author: DUNAGAN, Chief Justice.

text:
    Rogie GRIFFIN and wife, Voicie Nell Griffin, Appellants, v. B & W FINANCE COMPANY, A Corporation, Appellee.
    No. 123.
    Court of Civil Appeals of Texas. Tyler.
    April 8, 1965.

      Ted Odom, Jack K. Allen, Tyler, for appellants.
    Clapp & Beall, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This suit was filed in the County Court at Law of Smith County, Texas, by B & W Finance Company, a Texas Corporation, against Rogie Griffin and wife, Voicie Nell Griffin, to recover on a note for $612.00 with interest at 10 per cent per annum from maturity until paid, executed by the Griffins as principals on August 17, 1962, and for foreclosure of a chattel mortgage securing same. The note was payable in 18 consecutive monthly installments of $34.00 each. Defendants filed a cross-action alleging usurious interest and sought to recover damages therefor. Evidence was heard by a jury. During the presentation of testimony, the defendants announced to the court that they waived their claim of damages leaving only the allegation of usury as a defense to plaintiff’s action. At the close of testimony, the court below, upon motion of the plaintiff, withdrew the case from the jury and rendered judgment for plaintiff, to which defendants duly excepted and gave notice of appeal to this court.

The primary contention made by appellants before this court is: There were questions of fact raised for the jury to pass upon and therefore the court erred in withdrawing the case from the jury.

The $612:00 note sued upon according to witness Sutton, who is vice-president, secretary and manager of the Tyler branch of B & W Finance Company, consisted of $325.00 loan to defendants at the time of the execution of the note, plus $81.00 owed on an old loan with the additional charges of 95{5 recording fee; $39.91 fire insurance covering household goods; $39.-75 unemployment insurance; $9.91 life insurance; $66.10 disability insurance; $11.-00 service fee and $39.91 interest, totaling the sum of $613.53, less $1.53 rebate which they credited to the defendants’ account, leaving a balance of $612.00 being the amount sued for.

Appellants contend that an issue was raised by the pleadings and evidence that called for submission of an issue as to the amount borrowed and cash received by appellants at the time of the execution of the note and that this case should be reversed and remanded for this issue to be determined by the jury. We sustain this contention.

By way of cross-action appellants-defendants alleged that they only borrowed $224.00 and received that sum in cash at the time of the execution of the note in question and defendant, Rogie Griffin, so testified on the trial of this case. Appel-lee’s witness Sutton testified that the Griffins borrowed and received the sum of $325.00 in cash at the time of the execution of the note.

The note and chattel mortgage did not show on the face thereof that interest charged was usurious.

The question of usury is generally one of fact. Andrews v. Hoxie, 5 Tex. 171; Sinclair v. Mack Trucks, Inc., 355 S.W.2d 563, (Tex.Civ.App.) 1962, writ refused, n. r. e.

Since the instruments themselves did not show usury, the question as to whether usurious interest was collected was a matter for determination by the trier of facts. Sinclair v. Mack Trucks, Inc., supra; Andrews v. Hoxie, supra; 58 Tex.Jur.2d 169, Sec. 77.

At the time of the execution of the note and chattel mortgage in question the law limited the interest that may be charged and received for the use and detention of money to not exceeding 10 per cent per annum.

If the contract for the use and detention of the principal debt is not a sum greater than such debt would produce at 10 per cent per annum from the time the borrower had the use of the money until it is repaid, it is not usurious. Eubanks v. Simpson, 90 S.W.2d 291, (Tex.Civ.App.) 1936, writ refused; Nevels v. Harris, 129 Tex. 190, 102 S.W.2d 1046, 109 A.L.R. 1464, 1937.

A simple calculation will show that if the appellants only borrowed and received $224.00 in cash at the time of the execution of the note sued upon as testified to by Rogie Griffin, the contract for the use and detention of the principal debt is a sum greater than such debt would produce at 10 per cent per annum from the time the borrowers had use of the money until it is repaid and would be usurious.

Therefore, the sum of money borrowed and cash received by the Griffins at the time of the execution of the note in question became a material issue for the jury’s determination.

The appellants also raise questions as to whether the Griffins paid for insurance protection, whether they knew of insurance protection, if any, and whether the insurance charge was in fact a coverup for usurious interests. In view of the fact that this case is being reversed and remanded on other grounds, it is not necessary to pass on these questions. However, in view of another trial of this case, we will point out that in the case of Ware v. Paxton, 266 S.W.2d 218, (Tex.Civ.App.) 1954, writ refused, n. r. e., the court said:

“There is evidence that Ware required Paxton to take such credit insurance as a prerequisite to the loans made in connection therewith and that Paxton was given no option in the selection of the insurance company which issued the policies. Ware was an agent for the company in which the insurance was placed and was permitted to keep and did keep approximately 84% or 85% of the premiums on such policies. Under such circumstances the court did not err in finding and in holding the charges made by Ware for such insurance to be improper and usurious interest charges. * * * ”

In Hatridge v. Home Life & Accident Ins. Company, 246 S.W.2d 666, (Tex.Civ.App.) 1952, no writ history, the court held:

“ * * * It shall be permissible for such lender or lender agent to require of a borrower such credit life or credit health and accident insurance or both as a condition for making the loan, if, and only if, the borrower is given the option to purchase such insurance from any insurer or insurance agent of his own choice. * * * ”

Appellants objected to the trial court admitting into evidence the note because on its face it showed to be payable to Western Finance Company and not to the plaintiff. The objection was overruled. Appellants’ objection should have been sustained. The plaintiff, B & W Finance Company, in its pleadings alleged in part: “ * * * On the 17th day of August, 1962, the Defendants made, executed and delivered to the B & W Finance Company of Tyler, Texas, their one certain promissory note for the sum of SIX HUNDRED TWELVE AND NO/lOO ($612.00). DOLLARS, bearing date of the day and year aforesaid, payable to the order of B & W Finance Company of Tyler, Texas, :{c & 99

The note offered in evidence was made payable to Western Finance Company. There is no allegation alleging ownership by transfer or any other manner.

In an action on a negotiable instrument, the petition should allege ownership of the paper in the plaintiff. 9 Tex.Jur.2d 269, Sec. 246. The general averment of ownership is sufficient. Strom v. Dickson, 360 S.W.2d 823, (Tex.Civ.App.) 1962, no writ history; Citizens’ Nat. Bank of Waco v. Billingsley, 300 S.W. 648, (Tex.Civ.App.) 1927, err. ref.; Cawley v. Security State Bank & Trust Co., 126 S.W.2d 715, (Tex.Civ.App.) 1939, writ ref.

This cause is reversed and remanded for trial in accordance with this opinion.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    E. E. COLE, Appellant, v. Weldon B. JOHNSON, Appellee.
    No. 3959.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.

      Fitzjarrald & Poole, J. O. Fitzjarrald, Amarillo, for appellant.
    Wayne Bagley, Amarillo, for appellee.
   WALTER, Justice.

E. E. Cole filed suit against Weldon B. Johnson for possession of an ice machine and other personal property. Johnson filed a cross action for $147.34 for labor and material used in repairing the machine. Cole answered the cross action by alleging payment of his account in full.

In a non-jury trial, judgment was rendered for Johnson against Cole for $147.34. Cole has appealed. He contends the court erred in rendering judgment for Johnson because the undisputed testimony shows that there was an accord and satisfaction.

Cole testified substantially as follows: I delivered an ice machine and some gear boxes to Mr. Johnson for repair. I have been in this business about six or seven years and I know the reasonable cost of repairs. I had some disagreement with Johnson about the cost of the repairs. I thought the bill he presented was too high. He wanted me to pay him three hundred and some odd dollars. I agreed with him on the cost of repairs and we agreed to settle the bill in full for $200.00. My wife prepared the check for $200.00 and I signed it. The notation “account in full to date” was on the check before I handed it to Mr. Johnson.

The check payable to Johnson for $200.00, signed by Cole was introduced in evidence. Under the printed part of the check which recites “this check is in full settlement of account shown herein, acceptance by endorsement constitutes receipt in full” is the hand written notation “Account in full to date.”

Mrs. E. E. Cole testified substantially as follows: I am the wife of the plaintiff in this case. I was at home on March 26th when Mr. Johnson came over to our house and had a talk about his bill for $347.00. I wrote the check and placed thereon the notation “account in full to date” before Mr. Cole signed it. Thereafter Mr. Johnson took the check. The check was later presented to the bank and paid and charged to our account.

Mr. Weldon Johnson, the appellee, testified substantially as follows: I am engaged in the refrigerator business here in Amarillo. I went to Mr. Cole’s house on March 26, 1964, at which time Mr. Cole or his wife gave me a check for $200.00. He was asked “Did you have any discussion as to adjustment on that bill at that time” and he answered “I would say there was some discussion on the bill.” After I took the check on March 26th, I did not send any more statements to Mr. Cole. I am not going to say that the check introduced in evidence was any different from the picture made vdien it was cleared through the bank. Mr. Cole and I had a dispute about the bill on March 26th. He did not think he owed me that much money. Mr. Cole had paid his other bills in full. There was a bona 'fide argument about how much he owed me on Mareh 26th and I haven’t done any more work for him since that time.

In Root & Fehl v. Murray Tool Company, Tex.Com.App., 26 S.W.2d 189, at page 191, 75 A.L.R. 902 (No writ history), the court said:

“It is the settled law of this state that, when an account is made the subject of a bona fide dispute between the parties as to its correctness, and the debtor tenders his check to the creditor upon condition that it be accepted in full payment, the creditor must either refuse to receive the check or accept the same burdened by its attached condition. If he accepts the check and cashes the same, he impliedly agrees to the condition, although he may expressly notify the debtor that he is not accepting the same with the condition, but is only applying the same as a partial payment on the account.”

In Bergman Produce. Company v. Brown, Tex.Civ.App., 172 S.W. 554 at page 557, the court quotes from Ruling Case Law, with approval, the following:

“When a claim is. disputed, and the debtor sends to his creditor a check or other remittance which he clearly states is in full payment of the claim, and the creditor accepts the remittance or collects the check without objection, it is generally recognized that this will constitute accord and satisfaction.”

See also Groves v. Sawyer, Tex.Civ.App., 384 S.W.2d 193, and Industrial Life Insurance Company v. Finley, Jr. (Sup.Ct.), 382 S.W.2d 100.

We are compelled to hold that the record conclusively shows that all of the necessary elements of accord and satisfaction were established.

The judgment is reversed and judgment is rendered for the appellant.


author: WILSON, Justice.

text:
    Kenneth Wayne SWONKE et ux., Appellants, v. HILDEBRANDT ENGINEERING COMPANY, Inc., et al., Appellees.
    No. 4343.
    Court of Civil Appeals of Texas. Waco.
    March 25, 1965.
    Rehearing Denied April 15, 1965.

      Joseph D. Jamail, John Gano, Houston, for appellants.
    Baker, Botts, Shepherd & Coates, Paul W. Persons, Houston, for appellees.
   WILSON, Justice.

In this rear-end automobile collision case judgment was rendered for defendant on jury findings that plaintiff’s negligence in making a sudden stop at a railroad crossing and in failing to keep a proper lookout proximately caused the collision.

Plaintiff’s grounds for reversal are that she was compelled by law to stop, and therefore as a matter of law her stopping could not constitute negligence; and the finding on proper lookout is without adequate support in the evidence. We affirm.

Plaintiff’s narrative of the event was that she approached a street, on which were railroad tracks, at a speed of 30-35 miles per hour. When she was one-half block from the intersection she saw a moving switch engine on the track to her right one-half block away. She began to decrease speed and gradually stopped about one-half car length from the intersection. The locomotive continued to move, she said, until it stopped about one-half car length from the street on which she was traveling. She had been stopped about five or ten seconds when her car was struck in the rear by defendants’ vehicle.

Defendants’ driver testified, on the other hand, that he was following about four car-lengths behind plaintiff; that she made a very sudden stop; that the locomotive was not in motion, and never moved at any time; that the locomotive was 70-100 feet from the intersection; that he saw it when he was 150-200 feet from the crossing. He also testified by deposition that the locomotive was about 35 feet from the intersection, and that “a person might reasonably believe that this engine could come across”; that the switch engine “sits on that track quite often at that same spot.”

A passenger in plaintiff’s car, who we will assume was disinterested, testified that when plaintiff was about one-half block or a block away the locomotive was coming very slowly from the right at a distance of half a block, “and he was dinging his little bell”. Plaintiff made a gradual stop, she said.

Plaintiff argues that the jury findings that her act of stopping suddenly was negligence proximately causing the collision will not support the judgment because Art. 6701d, Sec. 86, Vernon’s Ann.Civ.Stat. created a legal compulsion to stop, and she therefore breached no legal duty by doing so.

That statute, as material here, requires a motorist approaching a railroad crossing to stop not less than 15 feet from the nearest rail when (a) a “clearly visible electric or mechanical signal device gives warning of the immediate approach of a train”; (c) a railroad engine “approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard”; (d) an “approaching train is plainly visible and is in hazardous proximity to such crossing.”

Before plaintiff’s absolute and unconditional duty to stop is fixed as a matter of law under subdivisions (c) and (d) it must be conclusively established that the engine is “approaching.” Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 935. In order to sustain plaintiff’s position it would be necessary, therefore, to hold that the undisputed evidence established as a matter of law at least that the locomotive was actually “approaching”. Concerning the question no issue was submitted. It is obvious the question is not conclusively established, and the evidence made an issue of fact as to whether the engine was “approaching” as that term is used in subdivisions (c) and (d) of Sec. 86. Plaintiff swore it was moving toward her; defendant testified it was stopped.

Subdivision (a) of Sec. 86 relates to “visible”- — not audible — warning devices, and is not applicable to the locomotive bell. “Audible” signals are dealt with in subdivision (c). Under the latter subdivision the tests for determining whether the motorist’s duty to stop is absolute is whether the conditions there enumerated are shown to exist. These are: (1) the engine must be “approaching” (2) within approximately 1500 feet of the crossing, (3) emitting an audible signal, and (4) the engine, by reason of its speed and proximity must be an immediate hazard. Under subdivision (d) of Sec. 86 the essential conditions are (1) the engine must be “approaching,” (2) be plainly visible and (3) be in hazardous proximity. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 935.

It may not be said, therefore, that plaintiff was under an absolute duty to stop. The question of whether the making of a sudden stop was negligence was a question of fact for the jury; and the evidence adequately supports the finding.

Appellant insists also that her lookout was exemplary and the findings that she failed to keep a proper lookout are without evidentiary support and are contrary to the overwhelming preponderance of the evidence. In addition to defendant’s evidence of the suddenness of plaintiff’s stop, there was evidence that plaintiff admitted she had been “driving down the street and talking, and all of a sudden someone said about a train, and she slammed on the brakes in all the hurry and confusion, and then this happened” ; that she was conversing with passengers, one of whom said, “There is a train!” and she “slammed on her brakes.” This, and circumstances in the record require that the points be overruled. Affirmed.


author: TIREY, Justice.

text:
    SPORTS SPECIALTIES, INC., et al., Appellants, v. JAMES TALCOTT WESTERN, INC., Appellee.
    No. 4309.
    Court of Civil Appeals of Texas. Waco.
    April 1, 1965.

      Howard M. Wayland, Houston, for appellants.
    Ross, Banks, May & Cron, John A. Cavin, Houston, for appellee.
   TIREY, Justice.

This is an appeal by defendants, Linus F. Hardin and Marvin DeWoody from an order overruling their plea of privilege to be sued in Harris County, Texas, the county of their residence. The case is before us on stipulations. We quote the stipulations:

“* * * The subject matter of this case, Cause No. 16,625, James Talcott Western, Inc., vs. Sports Specialties, Inc., et al., was originally filed in Harris County, Texas, under Cause No. 611,318, styled in that case, James Talcott Western, Inc., v. Sports Specialties, Inc., et al., in the District Court, Harris County, Texas, 113 Judicial District. In the above numbered case in Harris County, Texas, the following were parties to the suit: James Talcott Western, Inc. was plaintiff, complaining of defendants Sports Specialties, Inc., Parker-Astin, Inc., Marvin DeWoody and Linus F. Hardin. In the suit pending in Harris County Texas under the above number Parker-Astin filed a Plea of Privilege asking removal of the case to Bryan, Texas. The Plea of Privilege was not controverted.
“On September 20, 1963, Judge Tunks of the 113 Judicial District Court of Harris County, Texas, entered an Order in No. 611,318, granting the Plea of Privilege of Parker-Astin, Inc., and severing the cases of Sports Specialties, Inc., Linus F. Hardin and Marvin DeWoody, which cases were left pending at that time in that cause. Subsequent to said Order the Parker-Astin suit was removed to Brazos County, Texas, and filed in this Court under Cause No. 16,625, styled James Talcott Western, Inc., vs. Sports Specialties, Inc., et al, on September 21, 1963.
“Subsequent to the transfer of the suit to Brazos County, Texas, in Cause No. 16,625, Linus F. Hardin and Marvin DeWoody were made a party to Cause No. 16,625, in Brazos County, Texas. Service was accepted by their attorney of Record in Harris County, Texas, Howard Wayland, and a Plea of Privilege was duly filed.
* * * * * *
“Sports- Specialties, Inc. was not made a party to the suit pending in Brazos County, Texas, under Cause No. 16,625.”
(Counsel stated in oral argument that the foregoing corporation had become defunct).
“Cause No. 611,318, pending in the 113th Judicial District Court of Harris County, Texas, remained on the docket with identical parties until October 26, 1964, when an application was filed by James Talcott Western, Inc., to dismiss their action. Said Order was granted, Linus F. Hardin, Marvin De-Woody and Sports Specialties, Inc. having a cross action filed against James Talcott Western, Inc; the case is still pending on the cross action, but leave was granted to James Talcott Western, Inc. to withdraw their suit without prejudice.
* * * * * *
“It is agreed that Sports Specialties, Inc. entered into a contract, your Honor, we did stipulate this only for the purpose of this hearing, — Sports Specialties, Inc. entered into a contract with the plaintiff, James Talcott Western, covering the factor of accounts receivable, which contracts are attached to plaintiff’s First Amended Original Petition. Marvin DeWoody and Linus F. Hardin guaranteed the contracts of Sports Specialties, Inc.
“Sports Specialties, Inc. assigned its accounts receivable against Parker-Astin to plaintiff, and warranted the sale to have been final and unconditional.
“Parker-Astin denies the indebtedness, and alleges either a guaranteed sale, or a sale on consignment.
“Plaintiff, James Talcott Western, brought suit against Parker-Astin, Sports Specialties, Inc., Marvin De-Woody and Linus F. Hardin in Harris County, Texas.” „

In the Order we find this recital:

“And it being stipulated between the parties that Parker-Astin, Inc. is domiciled and resides in Brazos County, Texas; and it being stipulated between the parties that Linus F. Hardin and Marvin DeWoody are residents of Harris County, Texas. It is the opinion of the Court that Linus F. Hardin and Marvin DeWoody are necessary parties to the suit of plaintiff against Parker-Astin, Inc., and venue properly lies in Brazos County under Article 1995 of the Revised Civil Statues of Texas, Sub-divisions 4 and 29a. And it is further the opinion of the Court that the Plea of Privilege of Linus F. Hardin and Marvin DeWoody should be overruled and the Controverting Plea of the Plaintiff herein should be sustained.”

And decreed accordingly.

Defendants perfected their appeal to this court. The order is assailed on two points. They are:

The Court erred:

(1) “ * * * jn failing to conclude that the matter of necessary parties and of venue, had been adjudicated by the 113th Judicial District Court of Harris County, Texas.
(2) “ * * * in concluding that venue is proper in Brazos County, Texas, after appellee waived any such venue rights in said county, by filing suit in Harris County, Texas.”

We overrule each of the above points for reasons hereinafter briefly stated.

As we understand appellants’ brief and their counsel’s oral argument it is to the effect that since Judge Tunks of the 113th District Court, in Cause No. 611,318, sustained the plea of privilege of Parker-Astin, Inc., to be sued in Brazos County, and because the order further recited that the cause is severable as to parties defendant, and particularly as to Parker-Astin, Inc., and severed the action as to Parker-Astin, Inc., and decreed that the venue of the cause as to Parker-Astin, Inc., should be transferred to the District Court of Brazos County, and decreed accordingly, and that since Judge Tunks thereafter, on the 26th day of October 1964 granted the plaintiff’s motion to dismiss its action without prejudice, and tax all costs against the plaintiff, and since the cross-defendants, Hardin and DeWoody, moved the Court to continue their cross-action on the docket, and since the court did so decree, that the effect thereof was to adjudicate the question of venue and necessary parties as to the defendants here on appeal. We are not in accord with this view because the question of venue and necessary parties as to Hardin and De-Woody was not tendered for the Court to decide, and was not res judicata of these defendants’ plea of privilege in this cause. In Rosenfield v. Childs, Tex.Civ.App., 304 S.W.2d 391, the court said:

“An essential element of res judicata plea is that a question of fact or of law has been distinctly put in issue and directly determined by a court of competent jurisdiction.”

Citing State of Oklahoma v. State of Texas, 256 U.S. 70, 41 S.Ct. 420, 65 L.Ed. 831; Stephenson v. Miller-Link Lbr. Co. (Tex.Com.App.), 277 S.W. 1039; Turner v. Jackson, Tex.Civ.App., 273 S.W.2d 641 (n. r. e.). The only question before the District Court of Harris County as to venue at the time the orders were entered was the right of Parker-Astin, Inc., to be sued in Brazos County.

The appellants contend in effect in their Point 2 that the Court erred in holding that venue was proper in Brazos County because appellee waived any such venue rights in Brazos County because it had previously filed suit in the District Court of Harris County, Texas. We are not in accord with this view. The District Court of Harris County, at the request of plaintiff, dismissed plaintiff’s cause of action asserted in Harris County. Thereafter plaintiff filed its first amended original petition in the District Court of Brazos County, and in this pleading it made Linus F. Hardin and Marvin DeWoody parties defendant, and alleged that they had guaranteed in writing the performance of all contracts and agreements of Sports Specialties, Inc., including the itemized account against Parker-Astin, Inc., and by reason thereof they were obligated to pay the sum of $2540.00 because of their written guaranty. Hardin and De-Woody filed their joint plea of privilege to be sued in Harris County, the county of their residence. Such plea was controverted by plaintiff, in which it alleged the liability of such defendants to plaintiff, and further alleged that such defendants were necessary parties by reason of their written guaranties, and inasmuch as the suit was brought against several defendants, one of whom resides in Brazos County, that venue is properly laid in Brazos County under Subdivision four (4) of Article 1995, Vernon’s Ann.Tex.Civ.St. The Court overruled their plea of privilege because of the provisions of Subdivisions 4 and 29a of Article 1995, aforesaid. (The Court’s holding in this last instance is not assailed).

We have carefully examined the record and we find nothing in the record to sustain appellants’ contention that the plaintiff waived its right to maintain its suit against all necessary parties in Brazos County. We have also examined the opinion of the Eastland Court in Winter v. Hamilton, Tex. Civ.App., 214 S.W.2d 330, and we are of the view that the pronouncements there stated are not applicable to the situation here, and each of appellants’ contentions are overruled and the judgment of the Trial Court is Affirmed.


text:
    Richard Eugene JENNINGS, Appellant, v. Laura Lee Turner Jennings HONEA et vir, Appellees.
    No. 4351.
    Court of Civil Appeals of Texas. Waco.
    March 18, 1965.

      Wm. A. Robertson, Houston, for appellant.
    Thomas J. Ryan, Houston, for appellees.
   TIREY, Justice.

This is an appeal from an order denying a motion to reduce payment of child support previously ordered in decree of divorce between the parties. The order is assailed on three points. They are:

(1) “The court abused its discretion in refusing to reduce the child support payments in line with the agreement of the parties approved by the trial court when the oldest of three children reached the age of 18 years because there is no evidence denoting increased expenses for the remaining two children below the age of 18 years.
(2) “The court abused its discretion in refusing to reduce the child support payments in line with the agreement of the parties approved by the trial court when the oldest of three children reached the age of 18 years because the overwhelming preponderance of the evidence shows that there are no increased expenses for the remaining children below the age of 18 years.
(3) “The court as a matter of law committed error in failing to give effect to the agreement of the parties which was approved by the trial court and filed with the records of the cause providing for automatic reduction as each child reached the age of 18 years.”

Each of the foregoing points is overruled for reasons hereinafter briefly stated.

The divorce decree was entered on November 5, 1962, and in the order we find the following recitations:

“ * * * after investigation of the financial circumstances of both plaintiff and defendant, as well as the needs, station in life and condition of said minor children, that defendant, Richard Eugene Jennings, is able to contribute to the support and maintenance of said children in the sum of Three Hundred Dollars ($300.00) per month until said children have attained the age of eighteen years; * *

And the court decreed accordingly.

It is true that the parties, prior to the divorce decree, entered into a property settlement at the time the divorce was granted. The parties had three children under 18 years of age, and their settlement agreement provided that the defendant pay the sum of $100.00 per month for the maintenance and support of each child, and further provided: “ * * * that as each child becomes eighteen years of age, the monthly payments will be decreased to the extent of one-third of the full amount.”

The court’s decree did not follow the above provisions of the agreement but decreed as heretofore stated. It was stipulated that the oldest child, Richard Jennings, reached the age of eighteen years on March 18, 1964, and the father filed his motion to reduce the child support payments on May 16, 1964. Appellant’s motion for reduction was grounded on the fact that the oldest boy had attained his 18th birthday, and that this was a material change that authorized the reduction in the support payments as a matter of law, and further because of the agreement of the parties. On trial we find this statement by the court:

“I think the fact that you have stipulated that one of the children is now eighteen years of age is sufficient for a material change.
“Mr. Ryan: Then I think that — You want to hear evidence on increased expenses ?
“The Court: Yes, sir.”

The appellee testified in part:

“Q. Would you recite to the court briefly the increase in expenses you have incurred for the support of your minor children since the time of the divorce?
“A. Well, he knew how much eighteen year olds cost. Richey had been told by Dr. Jennings that Dr. Jennings would send him to college last year, but he refused to do that, and Richey is a ‘B’ student and' has now made application to the University of Houston and has been accepted, and this entails a lot of money. He wants to be a lawyer, and he feels very rejected anyhow because of the fact Dr. Jennings is trying not to pay for him and never sees him.
‘Q. Prior to the time — is he undergoing medical treatment?
* * * * * *
"A. Yes.
* * * * * *
‘Q. Has your rent been increased since, or mortgage payment been increased since the divorce?
‘A. Yes. We had to sell the house to pay Dr. Jennings off in the divorce settlement, and we couldn’t find an apartment, an inexpensive apartment that would take five children, so we have one that costs $250 a month, and we are trying to get enough money to get a house so each of the children can have their own rooms.
‘Q. You also keep the books in your family on food costs and things like that. Have you found they have increased since the time of your divorce?
A. No, honestly they haven’t been increased. Teenagers eat a lot from fifteen on up.
‘Q. You spend more money because of the children?
‘A. Oh, yes.
‘Q. Have you found that also to be true in their clothing?
‘A. Oh, yes. Richey wears mens’ clothes and mens’ shoes.
“Q. Now, my understanding is he is seeking a reduction of $100. Would you state whether or not your expenses have increased at least $100 since the time of the divorce ?
“A. We spend over $100 a month in doctor bills on Richard.”

Dr. Jennings, the father, testified to the effect that he was employed by the University of Texas at some $18,000.00 per year; that he also had another contract with Colgate for $3000.00 per year, but that that contract was due to expire. He further testified to the effect that his contract with the University of Texas was made each year and that there was a possibility that he would get a $1000 raise.

Article 4639a, as amended, Vernon’s Ann.Civ.St. art. 4639a, is controlling here. The last part of the Article provides:

“Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.”

This article has been construed by our Appellate Courts many times and they have consistently held that the District Court is vested with full power and authority to fix the amount of the support orders and such order is, of course, subject to modification by the court. See Brady v. Hyman, Tex.Civ.App., 230 S.W.2d 342, n. w. h.; also Hardin v. Hardin, Tex.Civ.App., 247 S.W.2d 614, n. w. h. Section 1a. of Article 4639a, provides:

“The person or persons to whom the payments above provided for are made under the judgment of the Court shall file sworn monthly reports with the Clerk of the Court before which the cause is pending setting out an itemized statement.of the expenditure of such sum or sums of money as may have been received showing in detail the manner in which such money- has been spent. The report so filed shall he examined and approved or disapproved by the Judge before which said cause is pending.”

There is nothing in the record to indicate that this provision of the statute has been complied with, nor was any complaint made in the court for the appellee’s failure to do so. So, the appellant here, is relying on the fact that because the separation agreement stipulated that the payments for support should be reduced by $100 when each child attained his 18th birthday, that he is entitled, as. a matter of law, to have the support payments reduced. Since the Trial Court, under the evidence tendered, refused to reduce the support order payment, we think the burden rested upon appellant to show an abuse of discretion, and this we think he has failed to do. See Ex parte Eaton, 151 Tex. 581, 252 S.W.2d 557, 560; Scott v. Fort Worth Nat. Bank, Tex.Civ.App., 170 S.W.2d 576; DeViney v. DeViney, Tex.Civ.App., 269 S.W.2d 936, writ ref., n. r. e.; Madden v. Madden, Tex.Civ.App., 365 S.W.2d 427, n. r. e. Our Supreme Court in Gully v. Gully, 111 Tex. 233, 231 S.W. 97, p. 98, 15 A.L.R. 564, made the following pronouncement:

“Though both parents are under the duty, legal as well as moral, to support and educate their children during minority, the duty rests primarily in this state, without doubt, upon the father.”

See also Angel v. Todd, Tex.Civ.App., 368 S.W.2d 224, n. w. h. Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133, n. r. e. The foregoing pronouncement has not been changed by our Supreme Court nor by statute.

We have carefully considered the entire record in this cause and we are of the view that the appellant has failed to carry his burden of showing that the Court abused its discretion in refusing to reduce the child support payments (see Beaird v. Beaird, Tex.Civ.App., 380 S.W.2d 730, points 1 and 2), and the Court’s refusal to make such reduction is not against the overwhelming weight and preponderance of the evidence. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Each of appellant’s points is overruled and the judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    V. C. BROWN, Appellant, v. Andrew FELDER et al., Appellees.
    No. 4329.
    Court of Civil Appeals of Texas. Waco.
    March 18, 1965.
    Rehearing Denied April 8, 1965.
    V. C. Brown, Texas City, for appellant.
    Engelke, Brown & Holbrook, Don Brown, La Marque, for appellees.
   McDONALD, Chief Justice.

Appellant Brown instituted this suit for $995. against appellee Felder, as balance due on an attorney’s fee; appellee Yates was alleged to have advised Felder not to make payments on the fee. Appellees filed defenses of fraud, mutual mistake and general denial.

Trial was before the Court without a jury which, after hearing, rendered judgment that appellant*take nothing.

Appellant appeals, contending that the “trial court abused its discretionary authority.”

Appellant brings forward no Statement of Facts.

In the absence of a Statement of Facts, it must be presumed on appeal that sufficient evidence was introduced to support the findings and judgment of the Trial Court. Further, every reasonable presumption consistent with the record will be indulged in favor of the correctness of the judgment. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Ehrhardt v. Ehrhardt, CCA (Ref.) 368 S.W.2d 37.

Appellant has shown no error. Affirmed.


author: COLLINGS, Justice.

text:
    HEMPHILL COUNTY, Texas, Appellant, v. Harry RATHJEN, Appellee.
    No. 3964.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Rehearing Denied April 23, 1965.
    J. D. Crow, County Atty., Canadian, for appellant.
    Allen, Allen & Reavis, Jack M. Allen, Perryton, for appellee.
   COLLINGS, Justice.

Hemphill County brought suit on May 19, 1964 against Harry Rathjen seeking to recover money alleged to have been wrongfully withheld by defendant when he terminated his position as tax assessor and collector for the county. The defendant pleaded the two year statute of limitation and filed a motion for summary judgment. The court sustained the defendant’s plea of limitation and dismissed the suit. Hemphill County has appealed urging one point contending that the court erred in sustaining defendant’s plea of limitation and in dismissing the suit.

The cause of action of Hemphill County as alleged in its petition was based upon the alleged wrongful withholding by appellee Rathjen of certain monies which came into his possession while he was sheriff and tax collector and assessor of Hemphill County from 1955 until July 3, 1961. Suit was not brought against appellee upon an instrument in writing, or upon his official bond. The sureties on his bond were not made parties to the suit. Therefore, neither Article 5527 nor Article 6003a Vernon’s Ann.Tex. Civ.St. under which suit may be brought within four years after the accrual of a cause of action were applicable. Appellant’s allegations were that appellee unlawfully issued car licenses to himself and his deputies without paying therefor and that the shortage in the license accounts had to be made up out of funds belonging to appellant; that appellee also collected and received other designated sums of money as fees for assessing and collecting taxes under contracts for two independent school districts and had unlawfully withheld payment of such sums to appellant; that when appellee’s official capacity with the county terminated he unlawfully withheld said amounts which belonged to and should have been remitted to appellant, and it was for these claims which appellant sought judgment. Appellant did not allege or claim that any part of its cause of action was based upon a written instrument but sought to recover by reason of appellee’s alleged obligation to remit to the county funds m his possession which appellant alleged belonged to the county. This suit is therefore based upon an implied contract or obligation on the part of appellee to remit to the county certain monies in his possession and the two year statute of limitation applies. Article 5526 V.A.T.C.S. Jeff Davis County v. Davis, Tex.Civ.App., 192 S.W. 291; Settegast v. Harris County, Tex.Civ.App., 159 S.W.2d 543. Appellant concedes that its cause of action accrued as early as February 1, 1962. Limitation therefore ran on February 1, 1964 prior to the filing of this suit on May 19, 1964.

We are also of the opinion that there is no pleading or showing by appellant of any fraud or concealment on the part of appel-lee which would delay the running of the statute. City of Port Arthur v. Tillman, Tex.Civ.App., 382 S.W.2d 138. The court did not err in sustaining appellee’s plea that appellant’s claim is barred by the two year statute of limitation.

The judgment is affirmed.


author: .RENFRO, Justice.

text:
    Eva N. McBROOM, Appellant, v. N. E. GUTHRIE, Jr., Appellee.
    No. 16631.
    Court of Civil Appeals of Texas. Fort Worth.
    April 2, 1965.
    Rehearing Denied April 30, 1965.
    Mitchell & Baxter and Titus T. Mitchell, Wichita Falls, for appellant.
    Short & Smith and Donald E. Short, Wichita Falls, for appellee.
   .RENFRO, Justice.

Plaintiff appealed from a judgment non obstante veredicto.

Plaintiff’s claim was for money allegedly due her under the terms of an “understanding * * * set down in writing and executed by the parties * * * upon which written agreement this cause of action is based.”

The issues submitted to the jury were predicated upon plaintiff’s testimony which chiefly concerned oral conversations held with defendant or his agent without reference to the terms of the written contract. Defendant objected to the submission of the issues, hence, we do not have here a case falling under Rule 67, Texas Rules of Civil Procedure.

It is well established that a plaintiff who sues upon a contract must recover upon the contract alleged in his petition and if the proof shows a contract essentially different from that alleged he must fail in the action. Ware v. Poindexter Furniture & Carpet Co., 131 Tex. 568, 117 S.W.2d 420 (1938); 33 Tex.Jur.2d 573, § 70.

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

Affirmed.


author: McDONALD, Chief Justice. WILSON, J.,

text:
    Mrs. Mary L. FLOWERS et al., Appellants, v. W. A. MICHULKA, Appellee.
    No. 4356.
    Court of Civil Appeals of Texas. Waco.
    April 1, 1965.
    Victor R. Blaine, Houston, for appellants.
    Robert A. Scardino, Houston, for ap-pellees.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment for plaintiff for $4300. Plaintiff Michulka, by sworn pleadings, sued defendants Flowers, et al., for damages for breach of a lease contract whereby defendants had agreed to pay $1000 per month. Plaintiff alleged, among other things, that “ * * * Defendants failed and refused, on or about the 1st day of January, 1964, to pay him the payment due under said lease, and defendants still fail and refuse to pay plaintiff said moneys owed to him under the terms of the contract and lease, thereby breaching the existing Contract and Lease Agreement, to plaintiff’s damage in the sum of $4300 * * *." Plaintiff’s petition was filed April 22, 1964, and a copy of the lease contract was attached thereto. Defendants filed an unsworn general denial to plaintiff’s petition. Plaintiff thereafter filed motion for summary judgment, alleging that defendants, by answer consisting only of a general denial, failed to join any issues. Defendants filed no reply to plaintiff’s motion for summary judgment; and the Trial Court granted such motion and entered judgment for plaintiff for $4300.

Defendants appeal, contending that their answer of general denial to plaintiff’s petition was sufficient to raise issues of fact, thus precluding summary judgment.

The defendants by not denying the execution of the contract under oath, admitted the contract. Rule 93, Texas Rules of Civil Procedure. Such contract provided for payment of $1000 per month in rents. Plaintiff’s petition alleged that defendants defaulted in the $1000 per month payment on January 1, 1964 and thereafter until $4300 was owed under the terms of the contract. Defendants did not allege that they had made any “payment” by way of affirmative defense as required by Rules 94 and 95 T.R.C.P. Only a general denial was filed by way of answer.

Since the execution of the lease contract was not in issue, and since it required contractual monthly payments, the general denial was insufficient to raise issues of fact herein. Rules 94 and 95 T.R.C.P. require that the defense of payment be affirmatively pleaded. Southwestern Fire & Cas. Co. v. Larue, Sup.Ct., 367 S.W.2d 162.

Defendants’ contentions are overruled.

Affirmed.

WILSON, J.,

concurs in the result solely on the ground that appellee’s petition, containing detailed factual assertions probably admissible in evidence, was verified by his affidavit.


author: J. P. MORGAN, Special Commissioner.

text:
    Elizabeth FESTE, Plaintiff-Respondent, v. Billy M. NEWMAN, Defendant-Respondent, and Jean Denton, Defendant-Appellant.
    No. 31112.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied April 12, 1965.
    Eaker, Dempsey, Heath & Dempsey, David G. Dempsey, Richard B. Dempsey, Clayton, for plaintiff-appellant.
    Derrick & Holderle, St. Louis, for defendant-appellant.
    Gray & Jeans, Charles E. Gray, St. Louis, for defendant-respondent.
   J. P. MORGAN, Special Commissioner.

Plaintiff sought $50,000 for personal injuries allegedly suffered in a collision at the intersection of McRee Street and a public alley in the City of St. Louis between an automobile driven by defendant Denton, in which she was a passenger, and another automobile driven by defendant Newman. The jury found in favor of Newman but against Denton in the sum of $10,000. The dismissal of plaintiff’s rather perfunctory appeal against Newman may be found in Feste v. Newman and Denton, Mo., 368 S.W.2d 713, and leaves for decision only those issues presented by the appeal of defendant Denton.

McRee Street runs generally east and west and is intersected west of the accident scene by Vandeventer Avenue which runs north and south. An alley from the north deadends into McRee approximately 234 feet east of Vandeventer. Plaintiff was seated in the right front seat of the Denton automobile as it came south out of the alley onto McRee, but she had no knowledge of how the accident occurred. She called on both defendants to reconstruct the scene. Defendant Denton testified as she approached McRee she observed automobiles parked thereon within four to five feet of the alley; she brought her automobile to a stop with its front end projecting beyond the parked cars in such position that she could see west all the way to Vandeventer; from this position she first looked to her left or east and saw no traffic was approaching; she then looked to her right or west (could see to Vandeventer) and saw no moving traffic; she again looked to her left, saw nothing, and started across McRee to make a left turn; she estimated 3 or 4 seconds elapsed from the moment she took her eyes away from Vandeventer to the moment she started forward, but at another point she stated it took only a total of 3 or 4 seconds for her to look left, right, left again, and start moving; her car was about three-fourths of the way across the center line of Mc-Ree when it was struck on the right side by the left front fender of the Newman car.

Defendant Newman testified that to go east he made a right turn off Vandeventer onto McRee at a speed of about 15 miles per hour which increased to 25 or 30 at the point of impact; he did not see the Denton car stopped, but first saw it moving into McRee with its front end about 2 or 4 feet past the parked cars at a speed between 5 to 10 miles per hour; at this moment he was one or two car lengths or 30 to 32 feet west of the alley.

Defendant Denton alleges error in the giving of Instruction No. 5, a sole cause instruction on behalf of co-defendant Newman; refusal of her offered Instruction No. C; and giving of plaintiff’s measure of damages Instruction No. 11.

Defendant Denton’s allegations of error can be resolved more clearly if the submission of plaintiff’s case is first noted. By Instructions No. 1 and 2 plaintiff submitted negligence on the part of each defendant in failing to keep a lookout ahead and laterally. By Instruction No. 3, she submitted negligence on the part of defendant Denton alone in failing to yield the right-of-way. It read: “The Court instructs the jury that the statutes of the State of Missouri, and the ordinances of the City of St. Louis, provide that the driver of an automobile entering a street from an alley shall yield the right-of-way to other vehicles approaching on the street.

“In that regard you are instructed that if you find from the evidence that on the occasion mentioned in evidence defendant Jean Denton was operating an automobile southwardly out of an alley and that as she approached the centerline of McRee, defendant Billy Newman was travelling east-wardly on McRee at a speed of 25 to 30 miles per hour, and was in such close proximity that an immediate hazard of collision was created, and if you further find that thereafter defendant Denton failed to yield the right-of-way and continued across the centerline of McRee and into collision with the Newman automobile and that such failure on her part, if any, to yield the right-of-way was a failure to exercise the highest degree of care and was negligent and that such negligence, if any, directly and proximately caused, or contributed to cause said collision, and if you find that as a direct result thereof plaintiff was injured, then you are instructed that your verdict should be in favor of plaintiff Elizabeth Feste and against defendant Jean Denton.” (Italics added).

Defendant Denton has no point in her brief by which she asserts that Instruction No. 3 was prejudicially erroneous as to her. It must be mentioned, however, that in Point II, claiming error in the refusal of her offered Instruction No. C, she asserts the same deficiencies in No. 3 that are allegedly found in No. 5. However, the point is directed to the refusal of Instruction No. C and not to the giving of Instruction No. 3.

Instruction No. 5 (given by co-defendant Newman) was apparently copied verbatim from No. 3 with the following substituted for the italicized portion: “ * * * was a direct and sole cause of the collision and injury, if any, to the plaintiff Feste, and if you further find that defendant Newman was not negligent as submitted to you -in other instructions, then you are instructed that your verdict should be in favor of the defendant, Billy Newman.”

It is contended that error was committed in giving Instruction No. 5 because: (1) it required her to yield the right-of-way to Newman regardless of whether she saw or could have seen Newman’s automobile approaching, (2) it did not hypothesize facts with respect to the view she had to her right as she emerged from the alley or with respect to the position of the automobiles, and (3) it did not hypothesize facts upon which to base a finding that there was a duty on her part to yield the right-of-way.

It is thus immediately apparent that every alleged deficiency in Instruction No. 5 (given by Newman) pertains only to that portion of the instruction which is identical with Instruction No. 3 (plaintiff’s verdict directing instruction.)

Plaintiff questions the right of defendant Denton to complain of error, if any, in Instruction No. 5 by contending, “The rule appears to be well settled that one defendant may not complain of error in an instruction offered by a co-defendant unless the error has prejudiced the appealing defendant’s right to a fair presentation of his case to the jury.” The argument is consistent with the holding in Ciardullo v. Terminal Railroad Ass’n of St. Louis, Mo., 289 S.W.2d 96, 98, 61 A.L.R.2d 516, where it was stated: “ * * * The established rule seems to be that an appealing defendant can avail itself of an error in a co-defendant’s instruction which affects the question of the appealing defendant’s liability to the plaintiff and prejudices such defendant’s interests.” Here, the law of this case as to the liability of defendant Denton for failing to yield the right-of-way was established by Instruction No. 3. Did Instruction No. 5 aid plaintiff in establishing defendant Denton’s liability or increase the burden of defendant Denton in establishing her defense against plaintiff? It cannot be said that it did for in addition to the fact that she has failed to specify any way in which it prejudiced the issues between her and plaintiff, it should be noted that by it her burden of proof was not enlarged, nor did it restrict or circumscribe her theory of the case or authorize a verdict against her. All it did, in fact, was to instruct the jury that if she was guilty of the negligence charged by plaintiff in No. 3, that defendant Newman was not liable to plaintiff unless, he had failed to maintain a lookout as submitted against him in other instructions. The rule uniformly has been, “ * * * The appellant cannot complain simply because a co-defendant’s erroneous instruction was more favorable than proper to such defendant and thereby prevented a joint verdict and judgment against defendants.” Ciardullo v. Terminal Railroad Ass’n of St. Louis, supra; Phegley v. Graham, Mo., 215 S.W.2d 499, 6 A.L.R.2d 382; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. The rule is applicable and the point must be ruled against defendant Denton.

In Point II, she charges error in the refusal of her requested Instruction No. C, which read: “The Court instructs you that an operator of an automobile, when charged with the duty of yielding the right-of-way to approaching traffic, cannot be charged with the failure to yield the right-of-way, unless the approaching traffic is within sight of the person charged with the duty to yield the right-of-way.” It can be assumed that if this instruction had been given the complaints set out in Point I would have been alleviated for as she contends, “It has consistently been held that if either party deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized such complaining party should offer a clarifying or amplifying instruction.” Plaintiff argues that giving the instruction would have created confusion by use of the term “within sight” in that, “It could refer to the objective standard of ability to see; yet it also could refer to the subjective standard of actual sight and knowledge.”

In any event, no error resulted from the refusal of this instruction. Its effect would be to direct a verdict without hypothesizing any facts. Even ignoring plaintiff’s criticism of it, no facts are set out upon which to support a finding that the automobile of defendant Newman was not “within sight.” It might be added, regardless of her testimony that she looked and did not see the Newman automobile, that it had to have been “within sight.” It is often said the fact a collision occurred and the manner of its happening are evi-dentiary facts. Her duty to yield would at least continue to the center of McRee Street (the first point at which she started to enter the south lane provided for eastbound traffic) and her automobile was struck within the time it took three-fourths of it to cross the center line. Any mathematical approach suggested by the evidence, and allowing for any deviation to the left in connection with her turn, places the Newman automobile “within sight.” Prejudicial error does not result from the failure to give such an abstract statement of law whether correct or incorrect. Gaffner v. Alexander, Mo., 331 S.W.2d 622; Wilson v. Murch, Mo.App., 354 S.W.2d 332 (339).

Under her third point, defendant Denton urges error in plaintiff’s measure of damages Instruction No. 11, because, “ * * * the instruction is misleading and fails to restrict recovery of the plaintiff to the injury sustained in the collision of June 1, 1960.” Plaintiff, among other injuries, suffered a compound fracture of the arm, and evidence was offered that some of her complaints were perhaps attributable to a fracture of the wrist sustained when she slipped and fell on January 29, 1960. The introductory paragraph of the instruction provided that if plaintiff prevailed, “you will assess her damages in such sum, if any, as you believe and find from the evidence in this case will fairly compensate her for all damages and injuries, if any, you find she sustained as a result of the collision of June 1, 1960, if directly caused thereby.” In setting out the elements of damage the jury might consider, references in four sub-parts were to her injuries. From the extended argument on this point, the most that could be concluded would be a suggestion that after each reference to her injuries some terminology should have been repeated limiting the consideration of the jury to the injuries suffered in this collision. As previously set out, the first paragraph of the instruction unequivocally advised the jury to consider the damages and injuries directly resulting from the collision of June 1, 1960. It is presumed that the jury was composed of persons of ordinary intelligence and common sense, and there is nothing in the record to suggest they were incapable of understanding such clear and concise language. Although not assigned as error, by argument she complains that Instruction No. 13 given on behalf of defendant Newman was also misleading. It provided in part, “ * * * plaintiff is not entitled to recover for any impaired condition she may have had prior to the accident mentioned in the evidence * * If she thought Instruction No. 13 did not satisfy her criticism of Instruction No. 11, it became her province to offer a supplementary instruction. Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372; Shepard v. Harris, Mo., 329 S.W.2d 1. Having found no error affecting the trial of this cause, your commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by MORGAN, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is affirmed.

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


author: DOERNER, Commissioner.

text:
    John PETTUS, Plaintiff-Respondent, v. Morris DUBMAN, Defendant-Appellant.
    No. 31902.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied April 12, 1965.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for defendant-appellant.
    Earl R. Blackwell, Hillsboro, for plaintiff-respondent.
   DOERNER, Commissioner.

In this action to recover for personal injuries and property damage plaintiff obtained a verdict and judgment for $8300, and defendant appealed.

The collision which gave rise to the litigation occurred about 1:00 P.M. on May 18, 1960, at the intersection of U. S. Highway 67 and State Highway JJ in Jefferson County. At that point Highway 67 is a two lane road 24 feet wide, running north and south; and Highway JJ, of two somewhat narrower lanes, runs east and west. The day was sunny and bright. Plaintiff, on his way to a funeral, was driving his pick-up truck eastwardly on Highway JJ, and was crossing Highway 67 when the collision occurred. Defendant, also driving a pick-up truck, was traveling northwardly on Highway 67 on his way to St. Louis.

Plaintiff submitted his case by Instruction No. P-1 upon conjunctive specifications of humanitarian negligence as between failure to warn on the one hand and failure to stop, slow or swerve on the other. Defendant’s initial point is that the court erred in overruling his motion for a directed verdict because as a matter of law plaintiff failed to make a submissible case under any theory. Defendant does not specify whether he means the motion he filed at the close of plaintiff’s evidence or the one filed at the close of all the evidence, but since defendant waived the former by introducing evidence after the close of plaintiff’s evidence, Appelhans v. Goldman, Mo., 349 S.W.2d 204, we will assume he refers to the latter. Our review, therefore, is limited to the issue of whether there was sufficient evidence to justify a submission on either of the conjunctive submissions. For if plaintiff made a case under either theory then defendant’s motion for a directed verdict at the close of all the evidence was properly denied. Nelson v. Wabash R. Co., 300 S.W.2d 407; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Holmes v. McNeil, 356 Mo. 763, 203 S.W.2d 665; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. In our determination of that question plaintiff is entitled to the benefit of all the favorable probative evidence in the case and all of the reasonable inferences to be drawn therefrom, including defendant’s evidence which aids plaintiff’s case and is not contrary to plaintiff’s own testimony or his fundamental theory of recovery. Appelhans v. Goldman, supra; Price v. Nicholson, Mo., 340 S.W.2d 1.

We consider first defendant’s alleged negligence in failing to warn. Plaintiff testified that in obedience to a stop sign which controlled eastbound traffic on Highway JJ he came to a stop approximately 8 feet west of the west edge of the pavement of Highway 67. He looked to his left and saw two cars traveling southwardly, which were about 1000 feet away. He then looked to his right, or southwardly. Because of a hill located on the southwest corner of the intersection his view to the south was limited to what he estimated was about 300 feet. He saw no vehicles approaching from the south, and started to slowly cross the intersection at a speed of 3 to 5 miles an hour. His speed was about 3 miles an hour when his front wheels reached a point 6 feet into the southbound lane of Highway 67, and about 4 or S miles an hour when they reached the east side of the pavement. At that point his truck was struck on its right side by the defendant’s vehicle. Plaintiff testified that after starting up from the stop he looked straight ahead and never looked to his left or right. He stated that no horn was sounded at any time as he crossed Highway 67 and that he had both windows down. He also estimated that at a speed of 3 miles an hour he could have brought his truck to a stop in 4 feet.

Defendant testified that he saw plaintiff’s truck before it reached the west edge of the pavement of Highway 67, and saw that it was proceeding slowly across the intersection. He saw plaintiff’s head and face as plaintiff was crossing Highway 67 and admitted that plaintiff never looked towards him as plaintiff proceeded across the entire width of the intersection. Asked by his counsel whether he had sounded his horn, defendant answered, “I don’t remember, I didn’t have any time, it was a short time.”

Defendant contends that plaintiff failed to prove that defendant’s truck had a horn or that it was in working condition. As we pointed out regarding a similar argument in Hook v. St. Louis Public Service Co., Mo.App., 296 S.W.2d 123, 127: “ * * * Facts consistent with legality are presumed to exist, so we may indulge the defendants with the presumption that the bus had both brakes and horn. 31 C.J.S., Evidence, § 134, p. 771; Missouri Power & Light Co. v. Creed, Mo.App., 32 S.W.2d 783; Allen v. Kessler, Mo., 64 S.W.2d 630.”

It is next argued that since the normal reaction time is fáths of a second, in which period plaintiff’s truck at 3 miles an hour would have traveled 3.3 feet, plaintiff’s testimony that he could have stopped in 4 feet “is impossible and cannot be accepted * * *." Of course, the stopping distance given by plaintiff was only an estimate. However, while we do not have judicial knowledge as to the exact distance within which a motor vehicle can be stopped, under given circumstances we do take judicial notice of limits within which an automobile traveling at a stated rate of speed can be stopped. Perry v. Dever, Mo., 303 S.W.2d 1; Peterson v. Tiona, Mo., 292 S.W.2d 581; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9. Our appellate courts have taken judicial notice of the fact that an automobile with good brakes “ * * * could be stopped almost instantly — within a matter of a very few feet * * * ” when traveling at 2]4 miles an hour, Wegener v. St. Louis County Transit Co., Mo., 357 S.W.2d 943, 947; or even at 5 miles an hour, Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60. Defendant conceded that he saw plaintiff’s truck before it reached the west edge of the pavement of Highway 67, and that plaintiff looked straight ahead, never towards him. Plaintiff’s observed obliviousness widened the zone of peril, imposing upon defendant the duty to act in avoidance when he saw plaintiff approaching the path of defendant’s vehicle oblivious of the danger and intent upon continuing into its path. The precise point during plaintiff’s run at which plaintiff came into a position of imminent peril is not for this court to say. Under the evidence the jury reasonably could have found that the defendant knew the plaintiff was oblivious of the danger and intent on continuing into the path of the defendant’s truck at or before plaintiff started across the southbound lane of Highway 67. Wegener v. St. Louis County Transit Co., supra. We take judicial notice that at a speed of 3 miles an hour, allowing for reaction time, plaintiff if warned at that point could have stopped his truck within 12 feet. We hold that plaintiff made a submissible case of failure to warn under the humanitarian doctrine, and the court did not err in overruling defendant’s motion for a directed verdict filed at the close of all the evidence. It therefore becomes unnecessary to consider the other submission.

Plaintiff complains that that part of Instruction No. P — 1 relating to defendant’s duty to warn was erroneous in that it did not require the jury to find, by the usual phrase, “ * * * * ‘with the means and appliances at hand,’ ” that defendant’s truck was equipped with a horn which defendant could have sounded. Whether or not defendant’s truck had a horn was not a contested issue in the case, and it was not necessary to require the jury to find that it was so equipped. Dennison v. Besselman, Mo.App., 362 S.W.2d 86; Arky v. Kessels, Mo.App., 262 S.W.2d 357. After all, it was defendant’s own counsel who asked his client whether he had sounded his horn, thereby assuming that the truck was so equipped; and the defendant’s response was not a denial that he lacked such a warning device, but a claim that the time was too short in which to sound it.

Plaintiff’s third assignment is that the court erred in permitting the jury “to consider evidence of injuries in this case which were unrelated to this accident and to plaintiff * * *." This complaint refers to plaintiff’s exhibits 1 and 2, which were X-rays, and to the testimony of Dr. J. L. Foster, plaintiff’s medical witness. By way of background it should be stated that plaintiff testified that he was taken from the scene of the accident to the Bonne Terre Hospital, where he was treated by Dr. Foster. By agreement, plaintiff’s counsel read into evidence various excerpts from a photostatic copy of the hospital records, including the information that John Pettus was admitted on May 18, 1960 (the day of the accident) at 2:30 P.M.; that the admitting physician was Dr. J. L. Foster; that the patient was in shock and “ * * * entered the hospital following a car accident shortly before admission * * * ”; that X-rays were taken; and that they “ * * * revealed fracture of the right transverse process L5 without much displacement. Also fractures of the inferi- or/superior rami of the right pubis.” Following the reading of the hospital records plaintiff called Dr. Foster to the stand, and after qualifying him, counsel asked, “Doctor, have you had occasion to see Mr. John Pettus on March the 18th, 1960?” to which the Doctor responded: “Yes sir.” The witness testified that he saw the plaintiff at the Bonne Terre Hospital, and that plaintiff told him he had been in a car accident. He was asked for his diagnosis of plaintiff’s condition, received assurance that he could use his own photostatic copy of the hospital records to refresh his memory, and then testified that when plaintiff entered the hospital plaintiff was suffering from nervous shock due to the injury; and that plaintiff had a fractured transverse process of the 5th lumbar vertebra and a fracture of the inferior-superior portion of the right pubic bone. ’ Counsel then handed the doctor plaintiff’s exhibit No. 1 and asked him what it was. The doctor answered tht it was an X-ray of the pelvis and backbone, and proceeded to point out the 5th lumbar vertebra and the crack in it; as well as the two cracks in the pubic bone. The doctor was handed plaintiff’s exhibit No. 2, asked whether it showed substantially the same thing, and replied that that view also showed the crack in the transverse process of the 5th lumbar vertebra. During the remainder of his direct examination the doctor testified to certain complications which developed during plaintiff’s stay in the hospital and the treatment given him. Counsel for defendant then cross-examined briefly, followed by a short redirect and recross examination.

After the doctor had left the stand and had been excused counsel for defendant, out of the hearing of the jury, moved that the jury be instructed to completely disregard the two X-rays for the reason that the testimony of the doctor showed that he first saw plaintiff on March 18, 1960, and that there was no showing that the two X-rays were X-rays of Mr. Pettus, the plaintiff. During the colloquy which ensued plaintiff’s counsel insisted that the X-rays were part of the hospital records and that he had asked the doctor whether X-rays had been taken on May 18th, and what they showed. Defendant’s counsel did not deny that the X-rays were part of the hospital records; his reply was, “You said March, I wrote it down at the time and that’s what you said.” The court ruled that the exhibits would be admitted. Defendant’s counsel then moved, “ * * * that the testimony of Dr. Foster be stricken from the record and the jury instructed to disreagard (sic) it, I’m referring to the fractures of the transverse process and pubic bone because there is no showing either one are related or contributed to by the accident.” The motion was overruled.

The record shows that in propounding the question to Dr. Foster plaintiff’s counsel did use the date of March 18 instead of May 18, the day of the accident. But we think it is clear from the record that the reference to the former date was a mere inadvertence. Both plaintiff and defendant testified that the collision occurred on May 18. Plaintiff testified that he was immediately thereafter taken to the hospital. The hospital record, read into evidence by agreement, revealed that plaintiff was admitted on May 18. They further showed that X-rays were taken upon his admission, and the injuries revealed thereby. The X-rays used by the doctor to point out the plaintiff’s injuries which they revealed, and which corresponded with the hospital records, included the printed and handwritten legend which was an integral part of the X-ray film:

Under these circumstances we think it must have been apparent to everyone at the time (including defendant’s counsel who raised no point of materiality), that the reference to March 18 was a mere slip of the tongue, and that the X-rays were those taken following the accident. The court did not err in admitting the X-rays into evidence. Nor did the court err in overruling defendant’s motion to strike Dr. Foster’s testimony. If plaintiff’s evidence was insufficient in the respect claimed by defendant’s counsel (an issue not assigned on appeal, which we need not decide) the proper way to raise the point was not by a motion to strike all of the doctor’s testimony, all of which was competent and material.

Lastly, defendant complains the court erred in giving Instruction No. P-2 because it permitted the jury, in determining the damages to be awarded plaintiff, to take into consideration future pain and suffering when, defendant asserts, there was no evidence that plaintiff would suffer pain in the future. At the trial plaintiff testified that he was still having pain in his hip and pelvis, and that his hearing and eyesight still bothered him as a result of the accident. The trial was held more than three and a half years subsequent to the date of the collision. Such evidence has been held sufficient to justify the giving of an instruction on future pain and suffering. Palmer v. Lasswell, Mo.App., 267 S.W.2d 492; Kenney v. J. A. Folger Co., Mo.App., 192 S.W.2d 73; Hutchison v. Moerschel Products Co., 234 Mo.App. 518, 133 S.W.2d 701. It will be noted that no claim of permanency was made or submitted.

For the reasons stated, the judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.


author: BRADY, Commissioner.

text:
    Osle FAIRLEY, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 31735.
    St. Louis Court of Appeals. Missouri.
    March 16, 1965.
    Motion for Rehearing or for Transfer to Supreme Court Denied April 12, 1965.

      Gerald D. Morris, St. Louis, for defendant-appellant.
    Samuel A. Goldblatt, St. Louis, William L. Mason, Jr., Galena, for plaintiff-respondent.
   BRADY, Commissioner.

As a result of the first trial of this case, the plaintiff recovered judgment against the defendant in the amount of $2,000.00 for damages for injuries allegedly sustained while she was a passenger on a bus operated by the company. On appeal this court held the submission to the jury on the theory of res ipsa doctrine was proper but remanded the case for retrial on the issue of damages only. See Fairley v. St. Louis Public Service Co., Mo.App., 3S2 S.W.2d 393. On application by the company the cause was transferred to the Supreme Court of this state which held the submission improper and remanded the cause. See Fairley v. St. Louis Public Service Co., Mo., 362 S.W.2d 549. Upon retrial judgment was entered in plaintiff’s favor in the amount of $2,300.00 and the company has perfected this appeal.

The plaintiff pleaded that when plaintiff arose from her seat in order to alight from the bus, she was caused by the carelessness and negligence of the defendant to violently and suddenly come into contact with the seat of the bus and sustained painful and permanent injuries. This is the same pleading under which this case was originally tried. See Fairley v. St. Louis Public Service Co., Mo.App., 352 S.W.2d 393, l.c. 394.

Although this is the second trial of this cause, we need not set out the factual situation at any length. The defendant admits and indeed relies upon its statement that essentially the same factual situation is here presented as was before this court and the Supreme Court as a result of the first trial. This admission is binding on the defendant. Pritt v. Terminal R.R. Ass’n, of St. Louis, Mo., 251 S.W.2d 622. That being the case we will not burden this opinion by restating the general factual situation but will state those facts bearing upon the issues raised in this appeal and refer the reader to the two earlier opinions in this cause for a complete and detailed statement. Those facts necessary to this appeal show that plaintiff was a passenger on a bus operated by the defendant. Plaintiff pulled the cord which operated the buzzer signaling her intention of getting off the bus at the next stop. She was sitting next to a window. When plaintiff stood up, she struck her leg on “something.” She then noticed her leg was cut. The man who had been sitting next to her gave her a handkerchief which another passenger, a Mrs. Thompson, tied around plaintiff’s leg. Later she was taken to a hospital. Plaintiff did not examine the seat. However, Mrs Ruby Thompson, plaintiff’s witness who had aided plaintiff with her injuries, testified that she did examine the seat and found an object protruding from the seat which she described as a jagged flat piece of metal. She testified she examined some of the other seats and found nothing similar.

Dr. E. C. Funsch had appeared as the company’s witness in the first trial. He was deceased at the time of the second trial and his testimony from the first trial was read into evidence at this trial. In his testimony, while being cross-examined by plaintiff’s counsel, the following occurred: “Q Now, Doctor, assuming these facts to be true, Doctor, that there was a woman who boarded the Union Avenue bus, took a seat, and after sitting awhile on the bus started to alight from the bus, getting off the seat, as she was getting off the seat she felt a stinging or some kind of pain right there and the blood started coming out of the leg right there; with reasonable medical certainty, Doctor, is it your opinion that this scar you have found on Mrs. Fairley could have come from that sort of a laceration, or cut, or movement on the bus ? Mr. Schmidt : Object to that, your Honor, that calls for speculation on the part of the doctor. The Court: overruled. Mr. Goldblatt (continuing) : You may answer, Doctor. A Well, if that is where she cut it, then I would have to take her history. Q Now, Doctor, I am going to call your attention to Defendant’s Exhibit A and ask you to look at these two metal clamps on the sides of it, Doctor, and ask you to move the seat this way, please, Doctor, (indicating) (The witness moves seat)The transcript shows that defendant’s counsel broke into the reading of Dr. Funsch’s testimony to object to reading Funsch’s testimony about the seat on the ground that this was not the same seat as that used as an exhibit in the first trial. The objection being overruled, the following occurred: “Q Would a person brushing against one of those, would that cause a laceration? A Sure. Mr. Schmidt: I would like to object to that as calling for speculation on the part of the Doctor. The Court: He is qualified as an expert. The objection is overruled. A I don’t think it takes an expert to tell that. You could skin your shin on that. Q That’s right, Doctor, it doesn’t take an expert to tell that it could, you could get cut from that, isn’t that right? A If it hits right there.”

The plaintiff submitted her case under Instruction No. 1 which required the jury to find that the plaintiff was a fare-paying passenger on the defendant’s bus; that she sat in the seat described in evidence; and that “ * * * it was the duty of St. Louis Public Service Company to exercise the highest degree of care to furnish plaintiff a seat which was reasonably safe and not likely to cause injury * * The instruction continued to hypothesize that if the jury found that the “ * * * seat in which plaintiff sat was not reasonably safe and likely to cause injury in that a metal strip protruded from the bottom of the seat and that said metal strip rendered the equipment or seat of the bus dangerous or unsafe; and if you further find that plaintiff was injured by this metal strip and that such failure and negligence of St. Louis Public Service Company was the proximate cause of said injury * * *." Based upon these hypothesizations the verdict was to be for the plaintiff.

The first allegation of prejudicial error is that the trial court erred in failing to sustain the company’s motion for a directed verdict on the grounds that, for any one of several assigned reasons, the plaintiff failed to make a submissible case on a theory of specific negligence. That matter is not for our ruling. It has been settled by the opinion of our Supreme Court in the first appeal. Therein the court specifically held that plaintiff made a case for the jury on the theory of specific negligence. See Fairley v. St. Louis Public Service Co., 362 S.W.2d 549, l.c. 552, [2]. That being so and since the factual situation presented in the second trial was essentially the same, we must hold the plaintiff made a submis-sible case of specific negligence. Pritt v. Terminal R.R. Ass’n of St. Louis, Mo., 251 S.W.2d 622, [1, 2].

The company then urges that the plaintiff " * * * failed to make a case upon the theory upon which she pleaded the case” and therefore the trial court preju-dicially erred when it overruled “ * * * defendant’s motion for a directed verdict * * The company does not state which motion for a directed verdict it refers to, that filed at the close of plaintiff’s case or that filed at the close of all the evidence. Neither does it give any citation to a page of the transcript so that matter can he discovered. The plaintiff contends that since it only refers to plaintiff’s evidence, the company must have reference to the motion for directed verdict filed at the close of plaintiff’s case. Plaintiff then points out that the company waived any point it may have had as to the overruling of that motion by proceeding to offer evidence. The company was under a duty to state the evidence in the best light to the plaintiff that prevailed in the trial court. Moreover, it is reasonable to assume the company’s counsel was familiar with the rule regarding waiver by proceeding to offer evidence after a motion for a directed verdict offered at the close of plaintiff’s case has been overruled. Accordingly, we will construe this allegation of prejudicial error as going to the trial court’s action in overruling the company’s motion for a directed verdict offered at the close of all the evidence.

In support of this contention the company argues that since plaintiff “ * * * pleaded her case on the theory of res ipsa loquitur (R. 4), according to the Supreme Court opinion in 362 S.W.2d 549 * * * ” she made no case under her pleading because “ * * * all of her evidence concerning a piece of metal on the seat was directed at making a specific negligence case and was contrary to her theory of res ipsa loquitur. * * * ” The company further states that since plaintiff made no attempt to amend her petition to state a cause of action based upon specific negligence, she “ * * * should not have been allowed to go to the jury on any theory.”

As we understand it, the company’s position is that if one pleads a case based upon the theory of res ipsa loquitur and the evidence fails in that regard hut does make a case of specific negligence, that case should be dismissed upon a proper motion to do so unless the plaintiff amends her pleading to state a case based upon the theory of specific negligence supported by the evidence. The point has no merit. It has long been the rule that where a petition is based upon the theory of res ipsa loquitur recovery may be had on proof of specific acts of negligence within the general allegation. Taylor v. Cleveland, C., C. & St. Louis R. Co., 333 Mo. 650, 63 S.W.2d 69; Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 1. c. 101.

The third allegation of prejudicial error deals with the trial court’s action in overruling its obj ection to the testimony by the witness Ruby Thompson covering a piece of metal “protruding” from the bottom of the bus seat. The company contends that the plaintiff pleaded res ipsa loquitur and since the testimony of Ruby Thompson as to this protruding metal goes to specific negligence, it cannot be admitted as it was outside of the scope of the pleadings. It is well settled that a plaintiff may introduce evidence of specific negligence where the pleading was based upon the theory of res ipsa loquitur. Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284 and cases cited at [2], 1. c. 287. Of course, such evidence will not justify a submission upon the pleaded theory. Fairley v. St. Louis Public Service Co., Mo., 362 S.W.2d 549.

The company’s fourth allegation of prejudicial error is twofold. It first refers to the trial court’s action in overruling the company’s motion to dismiss plaintiff’s petition for failure to state a claim upon which relief can be granted and secondly, in denying the company’s motion to dismiss the case. The latter contention is governed by the defendant’s admission that the evidence in the instant case is essentially the same as that given at the earlier trial. The Supreme Court of this state squarely ruled this evidence sufficient to make a case of specific negligence, Fairley v. St. Louis Public Service Co., Mo., 362 S.W.2d 549, 552, [2], and a dismissal would have been in the face of that decision. The trial court did not err in this regard. Neither did it err in overruling the company’s motion to dismiss the petition or in the alternative for a more definite statement. This court and the Supreme Court have held that plaintiff’s petition pleads upon the theory of res ipsa loquitur. In its argument in support of this allegation of prejudicial error the company admits this to be true and, in fact, relies upon it. That being so, the trial court could not properly sustain the motion for a more definite statement. Sansone v. National Food Stores, Inc., Mo.App., 352 S.W.2d 375, 1. c. [5, 6], 378-379, and see Gateway Chemical Co. v. Groves, Mo., 338 S.W.2d 83, cited therein.

The contention is then made that the trial court prejudicially erred in permitting plaintiff’s attorney to read into evidence testimony given at the first trial by Dr. E. C. Funsch and previously set out herein. The company states that it “ * * objected to that testimony at both the first trial and at the present trial.” The record does not so show. As appears above in that portion of the testimony set out there was an objection at the first trial. However, the transcript shows that the company’s counsel did not make any objection at the second trial either at the time plaintiff’s counsel began to read tlie cross-examination of Dr. Funsch from the record of the proceeding at the first trial nor at the time when this specific question and answer was read. Moreover, the company contends that, as stated in its brief, this testimony “ * * * stated in effect that a person could skin their shin on a clamp of a certain seat used by defendant as an exhibit at the first trial * * As is obvious from that portion of Dr. Funsch’s testimony set out above, the doctor did not make' any such answer but stated that if that is where the plaintiff cut her leg, he would “ * * * have to take her history.”

The company does not state that Exhibit A at the second trial was materially different than Exhibit A at the first trial. It makes no contention in its brief that the jagged protruding metal strip that was present on the first seat was not present on the second one. In view of the admission that the evidence was essentially the same, it would seem that the defendant could not reasonably contend that these seats were materially different. In any event, the allegation of error is not based upon any contention or argument that the seats were materially different but entirely on the basis that this was not the same seat as that to which Dr. Funsch referred when he was testifying at the first trial. We find this allegation of error to be without merit.

The last allegation of prejudicial error has reference to the giving of Instruction No. 1. The defendant first attacks this instruction because it does not require a finding of scienter; that is, actual or constructive knowledge on the part of the defendant of the metal strip that caused this injury. It should first be noted that the Supreme Court, when suggesting the general forum of the instruction submitting this case, did not include scienter in its statement. It said (Fairley v. St. Louis Public Service Co., Mo., 362 S.W.2d 549, 1. c. 551): “ * * * The court’s instruction submitting the case should have been, in substance, one that informed the jury that the defendant was liable only if the jury found that the defendant was negligent in having the metal strip, as described in plaintiff’s evidence, on the bus seat and that such a metal strip rendered the equipment of the bus unsafe and that such unsafe condition caused plaintiff’s injury.”

The defendant then attacks this instruction for the use of the language “ * * * and that such failure and negligence of St. Louis Public Service Company * * *." The use of these words clearly related back to that portion of the instruction requiring the jury to find the seat furnished plaintiff was not reasonably safe and likely to cause injury because of this protruding metal strip. The test of the instruction is whether the average juror will correctly understand therefrom the applicable rules of law. Spritz v. St. Louis Public Service Co., Mo., 341 S.W.2d 790, 1. c. 793. This instruction could easily have been more clearly worded and the jury have been faeed with a more plainly stated hypothesization of negligence on the part of the company. However, we are not to read one phrase of an instruction standing alone. It is our opinion that the instruction read as a whole is so worded that the average juror would understand that he was required to find negligence on the part of the company before he was authorized to render a verdict in favor of the plaintiff.

The defendant’s last attacks upon this instruction can be ruled upon jointly. The argument is advanced that the instruction fails to hypothesize sufficient facts upon which the jury could reasonably find the seat was unsafe and fails to require a finding that the metal strip protruded in a manner which would have reached the plaintiff. These contentions have no merit. The instruction required the jury to find the protrusion of the strip rendered the seat “dangerous and unsafe” and required the finding that plaintiff was injured by this strip. The hypothesization the strip protruded is a fact upon which the jury could base a finding the seat was unsafe. The hypothesization that the plaintiff was injured by the strip is certainly sufficient to show that the jury found the strip to protrude in a manner that would reach the plaintiff.

The instruction would seem to be a complete compliance with the guide set out by the Supreme Court in Fairley v. St. Louis Public Service Co., Mo., 362 S.W.2d 549, 1. c. 551. If not, it certainly constitutes a substantial compliance with that guide. We find no error in the giving of Instruction No. 1.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

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

RUDDY, P. J., ANDERSON, J'., and FRANK D. CONNETT, Jr., Special Judge, concur.

WOLFE, J., not participating.