered no motion for a directed verdict [Rule 72.01; Section 510.-280] and sought no peremptory instruction; but, on the contrary, plaintiff treated defendant’s negligence as an issue for determination by the jury and submitted that issue by plaintiff’s instruction 1. In these circumstances, plaintiff did not preserve for appellate review, and is precluded from urging here, the assignment that the trial court erred in giving defendant’s sole cause instructions because (so plaintiff asserts) defendant was guilty of negligence as a matter of law. This was the specific holding in Warren v. Weaver, Mo. App., 343 S.W.2d 682, 684-685(3). See Robbins v. Robbins, Mo., 328 S.W.2d 552, 555(1), and Heideman v. Lorenz, Mo., 349 S.W.2d 230.

Although the foregoing is dis-positive of this subpoint, it may not be inappropriate to add that, if plaintiff’s contention were to be ruled on its merits, we would be impelled to deny it. In determining whether the facts justified the giving of a sole cause instruction, it would be our duty to view the evidence in the light most favorable to defendant and to give her the benefit of all favorable inferences fairly and reasonably deducible therefrom. Hartley v. Smith, Mo., 354 S.W.2d 854, 857(2); Ketcham v. Thomas, Mo., 283 S.W.2d 642, 650; Hopkins v. Highland Dairy Farms Co., 348 Mo. 1158, 159 S.W.2d 254, 255(1). If, as defendant positively testified, the windshield of the Fisher Ford was clear when she left home but, as soon as she turned onto the highway and “the sun hit the windshield * * * it went to frosting over” and “just kept covering” (and the testimony of witness Beavers tended to confirm this), and if, although she tried “to make it” to the next driveway, “I couldn’t make it that far because I couldn’t see to get there,” she had a duty, with her vision thus materially impaired, to exercise care commensurate with the existing situation [Duffy v. Cortesi, 2 Ill.2d 511, 119 N.E.2d 241, 245; Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 229]; and if, unable to see ahead, she nevertheless had proceeded blindly, she would have irresponsibly invited disaster to herself and others and recklessly hazarded the risk of being branded as negligent, perhaps as a matter of law. See Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 471(8), and cases collected in footnote 6.

Defendant definitely stated that “I pulled over as far as I could” — “on the south side of the highway as far as I could get over,” thus placing the left wheels of the Fisher Ford only 18 or 20 inches north of the south edge of the blacktop' and leaving more than 22 feet of the blacktop roadway unobstructed, of which more than 10 feet (and thus considerably more than the width of an ordinary automobile such as the Arnold Mercury) was between the left side of the Fisher Ford and the center line of the blacktop. It was what we colloquially refer to as “broad daylight” and the unobstructed sight distance to the rear, or to the west, was not less than 800 to 850 feet. Mindful that, under defendant’s evidence, the Fisher Ford was placed with its right side “as near the right-hand side of the highway as practicable” [Section 304.015, subd. 1] and that the only negligence submitted was “that defendant stopped her automobile on the traveled portion of said highway and negligently left said automobile stopped on said highway in front of oncoming traffic,” we could not say, upon the record presented, that, in stopping briefly for the reason and at the place she did, defendant was negligent as a matter of law. See again Phillips v. Stockman, supra.

The only case, to which plaintiff refers in his argument, is Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253, a split decision with respect to which it will suffice to comment as did our Supreme Court in Lynn v. Kern, Mo., 323 S.W.2d 726, 730: “There was a strong dissent. Whether the Beahan case is right or wrong it does not present the situation we have here. The defendant did not submit that the sole cause of plaintiff’s injuries was (his) own negligence.” Other cases cited by plaintiff (but not referred to in argument) do not support the assignment of error in subpoint (a). It may be observed in passing that defendant’s sole cause instructions in the instant case do not exhibit the manifest frailties of the criticized instructions in plaintiff’s cited cases, e. g., cryptic submission on the hypothesis of abstractions only [Ketcham v. Thomas, supra, 283 S.W.2d loc. cit. 651], or failure to require a finding that the negligence of plaintiff’s host driver was the sole cause of the collision and plaintiff’s injuries [Happy v. Blanton, Mo., 303 S.W.2d 633, 636-637], or failure to require a finding excluding or negativing defendant’s negligence as submitted in other instructions. Dulley v. Berkley, Mo., 304 S.W.2d 878, 883-884.

In subpoint (b), plaintiff complains that defendant’s sole cause instructions F and G were erroneous “because they fail to sufficiently hypothese the factual situation in regard to defendants evidence and to properly state all factual elements necessary for a sole cause instruction.” This subpoint is not developed, in fact is not even mentioned, in the argument section of the brief. However, in a second sentence in the subpoint, plaintiff states that “it was a disputed question as to the exact location of defendants automobile on the traveled portion of the highway,” so (that being the only “factual element” mentioned) the gist and import of this complaint is that the sole cause instructions did not require a finding “as to the exact location of defendants automobile on the traveled portion of the highway.” True, a finding of “exact location * * * on the traveled portion of the highway” was not required in the sole cause instructions. But the initial finding required in both such instructions was that “defendant stopped her vehicle upon U. S. Highway 60 at a point where the view from the west along said highway was unobstructed for a distance of approximately 700 to 800 feet”; and, as we have noted, there was ample evidence from which the jury reasonably might have so found.

It is an altogether appropriate and adequate answer to plaintiff’s complaint to point out that, in his sole verdict-directing instruction 1, he was content to submit in the broadest of terms, i. e., “that defendant stopped her automobile on the traveled portion of said highway,” which certainly did not require a finding as to “the exact location of defendants automobile on the traveled portion of the highway” or, for that matter, even a more general finding as to whether it was entirely on the blacktop as plaintiff said or only partially thereon as defendant insisted. Regardless of the sufficiency of the hypothesization as to the location of defendant’s automobile in the sole cause instructions (concerning which we need not express an opinion), plaintiff will not be heard to complain where his verdict-directing instruction submitted the same “factual element” in language similarly general and no more specific.

Furthermore, in a case such as this which was submitted on a single charge of primary negligence and in which the facts were simple, “easily understood and within the common knowledge of the members of the jury” [Carson v. Evans, 351 Mo. 376, 381, 173 S.W.2d 30, 32; Kelly v. Kansas City Public Service Co., Mo., 335 S.W.2d 159, 164], recent holdings of our Supreme Court sound the timely warning that, in the absence of plainly confusing or misleading instructions manifestly infringing substantial rights in a demonstrably substantial manner, there is no error “materially affecting the merits of the action” [Rule 83.13(b); Section 512.160(2)] and the granting of a new trial is neither required nor justified. Kelly, supra, 335 S.W. 2d loc. cit. 164(8); Stewart v. Boring, Mo., 312 S.W.2d 131, 134; McGhee v. Jones, Mo., 336 S.W.2d 722, 726. We may say with respect to instructions F and G in the case at bar, as did the Supreme Court concerning a sole cause instruction assailed in Happy v. Blanton, supra, 303 S.W.2d loc. cit. 640: “There was no misdirection by the instruction (s), and we do not see how the jury could have been confused by (them). In the final analysis these are the two basic tests which determine the sufficiency of any instruction.” Subpoint (b) is disallowed.

In subpoint (c), plaintiff asserts that the trial court erred in giving “two sole cause instructions F and G submitting the same theory along with a contributory negligence instruction D.” It is a fundamental and time-honored principle of appellate procedure that a trial court must be afforded an opportunity to review and correct its own errors before the aid of an appellate court may be invoked. State ex rel. Morton v. Cave, 359 Mo. 72, 220 S.W.2d 45, 49(4); Brown v. Thomas, Mo.App., 316 S.W.2d 234, 236(3); Gover v. Cleveland, Mo.App., 299 S.W.2d 239, 243(12). Thus, the plain requirement of Rule 79.03 [see Section 512.160(1)] that “(a)negations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial” is held to be mandatory [C & O Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 738(1); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5) ]; and excepting only those questions particularized and enumerated in Rule 79.03 (none of which are applicable here), a party is precluded from urging on a civil appeal any allegation of error not presented to the trial court in a motion for new trial. Mayor v. Mayor, Mo., 349 S.W.2d 60, 62-63(2); State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689, 695(8); Robbins v. Robbins, supra, 328 S.W.2d loc. cit. 555(4, 5); Fruit Supply Co. v. Chicago, B. & Q. R. Co., Mo.App., 119 S.W.2d 1010, 1011(4). Referring particularly to instructions, Rules 79.03 and 70.02 permit specific objections to instructions to be made wholly before submission to the jury, wholly in the motion for new trial, or partly before submission and partly in the motion for new trial [Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711(1)], but an alleged error not presented by specific objection at one place or the other is not preserved for appellate review, O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904, 908(8); Wolff v. Richardson, Mo.App., 358 S.W.2d 112, 116(5). See also Adair v. Cloud, Mo., 354 S.W.2d 866, 871 (5); Hartz v. Heimos, Mo., 352 S.W.2d 596, 602(5). Not having been presented by specific objection either at the time of trial or in the motion for new trial, the complaint which instant plaintiff now asserts for the first time in subpoint (c) will not be considered.

Finally, plaintiff now asserts that the trial court erred “in permitting defendant to read the deposition of M. E. Lett because Mr. Lett had been subpoened to be present and the court ruled the subpoena to be without force because it was issued in blank when as a matter of fact a subpoena issued in blank is good.” Careful examination of the record reveals no ruling by the trial court that the subpoena, to which counsel refer, was “without force” or invalid. We do not presume error on the part of the trial court [Hardy v. McNary, Mo., 351 S.W.2d 17, 20(2, 3); Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190, 197 (10) ], and we will not indulge in speculation or implication to reach a labored conclusion that he erred. Osby v. Tarlton, 336 Mo. 1240, 1253, 85 S.W.2d 27, 34(6). Furthermore, the alleged error averred with particularity in plaintiff’s motion for new trial was that: “The court erred in permitting the defendant to read the deposition of M. E. Lett in evidence because Mr. Lett had been subpoened in Newton County, Missouri, and was available under the subpoena as a witness and the record shows a valid subpoena issued for Mr. Lett and properly served. Plaintiff had a right to require the defendant to put the witness on the stand instead of using the deposition.” We observe parenthetically that nothing in the transcript indicates that Lett “was available under the subpoena as a witness.” In any event, the same fundamental and time-honored principle of appellate procedure noted in our discussion of subpoint (c), supra, forbids our consideration of the point now urged which is radically different from that specifically averred in the motion for new trial. See Grapette Co. v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 37, and cases there cited.

The judgment should be and is affirmed.

McDOWELL, J., concurs.

RUARE, P. J., not sitting.

      . All references to rulés are to the Missouri Rules of Civil Procedure, V.A.M.R., and all references to statutes are to RSMo 1959, Y.A.M.S.

      . Although some of defendant’s quoted testimony was conclusionary in nature and might have been excluded upon timely objection or motion to strike, its probative worth and effect were for the jury in the absence of any such objection or motion. Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42(1); Mayne v. May Stern Furniture Co., Mo.App., 21 S.W.2d 211, 213(2); Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, 296(7), and cases collected in footnote 2.

      . Instruction F required additional findings (1) that Darrell, “in the exercise of the highest degree of care, saw or should have seen the defendant’s car where it was stopped on the highway approximately 700 to 800 feet ahead,” (b) that Darrell “failed to exercise the highest degree of care * * * in that he negligently and carelessly failed to keep and maintain a reasonably careful and vigilant lookout for other vehicles upon the road,” (c) that “such conduct on his part was negligence,” (d) that “whatever injuries plaintiff received resulted solely from such negligence of the said Darrell Arnold,” and (e) “that defendant was not guilty of any negligence under other instructions given you herewith.” Instruction G required the same finding (a), followed by findings that Darrell “became blinded so that he could not see his way ahead, at a point when the defendant’s car was then approximately 600 to 650 feet ahead stopped on the highway” but that Darrell “after becoming blinded continued to drive his car while blinded for a distance of approximately 600 to 650 feet to the point of collision at a speed which was high and excessive under the circumstances,” and then findings similar to (c), (d) and (e), supra.

      . Terrell v. Missouri-I&nsas-Texas R. Co., Mo., 327 S.W.2d 230, 238-239(14); Stewart v. Boring, Mo., 312 S.W.2d 131, 133-134; Layton v. Palmer, Mo., 309 S.W.2d 501, 569-570(17), 66 A.L.R.2d 1242; Palmer v. Lasswell, Mo., 287 S.W.2d 822, 828(5); Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 228 S.W.2d 750, 755(5); Roeslein v. Chicago & E. I. R. Co., Mo., 214 S.W.2d 13, 18(6); Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. See particularly Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 377, 188 S.W.2d 538, 547(15). And, see generally the multitude of cases collected in West’s Missouri Digest, Appeal and Error, <®=>SS2(12).


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Wade RAYBOURN et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.
    Rehearing Denied Sept. 21, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Paul E. Hunley, Dept, of Highways, Frankfort, for appellant.
    H. R. Wilhoit, Grayson, for appellees.
   WADDILL, Commissioner.

In a proceeding by the Commonwealth to obtain right of way for the construction of a new highway #60 east of the city of Olive Hill, the landowners, Wade Raybourn and his wife, were awarded $1,500 in the county court for their .93 acre of land taken. They appealed to the circuit court where, upon a jury trial, they were awarded $5,000 for the land and $32,500 for damages to the remainder. From a judgment entered pursuant to this award, the Commonwealth has appealed.

During 1951 the Raybourns erected a motel east of Olive Hill on a .38 acre tract of land they held under lease which abuts old highway #60 and lies south of it. They acquired title to this land by deed dated December 27, 1955. On February 28, 1957, they obtained a deed to a 1.72-acre tract which is located south of and contiguous to their first tract. The land condemned by the Commonwealth lies entirely within this second tract of land.

The Commonwealth urges as error the trial court’s refusal to limit the proof of the Raybourns’ damages to the second tract alone. Before we can reach the merits of this contention, we must consider the correctness of the trial court’s interpretation of the pleadings. The petition specifically described the land sought to be condemned so as to locate it solely within the boundaries of the tract acquired by the Raybourns in 1957. Following this delineation the property being condemned was further referred to as being a portion of the two tracts the Raybourns acquired in 1955 and 1957 by the heretofore mentioned deeds. The trial court held in effect that, since the petition contained this reference to the two deeds, the Commonwealth had conceded that the two tracts constitute a single unit of land. This ruling was erroneous because the statement in the petition was obviously nothing more than a reference to a source of title and, being such, does not preclude the Commonwealth from introducing proof to show why the two tracts should not be regarded as a single unit of land for the purpose of determining damages.

Ordinarily, two or more parcels of land constitute one tract for the purpose of assessing damages for injury to the portion not taken when they are physically contiguous and are united in use and ownership. Barnes v. North Carolina State Highway Comm., 250 N.C. 378, 109 S.E.2d 219; 6 A.L.R.2d 1197. However, the Commonwealth offered evidence showing by way of avowal that the Raybourns had purchased the second tract after they had knowledge that the new highway would be constructed through that land. The question arises whether, under these circumstances, the Raybourns are entitled to recover damages to the remainder of both tracts treated as one unit of land.

We answer the question in the negative because by the simple expedient of purchasing the small tract through which they knew the highway would be relocated, the Raybourns were able to recover not only $5,000 for the right of way through their 1.72 acres of farm land but also $32,-500, primarily as resulting damages to their .38 acre upon which their motel is situated. The facts show that old highway #60 will not be physically changed but will remain open to public travel, and the Raybourns will continue to have the same access to it that they had prior to the construction of the new highway. The only possible damage resulting to the motel property is the loss of the potential to exploit commercially the express traffic which has been diverted from old highway #60 to the new highway. This is not a compen-sable element of loss in a condemnation proceeding. City of Newport, Mun. Housing Comm. v. Turner Advertising, Inc., Ky., 334 S.W.2d 767.

We therefore hold that when it has been proven that the owner of property, on which land is being taken by the power of eminent domain, has purchased such property with knowledge of that fact, he is not entitled, for the purpose of assessing damages, to have it considered a part of other property previously acquired by him. Under this determination it would serve no useful purpose to pass upon other questions raised by appellant and they are expressly reserved.

Judgment reversed.


author: CLAY, Commissioner.

text:
    Elmer Lee BROWN, Appellant, v. Angie VANHOOK, Appellee.
    Court of Appeals of Kentucky.
    April 20, 1962.
    Rehearing Denied Sept. 21, 1962.

      Hamm, Taylor & Milby, Robert L. Mil-by, London, John G. Prather, Somerset, for appellant.
    Russell Jones, Fritz Krueger, Somerset, for appellee.
   CLAY, Commissioner.

The appellee plaintiff recovered approximately $5,000 for personal injuries when she was struck by defendant’s truck while crossing a highway. The record discloses a clear case of contributory negligence as a matter of law.

Plaintiff lives on the west side of an 18 foot paved highway in the country, which runs generally north and south. She alighted from an automobile in which she had been riding when it stopped opposite her home on the east side of the highway. As the car drove off (in a northward direction), plaintiff started across the highway. She testified that when she was within two feet of the center line she looked north and saw defendant’s truck approaching; at that time it was over 100 yards away and travelling at a speed of from 50 to 60 miles an hour. After making this observation, she continued walking across the road and paid no further attention to the approaching vehicle. She walked about seven feet and collided with the left side of the truck behind the cab door. (This story is so odd as to be startling, but it is plaintiff’s version.)

Just prior to the impact the defendant had observed the plaintiff and drove into the ditch on his right in an attempt to avoid her. The truck was partially off the roadway on its right at the time plaintiff was struck.

With difficulty we will assume some negligence on the part of defendant. Did the plaintiff exercise due, or any, care? She says she had observed the approaching vehicle and then deliberately discontinued watching it. She not only failed to keep out of its way but walked blindly into it. Reasonable minds could only conclude that plaintiff’s negligence was the principal contributing, if not the sole cause of this accident. Defendant was entitled to a directed verdict. See Tarter v. Wiggington’s Adm’x, 310 Ky. 393, 220 S.W.2d 829; Kelley v. Reece, Ky., 273 S.W.2d 369.

The issue of last clear chance was submitted to the jury but it has no application here. The defendant did not have a last clear chance. If anyone had it, it was the plaintiff. See Kentucky & West Virginia Power Co. v. Lawson, Ky., 240 S.W.2d 843; Saddler v. Parham, Ky., 249 S.W.2d 945; Johnson v. Morris’ Adm’x, Ky., 282 S.W.2d 835; Whitesides v. Reed, Ky., 306 S.W.2d 249.

The judgment is reversed with directions to enter judgment for the defendant.


author: MONTGOMERY, Judge.

text:
    F. L. TUNSTALL, Appellant, v. BLUE DIAMOND COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.
    Rehearing Denied Sept. 21, 1962.
    H. B. Noble, C. A. Noble, Jr., Hazard, for appellant.
    Maxwell P. Barret, Reeves, Barret & Cooper, Hazard, for appellees.
   MONTGOMERY, Judge.

The sole issue on the appeal is whether there was substantive evidence to support the holding of the Workmen’s Compensation Board that F. L. Tunstall had failed to give due and timely notice to Blue Diamond Coal Company of his alleged occupational disease. The circuit court judgment affirmed a denial of benefits by the Board and its referee.

Appellant had worked for Blue Diamond about fifteen years. His employment was terminated on March 29, 1957. He gave notice on November 11, 1957, that he had an occupational disease, contact dermatitis.

The first indication of the disease was in February 1955. Appellant’s skin became red and itchy, with a breaking-out about the eyes and ears. He obtained treatment from local doctors which provided temporary relief. In May 1956, he was hospitalized for four days in Lexington. An allergy survey was made. At that time the skin on his neck, sides of his face and exposed portion of his chest, and his eyes and ears turned red and itched severely. The condition was relieved but recurred in a week or ten days after he returned to work.

On December 31, 1956, a Doctor Betty Owens examined appellant. At that time, she said, he had “eczematoid eruption on the eyelids, neck, ears, legs and body just below the waist.” A patch test was made from which Dr. Owens determined on January 4, 1957, that appellant had “positive relations to rubber and synthetic rubber sponge.” She questioned appellant closely about his occupation and discovered that he worked with rubber-coated hose cables and tires in the mine. He was instructed to get samples of rubber from the mine for a patch test. Dr. Owens conducted a further test, using the mine samples of rubber, on June 28, 1957. She diagnosed his condition as contact dermatitis “due to some object at work, mostly rubber.” From the beginning, the skin condition would “flare up” when appellant went back to work.

The Board concluded “that certainly in January, 1957, the plaintiff must have known that he had the occupational disease, but even assuming he did not, certainly in June 1957 he knew it” and that he “did not give notice as soon as practicable within the meaning of the Act.” No explanation was given by appellant for his failure to make known his condition prior to November 11, 1957. As early as May 1956, appellant was disabled by his condition to the extent that he had to be hospitalized and was unable to work for a period thereafter.

KRS 342.316(2) controls the notice to be given when the disability is from an occupational disease. The notice is not required to be given until the employee has a disability from an occupational disease which impairs his capacity to perform his work and the employee knows, or should know, by the exercise of reasonable care and diligence that he is suffering from the disease. Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167. The notice must be given within a reasonable time under the circumstances of the particular case. Peabody Coal Co. v. Harp, Ky., 351 S.W.2d 170; Harlan Fuel Co. v. Burkhart, Ky., 296 S.W.2d 722.

The Board sustained the referee’s finding and held that the Blue Diamond Coal Company did not have due and timely notice. If there is substantive evidence to support such finding of the Board, it will not be disturbed. Nashville Coal Company v. Epley, Ky., 350 S.W.2d 463; Elk Horn Coal Corporation v. Isaac, Ky., 284 S.W.2d 88; Tyler-Couch Construction Company v. Elmore, Ky., 264 S.W.2d 56. There is substantive evidence to sustain the Board’s finding.

Appellant argues that the knowledge of his condition had by certain of Blue Diamond’s employees was imputed to it. See Osborne Mining Company v. Davidson, Ky., 339 S.W.2d 626. This evidence was before the Board and was rejected in view of its finding.

Judgment affirmed.


text:
    Robert HILL, Movant, v. COMMONWEALTH of Kentucky, Opposed.
    Court of Appeals of Kentucky.
    June 1, 1962.
    Rehearing Denied Sept 21, 1962.
    Damon A. Vaughn, Dixon, for appellant.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

This case is before us on motion for an appeal of a conviction for possession of alcoholic beverages for sale in dry territory, for which the movant, Robert Hill, was fined $100 and sentenced to sixty days in jail.

After a careful review of the record, the motion for an appeal is overruled and the judgment is affirmed.


author: STEWART, Chief Justice.

text:
    INTERNATIONAL HARVESTER COMPANY, Inc., et al., Appellants, v. Grover HUBER, Adm’r of Estate of R. G. Stith, and Edward Mackey, Adm’r of Estate of W. L. Long, Appellees. (Consolidated cases.)
    Court of Appeals of Kentucky.
    June 1, 1962.
    Rehearing Denied Sept. 21, 1962.
    Ben T. Cooper, Charles W. Morris, Louisville, for appellants.
    M. Joseph Schmitt, Allen Schmitt, Louisville, for appellee Huber.
    Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville for appellee Mackey.
   STEWART, Chief Justice.

These two actions arose out of an automobile accident which caused the deaths of Louisville police officers Raymond Stith and William L. Long, aged 50 and 29, respectively, at the time of their deaths. The cases were tried together. The estate of Stith recovered a judgment of $14,600 against International Harvester Company, Inc., and its truck driver, Charles Kim-brough; the estate of Long recovered a judgment of $36,600 against the same parties.

On this appeal, appellants argue that the lower court erroneously failed to give a tendered instruction and also erred in giving Instruction 1(c). These grounds will be discussed in the order presented.

The instruction offered by appellants, if given, would have told the jury it was the duty of the driver of the Stith car, William L. Long, “to have burning on said automobile two headlights so aimed and of such intensity as to reveal persons and vehicles at a distance of at least 350 feet ahead under ordinary atmospheric conditions.”

This instruction was predicated upon the assumption that there was a failure upon the part of the above driver to comply with the terms and conditions of KRS 189.040(3) (a), the provisions of which were embodied in the instruction. Ap-pellees maintain the trial court properly refused to give the instruction for the reason that no evidence was introduced which showed the headlights on the Stith car were unlit.

Upon the occasion of the accident Long was driving Stith’s automobile around 4:00 o’clock in the morning with Stith as a passenger. They were heading south on Crittenden Drive in the City of Louisville in the right-hand lane, and a police car with Ernest T. Whittus under the wheel was following in the same lane about 40 or 50 feet behind. The latter was also a police officer.

At the same time, Charles Kimbrough was driving the dump truck of his employer, International Harvester Company, also southbound in the right-hand lane and in front of the Stith car. When the truck was 40 or 50 feet from an intersection at which the truck driver intended to turn right, it was struck in the rear by the Stith car. The car was demolished and both Stith and Long were killed.

There was no other traffic on the street at the time. Appellants’ evidence was that the truck lights were burning, its speed was 15 to 20 miles per hour, and its turn-signal flasher was illuminated. The truck was loaded with ashes and the impact knocked it forward, broke its crankshaft, sheared the spring shackles and broke some wires. The street and intersection were illuminated by street lights and unusually bright lights lit up a nearby gateway to the International Harvester plant.

Appellees’ evidence was that the place where the collision occurred was very dark; that the two outside directional lights, the stop light and the brake light with which the truck was equipped were extremely dirty, so that they were practically dimmed out; and that the truck was not furnished with clearance lights, as required by KRS 189.050(4).

In undertaking to establish that the Stith car did not have its headlights on, appellants rely upon the proof of Charles Kim-brough, the truck driver. However, a careful reading of his testimony does not produce one line of evidence that the headlights were off. When he was on the stand as a witness in chief, he stated he had no indication that any one was behind him prior to the time of the accident. On cross-examination, he said: “I didn’t think to look. See, I was in the proper lane, I had no cause to look behind me.” Later on, while being cross-examined, he repeated that he never looked behind him to ascertain if another motor vehicle was following him.

Nevertheless, appellants claim that this evidence of Kimbrough created a strong inference that the Stith car did not have its headlights lit at the time of the accident and therefore the instruction outlining the duty to have statutory lighting in the respect mentioned was necessary. We are of the opinion this testimony falls far short of creating such an inference.

On the other hand, there does exist evidence in this case which points up in a rather persuasive manner that the headlights were burning. Ernest T. Whittus, the police officer who had been traveling with the Stith car during its entire journey on this fateful night, testified he at one time was in front of the Stith car and he saw its headlights turned on in his rear-view mirror. A short time later he pulled behind the Stith car and followed it up to the moment of the collision, and from this position he observed its taillights were lit. He stated he therefore believed the headlights on the Stith car were on when it collided with the truck, as it is presumed to be common knowledge that taillights and headlights are on the same switch.

We conclude the evidence strongly tends to show the headlights on the Stith car were burning on the occasion of the accident. Furthermore, there is no proof in the record which in any wise indicates they were out. Consequently, no issue of fact was raised on this point, and it is our view the trial court correctly declined to give the requested instruction. See Smith v. Collins, Ky., 277 S.W.2d 38.

The next alleged error poses a question as to the propriety of an instruction which told the jury it was the duty of appellants to have clearance lights displayed on the truck as required by KRS 189.050(4). Instruction 1(c), about which complaint is made, outlined this duty. Although it is admitted the truck was not equipped in conformity with this statutory provision, it is argued that such an omission was not the proximate cause of the collision.

Any contention as to this instruction cannot be considered on this appeal for the reason that appellants failed, as required by CR 51, to state to the trial court their specific ground of objection. See Johnson v. Gaines, Ky., 313 S.W.2d 408.

Wherefore, the judgment is affirmed.


author: MILLIKEN, Judge.

text:
    W. C. BINGHAM et al., Appellants, v. Flannery BROOKS et al., etc., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.
    Rehearing Denied Sept. 21, 1962.
    H. M. Tye, Barbourville, for appellants.
    Lester L. Parrott, Pineville, H. M. Sutton, Corbin, Samuel H. Cole, Frankfort, for appellees.
   MILLIKEN, Judge.

Inability to agree on a means of paying for the funeral of elderly Kitty Brooks Bingham resulted in her devoted three adult children and surviving spouse precipitating this litigation, the record of which comprises nearly four hundred typewritten pages.

When T. C. Brooks died intestate in 1905, his children, Flannery Brooks and Tommie Brooks, became the owners of his one-half undivided interest in a tract of Knox County land subject to the dower interest of their mother, Kitty Brooks, who owned the remaining one-half interest in the land. Subsequently, Kitty Brooks married W. C. Bingham and one son, Evy Bingham, was born to this union. When all of her children were grown their mother attempted to partition the land as if she were the sole owner and in 1936 executed deeds of 50 acres to Flannery Brooks and 25 acres to Evy Bingham, respectively, and held the remaining approximately 50 acres for her daughter, Tommie Brooks Burger, who lived in Cincinnati, without the formality of conveyance. When Tommie’s stepfather, W. C. Bingham, offered her $500 in 1946 for her interest in the land, Tommie promptly executed a deed of general warranty to him and received the $500. Although Kitty’s husband, W. C. Bingham, signed his wife’s deeds to her children, Flannery and Evy, in 1936, his name did not appear in the granting clause or certification of acknowledgment in either deed. Nevertheless, Evy Bingham took possession of the 25 acres designated for him, farmed it, and has been in possession of it ever since. On the other hand, Flannery pocketed the deed his mother sent him, visited her often on trips from his home in Cincinnati, helped her financially over the intervening years knowing of her attempted division of the land and at no time raised an issue about it until 1955 when confronted by how and from what source his mother’s funeral was to be paid. By that time his stepfather, W. C. Bingham, who asserts no interest in the land, having conveyed the land he bought from Tommie Burger to his son Evy Bingham, apparently was financially unable to pay his wife’s funeral expenses and, although appointed administrator of her estate, failed to qualify because of inability to furnish bond. As a result of his failure to qualify, Etta McCarthy, sister of Kitty Brooks Bingham, then was appointed and qualified as admin-istratrix of the estate.

While he was the ostensible administrator of the estate, W. C. Bingham filed an action against Flannery Brooks and Tommie Burger for the recovery of a $200 note and $800 which he alleged they removed from a homemade money belt on the body of Kitty Bingham, and in the action obtained an attachment against Flannery’s interest in the land. Flannery and Tommie retaliated by enjoining W. C. Bingham and his son, Evy, from removing timber from the land. At this point, Etta McCarthy, as administratrix, intervened and sought sale of the land in order to obtain funds for' the payment of the funeral bill. It turned out that the funeral director had turned over the money belt to Tommie for safe keeping, and the bulk of its contents — • about $50 less minor and proper deductions-—was delivered to the administratrix. The trial court consolidated the actions for trial,, dismissed the attachment, canceled the various deeds and ordered the land sold for the payment of the funeral expenses. The cancellation of the deeds and order directing the sale of the land are at issue in this appeal; the Binghams claiming title to their portion by adverse possession and estoppel. The trial court based its action on the theory that Kitty’s action was fraudulent, that the deeds she gave were void, and that any deeds given by a cotenant prejudiced the other cotenants.

The 1936 deeds from Kitty Brooks Bing-ham to her sons, Flannery Brooks and Evy Bingham, for 50 acres and 25 acres, respectively, recite the receipt of $200 and $100 as the considerations therefor and were recorded. After obtaining the deed from Tommie Burger for $500 in 1946, W. C. Bingham, joined by his wife, Kitty Brooks Bingham, conveyed the property in 1949 to Evy Bingham and Kitty Brooks Bingham in consideration of the payment of taxes and love and affection, reserving to Kitty timber and mineral rights for life. In 1954, Kitty and Evy conveyed his original 1936 tract of 25 acres to Mae Bing-ham, Evy’s wife, apparently for the sole intended purpose of putting title in Mae’s name. Whether the recited considerations for these conveyances were actually received is not clear except Tommie Burger received $500 for her conveyance to W. C. Bingham. It is contended by the Binghams that the portions set out by Kitty Brooks Bingham in 1936 were laid out on the land and that the various division lines were shown to Flannery and Tommie and that Flannery even helped W. C. Bingham set rocks and mark trees to establish the boundaries to his portion. Flannery denies this and asserts his silence over the years was dictated by his desire not to disturb his mother.

In canceling the deeds the trial court found them void and that their ob-tention was fraudulent. We find no actual fraud in the picture. When Kitty .Brooks Bingham undertook to partition the land in 1936, her acts were open and after notice and there was no motive to deceive; she merely misconceived her legal power to do what she did. Evy Bingham’s known and exclusive occupancy of the 25 acres deeded to him was clearly under a claim of right to the fee simple title, hostile to Flannery and Tommie for the statutory period, K RS 413.010, and entitled him to fee simple title in the 25 acres by adverse possession, for Flannery and Tommie both had knowledge of their mother’s attempted partition of the land in 1936 and knew that Evy was occupying his 25 acres under her deed to him which purported to convey a fee simple title. In other words, Flannery and Tommie knew the facts, acquiesced, and must be charged with the consequences of their acquiescence so far as Evy’s interest is concerned; they knew that Evy was not occupying the 25 acres as a tenant in common with them, but as a claimant of a fee simple title under his mother’s deed.

So far as Kitty Brooks Bingham’s 1936 deed to Flannery is concerned, it conveyed only Kitty’s undivided interest in that portion of the land. Potter v. Wallace, 185 Ky. 528, 215 S.W. 538; Peabody Coal Company v. Rutter, Ky., 283 S.W.2d 842. Since no deed was ever executed to Tommie by her mother, Tommie’s 1946 deed to W. C. Bingham conveyed only her undivided interest in the portion she conveyed to him.

It is our conclusion that there was no effective partition of the land by Kitty Brooks Bingham to Flannery and Tommie, for neither of them exercised any possession over their designated portions for any period of time and certainly not in a way which would entitle them to assert any interest by adverse possession. Cress v. Conley, 143 Ky. 441, 136 S.W. 1022; Riggsby v. Montgomery, 208 Ky. 524, 271 S.W. 564. After excluding the 25 acres adjudged herein to Evy by adverse possession, the remaining land should be sold as directed by the judgment, the funeral bill of the Hart Funeral Home paid, and the remaining proceeds of the sale, if any, apportioned among Flannery, Tommie and Evy, calculated as their interests appear in accordance herewith. The evidence supports the trial court’s judgment as to the $200 note and the alleged $800 in the money belt.

The judgment is affirmed in part and reversed in part.