author: STORCKMAN, Judge.

text:
    Gerald Lester HEWITT, Appellant, v. Dr. Edwin C. MASTERS and Bess Masters, Respondents.
    No. 51032.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 12, 1966.
    See also Mo., 386 S.W.2d 9.

      Dalton, Treasure & Bullard, John Hall Dalton, Kennett, for appellant.
    Elvis A. Mooney, Briney, Welborn & Spain, Joe Welborn, James E. Spain, Bloomfield, for respondents.
   STORCKMAN, Judge.

This is a suit to recover damages for personal injuries suffered by the plaintiff when an automobile driven by one of the defendants struck one of two automobiles between which the plaintiff was standing, forcing them together and against the plaintiff thereby severely injuring him. The case was submitted to the jury on the humanitarian theory of negligence. The plaintiff obtained a judgment for $25,000 against both defendants, Dr. Edwin C. Masters and his wife Bess Masters. The trial court sustained the defendants’ motion for new trial on the ground that plaintiff’s verdict-directing instruction was erroneous and the plaintiff appealed from the order granting a new trial.

The accident occurred on July 18, 1961, at about 8 p. m. on Highway 25, two miles north of Aquilla, Missouri, in Stoddard County. At the place in question, the highway runs generally north and south and the pavement is blacktop, 22 feet wide with 8-foot shoulders on each side. It had been raining prior to the occurrence and there was evidence that some rain was still falling.

The plaintiff had gone from Malden in his Dodge pickup truck, accompanied by his son Harry Austin Hewitt, to a point north of Dutchtown to tow a Ford convertible back to Malden. The towline consisted of a chain running through a section of pipe extending from the rear of the Dodge truck to the front of the Ford. On the return trip to Malden, the plaintiff drove the Dodge south on Highway 25 and his son occupied and steered the Ford which was being towed. It appears they stopped a time or two to check the equipment. The last time was on the south slope of a hill north of Aquilla. The plaintiff and hi's son testified that both motor vehicles were driven off of the pavement and stopped completely on the west shoulder headed south and that taillights and headlights were lighted on both vehicles. While the plaintiff was standing between the two vehicles near the towline, the defendants’ DeSoto automobile struck the Ford convertible in the rear and knocked it violently forward against the rear of the Dodge thereby injuring the plaintiff.

Dr. Masters and his wife Bess were joint owners of the DeSoto automobile. Mrs. Masters had served as a judge at a special election held on July 18, 1961, in Puxico Precinct of Stoddard County. At the time in question, she and Dr. Masters were taking the ballots to the courthouse in Bloomfield. Dr. Masters was driving the DeSoto south on Highway 25 at the time it overtook and crashed into the rear of the Ford convertible.

The main factual disputes were whether the Dodge truck and Ford automobile were on or off the pavement at the time of the collision, whether the taillights were burning on those vehicles, and the distance from the crest of the hill south to the point of collision. There was evidence that a southbound car could be seen 300 to 400 feet north of where the Ford convertible was stopped. The plaintiff’s evidence was that he had been stopped beside the road for about five minutes and it was three to four seconds from the time the Masters’ car came over the hill until the collision occurred. The defendants’ evidence was that the distance from the crest of the hill to where the collision occurred was about 105 feet. The defendant testified he was driving between 45 and 50 miles per hour immediately before the collision. The left two feet of the front of the Masters’ car cleared and did not come in contact with the rear of the Ford convertible.

The plaintiff’s evidence was that all the lights on his two cars were burning at the time except the two taillights on the right side of the Dodge truck. The defendants’ testimony was that no lights were on the vehicles and the first knowledge they had of the presence of the automobiles was the reflection of the DeSoto headlights on the taillights of the Ford as the Masters’ car came over the crest of the hill. The plaintiff’s evidence was that he was standing between the two automobiles which were completely off the pavement when the collision occurred. On the other hand, the defendants’ evidence was that the two vehicles between which the plaintiff was standing were on the pavement in the western or southbound lane of travel. The plaintiff’s legs were broken and crushed, necessitating long hospital confinement and numerous operations; however, since no question is presented as to the amount of the verdict, we need not review the medical evidence. The submission under the humanitarian doctrine was on the hypothesis that the defendant driver “could have swerved his vehicle to the left, and could thereby have avoided the collision” but negligently failed to do so. The eastern or northbound lane of traffic and the east shoulder of the highway were not obstructed prior to the collision.

The trial court overruled the defendants’ motion for a directed verdict in accordance with their motion filed at the close of all the evidence but sustained the defendants’ motion for a new trial “for the reason that the Court erred in giving Instruction No. 2 at the request and insistence of the plaintiff, said instruction containing the following words ‘was standing between two automobiles mentioned in evidence either on the shoulder or on the pavement — ’ and said portion being error in that it was not based on the pleadings or proof offered by the plaintiff, but in fact that portion of said instruction which said ‘or on the pavement’ was in direct conflict with the pleadings and the evidence of plaintiff, and for the further reason that the facts and the evidence did not justify the submission of the case on the humanitarian doctrine with reference to the theory that the accident happened on the shoulder of the road.”

The trial court’s statement that the evidence did not justify a humanitarian submission on the theory that the accident happened on the shoulder of the highway was made before the transcript was prepared. The transcript before us reveals that this theory is amply supported by the evidence. As previously stated, the plaintiff testified the Dodge truck and the Ford convertible were on the shoulder completely off the pavement and that he was standing between them checking the towline. He further stated he saw the lights on the defendants’ car when it came over the crest of the hill, that it was “lined up” behind the Ford convertible for three or four seconds before the collision, and he had raised up “to flag him on through” when the accident happened. It is conceded that the Masters car crashed into the rear of the Ford. Since the plaintiff was the prevailing party at the trial, he is entitled to have the evidence viewed most favorably to him and is entitled to all reasonable inferences therefrom.

The respondents’ first contention in support of the granting of the new trial is that instruction 2, the plaintiff’s verdict-directing instruction, erroneously commingles primary and humanitarian negligence. The import of this contention as expanded in the written argument is that, if plaintiff and his vehicles were located on the shoulder, the defendants’ breach of duty was in leaving the pavement, going onto the shoulder and striking the plaintiff which would be primary negligence; and, if the plaintiff and his vehicles were on the pavement in the path of defendants’ auto, the duty was to avoid striking plaintiff’s vehicles by swerving, and the breach of that duty would constitute humanitarian negligence.

There is no evidence that the defendants’ car swerved onto the shoulder in close proximity to the plaintiff’s vehicles. The evidence is sufficient to support a finding that the defendants had an opportunity to discover the plaintiff and avoid the collision by swerving to the left whether the plaintiff was on the shoulder or the pavement. That is the issue submitted by the instruction. The instruction does not hypothesize at what time or in what manner the defendants’ automobile came onto the shoulder, if it did do so, or that it swerved to the right when it should have swerved to the left as the defendants seem to imply. This is unlike the case of Lane v. Wilson, Mo.App., 390 S.W.2d 943, 950, cited by the defendants, where the court stated that if the defendant was negligent in swerving to his left and stopping with the front portion of his automobile across the imaginary center line, the act of doing so would constitute primary negligence and would not make a case under the humanitarian doctrine. The instruction in the case at bar did not, directly or by implication, commingle primary negligence with humanitarian negligence, and it is not erroneous on that score.

Next the defendants contend that instruction 2 was not supported by evidence tending to prove that the plaintiff was in a position of imminent peril while he was standing on the shoulder of the highway. The point is further explained in the written argument by the assertion that the plaintiff should not have been permitted to instruct that the shoulder of the highway was “within the zone of imminent peril from Respondents’ automobile traveling south on the paved portion of said highway.” The instruction is not and need not have been limited to a hypothesis that the defendants were driving on the paved portion. It provides that the jury find that the defendant Edwin C. Masters was driving “his motor vehicle in a southerly direction at the time and place mentioned in the evidence”. The plaintiff’s evidence would support a finding that he was driving on the shoulder. On the other hand, the defendants’ evidence was that the Masters automobile was being driven on the pavement. Regardless of where the plaintiff was standing, the evidence demonstrates that he was in a position of imminent peril. See Hinrichs v. Young, Mo., 403 S.W.2d 642 (decided June 13, 1966).

In support of this contention, the defendants cite cases holding that a humanitarian case cannot rest solely on speculation, conjecture and surmise regarding such basic elements as plaintiff’s position of imminent peril and where it began. The defendants cite such cases as Lane v. Wilson, Mo.App., 390 S.W.2d 943; Bunch v. Missouri Pacific R. Co., Mo., 386 S.W.2d 40; Davis v. Quality Oil Co., Mo., 353 S.W.2d 670, and McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704. These cases in general involved situations where there was no opportunity for the defendant to avoid the accident after the act occurred which imperiled or endangered the plaintiff.

There can be no doubt that the plaintiff was in a position of imminent peril as he stood between his two vehicles directly in the path of the defendants’ car moving swiftly toward them. The evidence was sufficient to prove that fact. Leaving out of consideration for the moment whether the plaintiff was entitled to the alternative submission as to his position, the main issue for the jury’s determination was whether to believe the plaintiff’s or the defendants’ evidence regarding the distance from the crest of the hill to the place where the plaintiff’s vehicles stood and at what place and time they were discoverable. The defendants’ opportunity to avoid the collision by swerving to the left depended chief-ly on this determination. We hold the evidence was sufficient to support a finding that the plaintiff was in a position of imminent peril regardless of whether he was off or on the pavement. The main factual issue for the jury was whether his position of peril was discoverable in time for the defendant driver to swerve to the left and avoid the collision.

The defendants’ next contention is that the instruction was erroneous in' that it permitted a recovery on evidence directly in conflict with plaintiff’s “pleadings and evidence on material facts”. Stated as a separate point is the related and supporting contention that the plaintiff’s testimony that he was on the shoulder and not on the pavement when the collision occurred amounted to a judicial admission depriving him of evidence to the contrary because the testimony was not a mere estimate or opinion but was understanding^ and unequivocally given.

As the defendants impliedly recognize, a plaintiff’s testimony consisting of estimates of speed, distances, time or position does not conclusively bind him, and he may avail himself of other testimony given by his own or his opponent’s witnesses. Migneco v. Eckenfels, Mo., 397 S.W.2d 682, 686 [4]; Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 31 [4], 32 [7]. A party is not precluded from relying on more favorable testimony of other witnesses unless such other testimony is inconsistent with his theory of the case or contrary to physical facts. Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280 [2]; Smith v. Siercks, Mo., 277 S.W.2d 521, 525 [3].

The plaintiff’s testimony that his motor vehicles were on the shoulder, completely off the pavement, did not rise to the dignity of a judicial admission which is a more or less formal act done in the course of judicial proceedings which waives or dispenses with the production of evidence and concedes for the purpose of the litigation that a certain proposition is true. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 917 [19-21]; Smith v. Siercks, Mo., 277 S.W.2d 521, 525 [1-3]. The defendants did not rely on the plaintiff’s statement but disputed it, and it was for the jury to say which version of the facts was true. Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 20 [3]; Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 31 [4]; Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1019 [9].

The plaintiff’s petition contained nine specifications of primary negligence; he also pleaded the humanitarian doctrine of negligence based on defendants’ failure to swerve or turn their automobile aside so as to avoid the collision. Both defendants pleaded contributory negligence, and in their motions for a directed verdict at the close of all the evidence asserted that the plaintiff was guilty of contributory negligence “in failing to exercise' the highest decree of care for his own safety by voluntarily placing himself in a position of imminent peril, between the pick-up truck and the Ford automobile, on the paved and travelled portion of said highway in the nighttime, when the plaintiff, knew, or in the exercise of the highest degree of care he should have known, that there was present and immediate danger of a collision between a southbound vehicle and such vehicles.” The motions for a directed verdict were overruled although there was evidence to support the defense of contributory negligence. Since primary negligence was not submitted, it was abandoned, and the plaintiff went to the jury on the humanitarian theory of negligence which permits a recovery even though the plaintiff was negligent in getting into a position of imminent peril which fact was hypothesized by instruction 2.

We have further concluded that the defendants’ testimony that the plaintiff and his vehicles were on the pavement was not inconsistent or “at war” with the theory of humanitarian negligence submitted by plaintiff’s instruction 2. The basic theory submitted was that the plaintiff standing between his two vehicles was in a position of imminent peril, and that the defendant driver in the exercise of the highest degree of care could have discovered plaintiff’s peril in time to have safely swerved to his left and avoided the collision and injury but that the defendants negligently failed to do so. Whether the plaintiff was on the shoulder as he testified or on the pavement as indicated by the defendants’ evidence made a difference laterally, that is, from east to west of perhaps five to ten feet; but it did not make any material difference in the distance longitudinally, that is, from north to south. The material and decisive fact question for the jury’s determination was the disputed distance from north to south between the plaintiff’s and the defendants’ motor vehicles when plaintiff’s peril was discoverable and effective action to avoid the collision could have been taken.

The plaintiff’s evidence tended to prove that a person at the crest of the hill could see an automobile more than 300 feet south of him whether it was on the shoulder or on the pavement. In these circumstances the hypothesis that the plaintiff and his vehicles were on the pavement was not inconsistent or “at war” with the ultimate question on which the defendants’ liability depended under the humanitarian rule, and the plaintiff was entitled to adopt it as an alternative. Migneco v. Eckenfels, Mo., 397 S.W.2d 682, 686 [S]; Crook v. Dooley, Mo., 389 S.W.2d 809, 813 [6]; Ayres v. Keith, Mo., 355 S.W.2d 914, 918 [4, 5]; Stodgell v. Mounter, Mo., 344 S.W.2d 100, 102 [1, 2], Migneco v. Eckenfels involved an automobile collision submitted on a negligent failure to stop or swerve. There was great contrariety in the evidence as to the location of plaintiff’s automobile when the collision occurred, but a submissible case was held to have been made under the humanitarian doctrine. Other cases cited have made similar rulings.

This case involves a conflict between the testimony of two parties which is not an unusual occurrence. It is common knowledge that witnesses in the utmost good faith sometimes differ substantially in their accounts of what they saw or heard. The record is not without circumstances tending to explain the plaintiff’s adoption of the alternative location of the vehicles. Regardless of which alternative the jury believed, the plaintiff’s basic theory of recovery was not destroyed or impaired as a matter of law.

The plaintiff urges that in no event should instruction 2 be held erroneous because Missouri Approved Instructions would be applicable under which the words “either on the shoulder or on the pavement” would be omitted entirely, citing MAI No. 17.15. See also Migneco v. Eckenfels, Mo., 397 S.W.2d 682, 686 [5]. The defendants do not agree to this proposition, but it is not necessary to anticipate and determine that question now. It is sufficient that we find in the circumstances of this case that the inclusion of the location of the plaintiff and his motor vehicles in the alternative was not misleading or prejudicially erroneous for any of the reasons assigned.

Accordingly the order granting a new trial is reversed and the cause is remanded with directions to reinstate the verdict and judgment for the plaintiff.

All of the Judges concur.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    FORT WORTH LLOYDS INSURANCE COMPANY, Appellant, v. Louis Earl WILLHAM et ux., Appellees.
    No. 7616.
    Court of Civil Appeals of Texas. Amarillo.
    June 6, 1966.
    Rehearing Denied Sept. 6, 1966.

      Crenshaw, Dupree & Milam, Lubbock, Cecil Kuhne, Lubbock, of counsel, for appellant.
    Key, Carr & Clark, Lubbock, Aubrey J. Fouts, Lubbock, of counsel, for appellees.
   CHAPMAN, Justice.

This is an appeal from a judgment based upon a jury verdict for insureds, Louis Earl Willham, et ux., against Fort Worth Lloyds Insurance Company in a suit upon an insurance policy covering a vacant residence owned by appellees Willham in Lubbock. The damages awarded resulted from water leakage throught burst water pipes in the attic connected with the hot water circulating system of the residence. The discovery of the flooded house was made on December 21,1964. The week previous the temperature in Lubbock had been down to 12° or 14° above zero.

Appellees had moved out of the state, placed their home on the market and listed it for sale with a real estate agent. They left one key with the agent and one with her brother-in-law and sister, Mr. and Mrs. Robert Mampel, so they could check on the place during the time it was vacant. The house was centrally heated by gas. They had that service and the telephone service terminated. The water and electricity were left on for the convenience of the real estate agents showing the house to prospective purchasers. The agency with which it was first listed did not sell the place within three months, so it was then listed with Pat Garrett, another real estate agent. He suggested to the owners it might expedite the sale if the house was painted, so their real estate agent, with appellees’ permission, employed painters to paint the house.

In July Mr. Mampel noticed water leaking from the water-evaporated air conditioner mounted on a stand outside of the house. He repaired the tubing. Approximately two weeks later he went back and found the plastic line had been pulled loose. At that time he cut the water supply to the house off at a valve in the back yard, then went into the house and opened the faucets in the kitchen and two bathrooms and flushed the water out of the commode.

In August Mr. Mampel went back after a gardener had mowed the lawn and discovered the water supply to the house had been cut on. He cut it off and went back through the same procedure inside and outside the house again. In October or early November he went back and checked on the house again and primarily checked to see that the water supply to the house was off and the faucet open in the kitchen. It was a dual type faucet that turned on.both the hot and cold water by pushing the lever upward. The water supply to the house was off and the kitchen faucet open.

Mr. Mampel testified that about 5:30 or 6:00 o’clock p. m., December 21, his 17-year-old son while driving by the subject house saw two men “ * * * in there — by their front door, and he stopped to see what was going on, and he looked in and — he didn’t know the men, who they were, but he looked in the hallway, the entrance hall, was flooded — he came home and reported to us that there was water all over the Willham’s home * *

Don Anderson, foreman of a plumbing company and with twenty years experience as a plumber, repaired the burst pipes in the attic. He testified that cutting off the stop and waste valve outside the house drained the cold water out of the house and opening any two faucets inside the house drains the hot water circulating system. He said opening one faucet probably would drain the hot water but there is a possibility of an air lock. He said opening a valve at the water heater probably would not drain the hot water system as well as if the faucets in the house were open. He said the circulating system held about two . or three gallons of water and the probability was if the water was cut off outside and the circulating system froze with one faucet open the pipes would not burst and no damage would be done. He testified in effect that in his opinion the water was on to the house when the freeze took place or there could not have been the extensive flooding of the house and as much damage. The policy of insurance in question under Section II, Subsection A of “Exclusions” contained an exclusion clause providing:

“Exclusions: This policy does not insure against—
A. Loss to either plumbing or heating systems including appliances, or by leakage or overflow from such systems or appliances, caused by freezing while the described building(s) is vacant or unoccupied, unless the insured shall have exercised due diligence with respect to maintaining heat in the building(s) or unless such systems and appliances had been drained and the water supply shut off.” (Emphasis added.)

Another very material condition to this law suit shown under Subsection A of Section VI “Other Provisions” which we shall call the “Prejudiced” clause in the policy provides:

“Other Provisions:
A. Control of Property: This insurance shall not be prejudiced by any act or neglect of any person (other than the named insured) when such act or neglect is not within the control of the named insured.” (Emphasis added.)

The jury found (1) the water supply to the house had been shut off prior to the time the pipe froze and burst; (2) that the water system had been drained prior to the time the pipe froze and burst; and (3) that the water supply was not turned on prior to the loss by anyone under appellees’ control.

Under the Exclusions A clause above quoted we need not give any consideration to that part concerning diligence with respect to maintaining heat in the building. It is admitted by appellees that they had the heat shut off. However, the word “or” used in the disjunctive separates that clause from the one providing “unless such systems and appliances had been drained and the water supply shut off.”

If we understand appellant’s complaint concerning the clause with respect to the drainage of the systems and appliances and shutting off the water supply, it is that the court committed reversible error in denying an instructed verdict for the reason “ * * * there is no evidence that the plumbing system was drained and the water supply shut off at the time of the loss by leakage caused by freezing, as provided by the exclusion.”

We are unable to agree with appellant’s contention in this respect. The policy does not insure against loss unless such systems and appliances had been drained and the water supply shut off. (Emphasis added.) The clause is in the past tense. There is probative evidence from which the jury could and did find that the water supply to the house had been shut off and the systems and appliances drained prior to the time the pipe burst. The general rule of constrution of such insurance policies has been stated by the Supreme Court of Texas in Providence Washington Insurance Company v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, as follows:

“It is a settled rule in this state that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. * * * It is also well settled that exceptions and words of limitation will be strictly construed against the insurer.”

Applying the rules of law just quoted to the facts above related, we are compelled to the conclusion that the evidence supports the findings of the jury upon the first two issues submitted. To follow appellant’s theory would be to hold the exceptions to the exclusions under discussion as surplusage and meaningless. Had the water supply been shut off and the appliances drained at the time of the freeze, there could have been no freezing of water in the pipes and therefore could never have been a loss if the exclusion requires that the water supply be shut off and the pipes drained at the particular time of the freeze.

“Insurance policies being contracts, they are governed by the rules of interpretation that are applicable to contracts generally, * * 32 T.J.2d, Insurance, Sec. 54, p. 102 and cases cited in the footnote under such statement.

The courts are without authority to needlessly reject any words or terms used in contracts by the parties or delete any clause therein as surplusage, unless such action is judicially mandatory. Williams v. J. & C. Royalty Co., Tex.Civ.App., 254 S.W.2d 178 (writ ref.) and cases there cited. We therefore hold that issues one and two should have been submitted to the jury; that there was probative evidence to support them; and that the verdict as to those issues was not against the great weight and preponderance of the evidence. It is immaterial that the brother-in-law was the one who terminated the water supply to the house and drained the systems and appliances. He was carrying a key to the house and we think it must be said that he was acting as appellees’ agent insofar as his actions in respect to the water drainage of the house. He testified in effect that they left him the key in order that he might check on the house for them. It is difficult to conceive of a more important area to check than to see that the water supply was cut off and the pipes drained in a city where the temperature goes as low as 18° to 20° below freezing. This is especially true in a hot water circulating system such as appellees’ house, where the water circulated from the hot water heater up through the attic and then back down into the hot water container and where the agent knew there was no heat in the house.

The record with respect to the third issue presents a more difficult problem. None of the parties have cited us to any authorities construing a clause such as the “Prejudiced” clause of Section VI under “Other Provisions” of the policy upon which Special Issue 3 was based or any clause analogous thereto. In our independent research we have been unable to find any case construing such clause.

Appellees contend by brief they were not required to prove that the one turning the water back on was not under their control. We do not so interpret the policy. The clause under consideration is just as much a part of the contract as the exclusions clause, and we believe when considered in connection therewith requires a showing under this record that the one turning the water back on was not within the control of appellees. There being no direct evidence, we must look to the circumstances. We hold such circumstances are such as required the trial court to submit the issue but we believe the answer of the jury is contrary to the great weight and preponderance of the evidence.

On passing on this question we must weigh and consider the evidence which supports the verdict and that which does not, and must set aside the judgment and remand the case if after such consideration we conclude the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

One of the keys to the house at the time was under the control of the real estate agent, Pat Garrett. The record shows there was a lock box on the door for the benefit of all real estate agents in multiple listing and on which a master key worked. The house was in the multiple listing service, as we understand the record. This means that all real estate agents in Lubbock in multiple listing had a master key to open the box on the door containing the key to the house, “ * * * where any of them can come by and show the house.”

The real estate agent with ap-pellees’ consent also employed painters who had been working inside the house shortly before the pipes burst. We thus have the painters, Mr. Garrett, and all other multiple listing real estate agents with access to the house and premises. We believe the jury had the right under the circumstances to pass on the question of whether some of these people turned the water hack on. Still, appellees would not be prejudiced within the clause under discussion unless within the terms of the policy they exercised control over all these people within the terms of the “Prejudiced” clause of Section VI.under “Other Provisions.” We believe it must be said that they at least exercised control through their agent of the workmen who had been painting the house. Since they were employed by the real estate listing agent with the consent of appellees, they certainly had the authority to control them through their agent, even to the extent of requiring that they not turn the water on in the house had they desired to make such condition in the painting agreement. Furthermore, we think it most improbable that painters would work the customary eight hour day without turning the water on in the house for either the use of the commodes, the lavatories, for drinking purposes, or for inside paint mixture without instructions not to do so, or not to cut it on without cutting it back off.

In a case construing an automobile liability policy the Supreme Court of Texas in American Fidelity & Cas. Co. v. Traders & Gen. Ins. Co., 160 Tex. 554, 334 S.W.2d 772, 775 has said:

“Black’s Law Dictionary (4th Ed., 1951) defines ‘control’ as ‘Power or authority to manage, direct, govern, administer, or oversee.’ In State v. Camper, Tex.Civ.App., 261 S.W.2d 465, 468, it is stated that ‘control’ is ‘synonymous with management.’ ”

The word “control”, citing Webster’s New International Dictionary and Words and Phrases, has been defined in Board of Insurance Commissioners v. Duncan, Tex.Civ.App., 174 S.W.2d 326, 329, (writ ref.) as follows:

“ ‘To exercise restraint or deciding influence over; to dominate; regulate; to hold from action; to curb; subject or overpower.’ Words and Phrases, Perm.Ed., vol. 9, page 434, says: ‘To “control” means to exercise restraint or deciding influence over; to dominate; regulate; to hold from action; to curb; subject or overpower.’ ”

Neither of these definitions do violence to, but to the contrary, we believe, support our holding that under the “Prejudiced” clause appellees through their listing agent exercised control, or had the authority to exercise control over the painters with respect to turning the water on in the house, and were therefore within the control of the insureds.

The only testimony that others were in or around the house after the water was turned off last was the evidence concerning the two men observed by Mr. Mampel’s son on the day he discovered the flooded house, and that testimony is not even perfectly clear as to whether they were the painters or not or were inside or outside the house.

If we are correct in our construction of the word “control” as it relates to the “Prejudiced” clause, to the effect that the insureds were obligated under the record to negative the fact that whoever turned the water back on was not within their control, then the judgment rendered is contrary to the great weight and preponderance of the evidence. Surely, if the painters did not turn the water back on, appellees could have proved the fact. We feel the case needs further development to insure justice to all the parties.

Accordingly, the judgment is reversed and remanded for a new trial.


author: LANGDON, Justice.

text:
    R. T. KIRKPATRICK et al., Appellants, v. W. J. PARKER et al., Appellees.
    No. 16740.
    Court of Civil Appeals of Texas. Fort Worth.
    July 15, 1966.
    Rehearing Denied Sept. 16, 1966.

      Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellants.
    Coleman & Whitten, and Royce Whitten, Denton, for appellees.
   OPINION

LANGDON, Justice.

This appeal is from dissolution of temporary restraining order and denial of temporary injunction. Appellants, the plaintiffs instituting this suit, are all taxpayers of the Lewisville Independent School District and owners of property therein, and, including the original plaintiffs and those who later joined in, 22 such taxpayers are appellants. These plaintiffs, having received notice of proposed increases in the valuations of their property for purposes of the 1965 ad valorem tax, brought suit to restrain the Tax Assessor-Collector, the Superintendent of Schools, and the Board of Trustees from proceeding with assessment of their properties for tax purposes upon the proposed basis, which was alleged to be arbitrary, discriminatory and fraudulent, and based upon a plan or scheme omitting entirely complete categories of taxable property, and for mandamus to require defendants to place on the tax rolls of the District for 1965, all of the taxable property owned by persons living in the District.

After hearing, the trial court dissolved the temporary restraining order and denied temporary injunction. From its said order this appeal has been duly perfected.

By three points of error appellants contend that the trial court erred in denying temporary injunction when the record showed (1) uncontrovertedly that many categories of non-exempt property were intentionally omitted from assessment and taxation; (2) that the valuations proposed to be assessed against the properties of appellants were grossly excessive, arbitrary, and discriminatory; and (3) because the record establishes that injunctive relief was timely sought.

We affirm.

In their original petition the plaintiffs alleged that the “Defendants have failed entirely to assess monies, bank accounts, and other types of non-exempt personal property held and owned by residents of the district, in violation of the statutory and constitutional requirements that all taxable property in the district be taxed uniformly and equally according to its real value. They have deliberately adopted a plan for the omission from the tax rolls of such categories of property, there being a large volume thereof in the district, thus causing substantial injury to Plaintiffs by requiring higher taxes upon them than would otherwise be necessary to raise the same total tax revenue if all such taxable property were assessed and taxed, and amounting to a denial of due process and equal protection to Plaintiffs, discrimination, and denial of rights guaranteed by the Constitution of Texas and the United States.” The record reflects that suit was filed on October 14, 1965. That 84% of all taxes in the District have been paid and all but 4 of the plaintiffs have paid their 1965 taxes and one of the four made a partial payment on his tax.

The testimony upon the temporary injunction hearing reflected that individually owned bank accounts, stocks and bonds, annuities, household and kitchen furniture in excess of $250.00, notes receivable and jewelry were not taxed in 1965 nor in any previous years and no effort had been made to do so except for business inventories. Livestock is taxed and some automobiles. An effort is made to tax individually owned boats according to lists furnished by the State. Some are taxed. Others are not. Mail addressed to many is returned and the Tax Assessor-Collector “can’t pin them down.” He has made every effort to do so. He stated there was money in the bank on January 1, 1965, and that he had obtained a statement from the bank and assessed the money on deposit.

The Tax Assessor-Collector for the District is aware of the fact that all of the items excluded from the tax roll are legally subject to tax. He has never been instructed by the School Board to assess such property or not to assess it. Under the evidence (1) there was no plan or intention in this regard; (2) such a plan had not been discussed; and (3) it was not deliberate. The Board has never complained to or criticized him for not including such items for taxes. The Board of Equalization recognized that there were taxable categories of property excluded but had never suggested it be omitted. If rendered it would be taxed. There was no preconceived plan or scheme to omit any property.

The record reflects that the President and members of the Board of Trustees and the plaintiffs owned personal property in the excluded categories. It further reflected that not a single one of the plaintiffs rendered any property, personal or real, for 1965 taxes. It was therefore rendered and assessed by the Tax Assessor-Collector and the Board of Equalization did not raise such valuations. Not one of the appellants protested any plan of taxation before the School Board or before the Board of Equalization and they offered no testimony, sworn or unsworn, before such Board of Equalization to show their properties were excessively valued.

At the hearing on the temporary injunction only four of the appellants offered any testimony. Only 13 or 14 of the plaintiffs appeared before the Equalization Board although notices were mailed to all of them. The four appellants appearing in court testified that they owned nonexempt personal properties, jewelry, stocks, bonds, money in the bank etc., as of January 1, 1965, yet they did not render it. One of the plaintiffs who testified he had money in the bank was then asked how much he had in the bank on January 1, 1965, and declared the question was too personal. Not one of the plaintiffs had in past years ever rendered items in the excluded categories nor paid any taxes thereon. At least two of the four who testified stated they had never known of any one rendering such personal items for taxes. Plaintiffs were aware of the exclusion in past years but had never previously complained about it. Their complaint was not initiated on this occasion until after they had received notice of a proposed increase in the assessed valuation of their property.

The plaintiffs failed to offer any proof in support of the allegation that there was a “large volume” of property in the District in the excluded categories. They failed to show the identity, location, ownership or value of any such property or that the exclusion of such property caused them substantial injury.

The burden was on the plaintiffs to show that the omission of personal property from the tax roll was harmful to them. In Clark v. Cedar Hill Independent School District, Tex.Civ.App., 295 S.W.2d 671 (Dallas 1956, ref., n. r. e. ), it is stated: “There is no evidence in the record to show how much personal property escaped taxation, to whom it belonged, or what effect its omission had on any of appellants — that is, whether he had to pay more or less by reason of the omission than he otherwise would have been required to pay. Failing to show individual injury, no one of appellants can escape payment of his taxes because of the omission of personal property from the tax rolls, nor is he entitled to an injunction. Whelan v. State [155 Tex. 14], 282 S.W.2d 378; City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; Hutchinson v. City of Dallas, Tex.Civ.App., 290 S.W.2d 253.”

The Distict’s Board of Trustees had for many years considered a program of reevaluation for the District and had discussed such a program in open meetings of the Board prior to 1965. One of the plaintiffs was a former member of the Board but neither he nor any of the other plaintiffs availed themselves of the opportunity to appear before the Board and protest the program of re-evaluation.

In May of 1965 the Board employed a firm of appraisers to assist the Tax Assessor-Collector in the program of re-evaluation of all property in the District outside the city limits of Lewisville and thereafter for some time they were actively engaged with their work throughout the District. During this time no protests were made by any of the plaintiffs. The City of Lewisville had previously employed a firm to appraise the property within the city limits and the School District by paying a portion of the expenses for such appraisal received a copy of the appraised values possibly a year ago or within the year. It was brought up to date. When the work of the appraisers employed by the District for the area outside the city was completed the values placed upon the tracts of land were submitted to the Tax Assessor-Collector of the District. These values were considered by him in the light of his own knowledge of the property involved and the records of his office after which he assessed the property. He made about twenty-five changes in the values submitted.

The Board of Equalization had two or more meetings in which they went over the assessed values prior to the time the individual taxpayers were given the opportunity to appear before them. The Board did not increase any of the assessed values. It decreased several in instances where the taxpayer appeared and presented some basis for reduction.

Prior to initiation pf the re-evaluation program all of the property in the city and the improvements in the rural areas were assessed on the basis of market value whereas land in the rural areas was not. It was valued at so much per acre regardless of its true market value. By its program of re-evaluation the Board sought to equalize and place values of all property on a more uniform basis for taxation purposes.

All of the plaintiffs were owners of tracts of land in the rural areas used for farm or ranch purposes. The market value of their land was considerably higher than the values placed upon it in previous years for tax purposes.

Unquestionably the Tax Assessor-Collector for the District and the firm of appraisers employed to assist him in the re-evaluation program were well qualified to appraise the properties in question. The members of the Board of Equalization were very familiar with the land involved. Some of them grew up on it. They were so familiar with it that they could tell you the color of a barn on a particular farm. The qualifications of the above firm and individuals responsible for the appraisals and assessments were not challenged.

Under the record in this case, the property of the plaintiffs was uniformly and correctly valued and assessed on the basis of its fair market value in line with other comparable properties in the community. The chief complaint of the plaintiffs is that the assessed values are too high for farm and ranch property because the productive capacity of the land will not justify such assessed values. In effect they seek a double standard for fixing tax values rather than a uniform standard based upon fair market value which is arrived at by thorough investigation of all factors upon which such values are based. There is no evidence to the effect that the valuations are arbitrary, discriminatory or fraudulent as alleged by plaintiffs. The fact that such valuations are higher than in the previous year is not in itself sufficient to support such allegations.

Under the evidence in this record the Board of Trustees for the District did nothing more than attempt to appraise the property of the entire District and to assess it on the basis of its fair market value. It was assessed for taxes at 55% of market value.

“The judgment of a board of equalization on a particular assessment is conclusive unless there is a showing of fraud, or other abuse. Injunctive relief will not be granted where it does not appear that the board has abused its discretion.” 51 Tex.Jur.2d 513, § 150. See also 51 Tex.Jur.2d 526, § 161 to the effect that mere conclusions or possibility of injury, unsupported by allegations of specific facts, will not warrant issuance of an injunction.

There is no testimony in this record to indicate that the value of all of the property in the District including the plaintiffs’ was not ascertained by the same standard or that the Board arbitrarily adopted a system of valuation that resulted in fixing values on the appellants’ property without regard to and in violation of the principle of uniformity and equality required by the Constitution.

“A board of equalization functions in a quasi judicial capacity in fixing valuations. Having large discretionary powers, the decision of the board on a particular assessment, in the absence of fraud or irregularity, is ordinarily conclusive. Since the board, rather than the courts, has the duty of making valuations, it is not within the jurisdiction of the courts to exercise any supervisory care over the valuations made by the board so long as it acts within the scope of the powers conferred on it by law, and in obedience to what may reasonably be considered an honest judgment. The fact that there is a difference of opinion as to the reasonableness of valuations does not warrant judicial interference. Thus, in the absence of any other showing, a landowner may not complain that the board assessed his property at one hundred per cent of its true value. Further, the fact that the board took into consideration the amount of revenue to be raised is not a ground of objection, where it appears that the board was diligent and careful to equalize values on a fair basis. If a taxpayer alleges that the assessed valuation is excessive, the burden is on him to show that the assessment is so flagrantly wrong as to come within the condemnation of the law. In the absence of fraud or discrimination, a slight excess in valuation will not defeat a levy. And where the evidence on this issue is conflicting, the question is one of fact for the jury to determine.” 51 Tex.Jur.2d 509, § 148.

A plan of taxation excluding the personalty here involved is not as a matter of law arbitrary, illegal and fundamentally defective and erroneous but involves a question of fact for the court or jury.

The recent case of Kelly v. A. & M. Consolidated Independent School District, Tex.Civ.App., 398 S.W.2d 438 (Waco 1966, ref., n. r. e. ), which was tried to a jury, involved a similar case in which it was undisputed that similar items of personalty were generally omitted from the District tax rolls and apparently no complaint of omission had been made previously. Page 439 of the opinion states, “Where the valuation fixed by the board of equalization is attacked on the ground of unlawful or arbitrary discrimination it is not sufficient to show ‘even that other property was omitted from the tax rolls altogether,’ it is held, ‘except where the omission was the result of a deliberate and arbitrary plan or scheme to permit certain classes of property to escape their fair share of the tax burden.’ State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 and case cited. In Whelan v. State, 155 Tex. 14, 22, 282 S.W.2d 378, 381, reversal resulted from exclusion of evidence that the omission 'was deliberate, arbitrary and systematic,’ and the court emphasized that the taxpayer was entitled to relief where it was shown that there was a ‘deliberate and arbitrary preconceived plan.’ In City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416, the ‘deliberate adoption of a plan for the omission from the tax rolls’ was the criterion announced.”

The trial judge was the judge of the facts proved and of the reasonable inference to be drawn therefrom.

In our opinion the action of the trial court in dissolving the temporary restraining order and in denying application for temporary injunction was proper and the trial court did not abuse its broad discretion in ruling as it did.

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


author: GRISSOM, Chief Justice.

text:
    SHOPPERS FAIR OF NORTH HOUSTON, INC., et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 4071.
    Court of Civil Appeals of Texas. Eastland.
    July 22, 1966.
    Rehearing Denied Aug. 26, 1966.

      Jay S. Fichtner, Dallas, for appellants.
    Homer T. Bouldin, Richard B. Miller, William A. Olson, City Atty., Baker, Botts, Shepherd & Coates, Houston, for appellees.
   GRISSOM, Chief Justice.

Shoppers Fair of North Houston, Inc. and Shoppers Fair of Texas, Inc., sued the City of Houston and others. They sought a temporary injunction pending a hearing on the merits. A temporary injunction was refused and plaintiffs have appealed. Plaintiffs alleged they operated two stores in Houston and, in accordance with Article 286a of the Vernon’s Ann. Penal Code of Texas, as interpreted by our Supreme Court in State v. Shoppers World, Inc., 380 S.W.2d 107, they had, since July 1964, been open for business on consecutive Saturdays and Sundays as an accommodation to purchasers who wished to make emergency purchases within the meaning of Section 4a of said statute; that they proposed to continue remaining open for business on consecutive Saturdays and Sundays and to operate their businesses on said days by requiring purchasers to sign such certificates of emergency, but that the City had enacted an ordinance making it unlawful for a purchaser to fraudulently make such a certificate, or to knowingly execute such a certificate, when no emergency existed. Said ordinance is as follows:

“It shall hereafter be unlawful for any person, firm, partnership, corporation or association to fraudulently make any representation or certification in writing or otherwise for the purpose of inducing a merchant, store, vendor, or any person who sells or offers to sell those items enumerated in Article 286a, Section 1, Texas Penal Code to sell or offer to sell such items in violation of said Article 286a, Section 1 of Texas Penal Code or for any such person, firm, partnership, corporation or association to knowingly execute or make any certificate in writing as provided for in Article 286a, Section 4a, Texas Penal Code when no emergency for the welfare, health or safety of human or animal life exists.”

Plaintiffs alleged said ordinance was void on its face and, unless defendants were enjoined from enforcing it, plaintiffs would suffer material property damage for which they had no adequate remedy at law, and that the mere threat of its enforcement would adversely affect plaintiffs’ property rights and cause them to suffer damages for which they had no adequate remedy at law. They alleged the ordinance was void because it was so vague and indefinite that it violated Article 1, Section 10 of the Constitution of Texas, Vernon’s Ann.St., which guarantees an accused the right to “demand the nature and cause of the accusation against him”, and violated Amendments 1, 4, 6 and 14 to the Constitution of the United States; that the ordinance contained no definition of “emergency” and no objective test and that the field in which the ordinance legislates has been preempted by the State and the ordinance is in conflict with Article 286a of the Penal Code as interpreted in State v. Shoppers World, supra.

Appellants points are that the court erred in denying them a temporary injunction against enforcement of said ordinance because (1), on its face, it is so ambiguous and of such doubtful construction that tests of enforcement are subjective rather than objective, thereby violating the guarantee of due process of law by the Texas and United States Constitutions; (2) because the un-controverted evidence showed enforcement would cause injury to appellants’ property rights and (3) because appellants had no adequate remedy at law for injuries to their vested property rights which enforcement would cause.

Appellants say an injunction may be granted by a civil court to prevent enforcement of an unconstitutional ordinance when its enforcement will result in irreparable injury to plaintiffs’ property rights and that, as held in Dibrell v. City of Coleman, Tex.Civ.App., 172 S.W. 550, (writ ref.) and State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, appellants must show that the ordinance is illegal and that its enforcement will cause irreparable injury to appellants’ property rights, but that they have established those requisites. They say the chief vice in the ordinance is that it contains language which has been held by the Supreme Court to be so ambiguous and vague that men of common intelligence must guess at its meaning and differ as to its application, and that it thereby violates the requirement of due process of law guaranteed by both constitutions. They point out that Article 286a, Penal Code, provides that it shall not apply when a purchaser certifies in writing that the merchandise is needed as an emergency, while the ordinance makes it an offense for a purchaser to knowingly execute such a certificate when no emergency exists. They say that, as held in the Shoppers World case, whether a purchase is made for an emergency and whether the thing purchased is needed to protect health, welfare or safety are questions which have no guide in the ordinance by which they may be answered and, as shown by said case and by the testimony here, only the purchaser can say whether an emergency exists.

Article 1, Section 10, of the Texas Constitution provides that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. In Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494, the Court of Criminal Appeals struck down a statute which violated that article. It held that to constitute a crime the statute must be such that a party is able to know in advance whether his act will be criminal or not and that criminality cannot depend on what a jury may think is reasonable; that there must be definiteness and certainty and whether the fraudulent execution of a certificate is a crime depends upon whether a jury thinks that at the time the purchaser signed the certificate an emergency existed. Appellants conclude that, since the Supreme Court has held that the language in Section 4a, Article 286a, is void for indefiniteness and the ordinance refers to it and incorporates its material language, it follows that the ordinance violates Section 10, Article 1 of the Texas Constitution and the United States Constitution.

Appellants say they have established that enforcement of the ordinance will result in injury to appellants’ property rights by creating such a threat to the buying public as will discourage it from patronizing appellants on Sunday and thereby adversely affect their vested property rights, for which they have no adequate remedy at law. In support thereof they cite City of Houston v. James K. Dobbs Company, 5 Cir., 232 F.2d 428. There, a federal court granted an injunction. The judgment was affirmed. The court found the ordinance was unconstitutional and that plaintiff’s vested property rights would suffer irreparable injury if an injunction were not granted, since customers could not buy food from the Dobbs Company. They also cite City of Austin v. Austin City Cemetery Association, 87 Tex. 330, 28 S.W. 528, where it was held that enforcement of a city ordinance would prevent purchasers from buying cemetery lots offered for sale by the plaintiff, thereby showing an injury to plaintiff’s vested property rights.

Appellees contend that their pleas to the jurisdiction were good and should have been sustained. Appellees say the ordinance is penal and courts of equity will not enjoin enforcement of a criminal ordinance, unless (1) it is unconstitutional and void and (2) its enforcement will violate vested property rights and cause irreparable injury thereto. We think this is an accurate statement of the law. State v. Logue, (Sup.Ct.), 376 S.W.2d 567, 572; Crouch v. Craik (Sup.Ct.), 369 S.W.2d 311, 315; Ex Parte Sterling, 122 Tex. 108, 53 S.W.2d 294, 295.

Appellees say that, although the ordinance is not unconstitutional or void, determination of its constitutionality is for the trial court in a trial on the merits and cannot be determined upon a hearing of a petition for a temporary injunction. We sustain this contention. Appellees cite Houston Belt and Terminal Railway Company v. Texas and New Orleans Railroad Company (Sup.Ct.), 155 Tex. 407, 289 S.W. 2d 217, 219; City of Austin v. Austin City Cemetery Association, 87 Tex. 330, 28 S.W. 528, 531; City of Houston v. Adams, Tex.Civ.App., 326 S.W.2d 627, 632 (Ref. NRE); Malone v. City of Houston, Tex.Civ.App., 278 S.W.2d 204, 206; Valerio v. Tobin, Tex.Civ.App., 298 S.W.2d 873, 875, (Ref. NRE) and 39 Tex.Jur.2d, page 622. Our Supreme Court so held in the first cited case.

Appellees stress the fact that the ordinance does not prohibit appellants from remaining open and selling on Sunday. It is directed against the purchaser only. Appellants cannot be convicted for violating the ordinance because it affects only purchasers who make a false certificate. Appellants have no reason to fear prosecution thereunder; appellants’ vested property rights will not be violated by its enforcement and the court should not have granted a temporary injunction based upon the presumption that appellants’ Sunday customers would make false certificates in order to purchase appellants’ merchandise. The presumption is that they will obey the law. Appellants have no vested property right in prospective purchasers’ opportunity to make a false certificate.

Appellees contend that because the ordinance applies only to purchasers, appellants have no justiciable interest in prohibiting enforcement of the ordinance. They cite Genard v. City of San Antonio, Tex.Civ.App., 307 S.W.2d 592, (Ref. NRE); Hill v. Carr, Tex.Civ.App., 307 S.W.2d 828 and Fisher v. City of Bartlett, Tex.Civ.App., 76 S.W.2d 535, (Writ Dis.). These cases are not directly in point but we believe this contention is good, provided the ordinance is distinguishable from the one denounced in City of Houston v. James K. Dobbs Company, 5 Cir., 232 F.2d 428. We think it is. There the ordinance made punishable both the sale and purchase. It prohibited the buying or selling of food at the city’s airport, except from the city’s concessionaire. Constitutionality of the ordinance was challenged because plaintiff could not reasonably expect customers to run the risk of arrest for the purpose of testing it. The distinction between the facts there and here is clearly shown by the fact that such ordinance prohibited both the sale and purchase of food at the municipal airport from any person other than the franchised concessionaire. A “permanent” injunction against its enforcement was granted after a hearing. It was held that the city could not impose restrictions not reasonably related to exercise of its powers to the hurt of proper, normal business activity and, although the city might operate its proprietary activities as it desired and might prohibit deliveries on the airport’s grounds, an ordinance which prohibited anyone other than the franchised concessionaire from selling food to airlines operating from the municipal airport deprived the seller of due process of law. That court said, however, that civil courts will not enjoin enforcement of criminal ordinances except under unusual circumstances and upon a clear showing that an injunction is required to protect constitutional rights. The Supreme Court in Ex Parte Sterling, 122 Tex. 108, 53 S.W.2d 294, held that the general rule was that courts of equity dealt only with vested property rights and they would not ordinarily stay prosecution of criminal proceedings, but that an exception existed when a statute was unconstitutional and its enforcement involved a direct invasion of property rights and would cause irreparable injury thereto. The decision in City of Houston v. Dobbs Company, 5 Cir., 232 F.2d 428, is not believed to be controlling here. It was not conclusively established here that enforcement of the ordinance would materially affect appellants’ vested property rights and cause irreparable injury thereto. There is no presumption that customers would violate said ordinance. If fact issues were raised they were, presumably, decided in support of the judgment.

We think the established rule stated by our Supreme Court in Janus Films, Inc. v. City of Fort Worth, Tex., 358 S.W.2d 589, is applicable here and requires affirmance of the judgment. The Supreme Court there said:

“In suits for temporary injunctions, the trial judge is endowed with broad discretion to grant or deny the injunction. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235. Accordingly, the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Texas Foundaries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460.”

That rule is also stated in slightly different language by our Supreme Court in Texas Foundaries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 463, and Transport Company of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552. We conclude that a clear abuse of discretion is not shown.

Appellants’ points are overruled. The judgment is affirmed.


text:
    Gene ROBERTSON et al., Appellants, v. STATE of Texas ex rel. William H. CLEMENT et al., Appellees.
    No. 16752.
    Court of Civil Appeals of Texas. Fort Worth.
    July 15, 1966.
    Rehearing Denied Sept. 16, 1966.

      R. Marvin Pierce, and Eugene Sherrod, Jr., Wichita Falls, for appellants.
    Carrington, Johnson & Stephens, Paul Carrington, Hubert D. Johnson and Gene L. McCoy, Dallas, Don Denbow, Asst. County Atty., Spence, Martin & Richie, Short & Smith, and Donald E. Short, Wichita Falls, for appellees.
    Amicus curise brief by: Texas Bankers Ass’n, and Sam Kimberlin, Jr., Executive Vice President and Leonard Passmore, Counsel & Secretary, Austin.
   OPINION

LANGDON, Justice.

The sole question presented by this appeal is whether or not the trial court.'erred in ruling that Art. 2.29D of the Texas Business Corporation Act, amended in 1961 and effective June 1, 1964, V.A.T.S., providing for cumulative voting of directors, was applicable to and governed the election of rela-tors as directors of the Burkburnett (State) Bank.

Being of the opinion it did, we reverse and render.

Section D of Article 2.29 of the Texas Business Corporation Act, hereinafter referred to as the T.B.C.A. as amended in 1961, reads as follows: “D. (1) At each election for directors every shareholder entitled to vote at such election shall have the right to vote, in person or by proxy, the number of shares owned by him for as many persons as there are directors to be elected and for whose election he has a right to vote, or unless expressly prohibited by the articles of incorporation to cumulate his votes by giving one candidate as many votes as the number of such directors multiplied by his shares shall equal or by distributing such votes on the same principle among any number of such candidates.

"* * * * * *

“(3) Any shareholder who intends to cumulate his votes as herein authorized shall give written notice of such intention to the secretary of the corporation on or before the day preceding the election at which such shareholder intends to cumulate his votes. As amended Acts 1957, 55th Leg., p. Ill, ch. 54, § 4A; Acts 1961, 57th Leg., p. 893, ch. 393, § 1.”

The annual stockholders’ meeting of the Burkburnett Bank was held on January 12, 1966, for election of its officers, including seven directors. It is undisputed that prior to the meeting all prerequisites of Art. 2.29 D(3) T.B.C.A., supra, relative to notice of intention to vote cumulatively, were timely and properly given by relators and that neither the articles of association nor the by-laws of the Bank expressly prohibit cumulative voting.

Upon receipt of relators’ notice of intent to vote their stock cumulatively, the President of the Bank telephoned the office of the State Banking’ Commissioner in Austin for advice. The Chief Departmental Examiner of the Department advised him that the Banking Commissioner had made consistent rulings that cumulative voting of shares in the election of directors in state banks is not permissible. Thereafter, the State Banking Commissioner, J. M. Falkner, wrote the Bank President confirming the previous advice in his letter stated, “Through certain knowledge, there has never been an Attorney General’s opinion rendered with respect to the provisions of Article 2, Chapter IV of the Banking Code.” That the interpretation of such provision on the part of his department was that a shareholder of a state bank was entitled to one vote for each share of stock standing in his name and that this policy had prevailed for more than thirty-five years.

At the time of the meeting, January 12, 1966, nine persons were nominated as directors, the last two of which were relators. As the voting proceeded the first seven nominees were elected directors by a majority vote. Five received 6685 votes each. Two received 6850 votes each. The total vote represented one vote for each share voted of the 10,000 shares of stock outstanding. At this point one of the relators attempted to vote cumulatively, approximately 2635 shares of stock, either owned or held as proxy by him, in behalf of himself and the other relator. He had not voted any of such shares for the first seven nominees. On the cumulative basis the 2635 shares times seven, the number of directors to be elected, would amount to an aggregate of 18,445 votes of which 9223 were cast for Clement and 9222 for Gray, the relators.

The chairman of the meeting, acting upon the advice previously received from the State Banking Commission, declared the relator to be out of order in attempting to cumulate his vote.

The election was contested by quo war-ranto proceedings. Both sides filed motions for summary judgment and submitted the case upon agreed stipulations and affidavits. By its ruling the trial court unseated two of the seven directors otherwise elected by the majority shareholders.

Article 9.14, T.B.C.A., “To What Corporations This Act Applies; Procedure for Adoption of Act by Existing Corporations,” contains the following provision: “A. This Act does not apply to domestic corporations organized for the purpose of operating hanks, (emphasis ours) trust companies, building and loan associations or companies, * * * provided, however, that if any of said excepted domestic corporations-were heretofore or are hereafter organized under special statutes which contain no provisions in regard to some of the matters provided for in this Act, * * * or if such special statutes specifically provide that the general laws for incorporation or for the granting of a certificate of authority to transact business in this State, as the case may be, shall supplement the provisions of such statutes, then the provisions of this Act shall apply to the extent that they are not inconsistent with the provisions of such special statutes. As amended Acts 1959, 56th Leg., p. 224, ch. 132, § 1.”

The special statutes which govern state banks, rather than containing “no provisions in regard to * * contain specific provisions pertaining to the election of directors which in our opinion control over the general provisions of the T.B.C.A. We find no authority or basis by which effect can be given to the provisions of the latter act as a supplement to a subject specifically covered by the Texas Banking Code. There is no provision in the latter act authorizing cumulative voting in the election of directors. Such method of voting is inconsistent with and repugnant to the provisions in the Texas Banking Code pertaining to the election of directors.

Article 16, § 16, of the Texas Constitution, Vernon’s Ann.St., requires the Legislature, by general laws, to authorize the incorporation of corporate bodies with banking and discounting privileges and to provide for state supervision, regulation and control thereof. The first sentence of the Texas Banking Code of 1943, hereinafter referred to as T.B.C., Article 342-101, Ch. 1, Title 16, V.A.T.S., reads as follows: “Scope of Act — Short Title. This code provides a complete system of laws governing the organization, operation, supervision and liquidation of state hanks, (emphasis ours) and to the extent indicated by the context, governing private banks and national banks domiciled in this State; as authorized by Article 16, Section 16 of the Constitution of the State of Texas, and as provided by Article 3, Section 43 of the Constitution of the State of Texas.”

As amended, Acts 1959, 56th Legislature, p. 894, Ch. 412, § 4, Article 342-402 of the T.B.C. pertaining to “Stockholders’ Meetings — Quorum—Voting,” provides, “The stockholders of each State bank shall hold one regular meeting each year at the time prescribed in its by-laws, and such special meetings as may be deemed necessary after notice as prescribed in the by-laws. * * * Each stockholder of record shall he entitled to one (1) vote for each share of stock owned by him, which he may cast in person or by proxy duly authorized in writing filed among the records of the bank. * * * ” (Emphasis ours.) Article 342-406 T.B.C. styled, “Directors’ Election — Term—Failure to Elect — Vacancy—Failure to Fill Vacancy,” reads; “Each State bank shall, at its regular annual meeting of stockholders, or at some adjournment thereof, or at a special meeting of stockholders called for such purpose, elect directors who shall serve until the next regular annual meeting of stockholders and until their successors have been elected and have qualified. * * * ”

In our effort to ascertain legislative intent as expressed by the provisions of the various statutes involved we are influenced by the following facts:

The incorporation of corporate bodies with banking and discounting privileges and the creation of private business corporations encompass law dealing with chartered institutions which are distinctly different. The difference is recognized by the Texas Constitution wherein Art. 16, § 16, supra, directs the legislature by general laws to authorize incorporation of state banks whereas private or business corporations stem from Art. 12, §§ 1 and 2 of the Texas Constitution. The Texas Legislature recognized this difference when it enacted into law the Texas Business Corporation Act and the Texas Banking Code, separate sets of rules to govern each type of corporation.

Art. 9.14, T.B.C.A., supra, previously discussed, specifically states that it does not apply to corporations organized for the purpose of operating banks. The Miscellaneous Corporation Laws Act Art. 1302-1.03, Vernon’s Ann.Civ.St., provides: “A. All corporations shall, to the extent not inconsistent with any special statute pertaining to a particular corporation, be governed (1) by the Texas Business Corporation Act, as amended, if organized for profit * *

Article 342 — 101, supra, of the Texas Banking Code reads: “This code provides a complete system (emphasis ours) of laws governing the organization, operation, supervision and liquidation of state banks * * “Complete” used in this sense is synonymous with “total”. It encompasses all details. The rules and provisions are whole, entire, full — having all parts or elements. There is no lack or defect. Since the Banking Code is “complete” within itself there is no cause to supplement its provisions with those of a separate act which are inconsistent with the specific provision of the Texas Banking Code which governs the voting rights of shareholders and the casting of votes in the election of directors. The Texas Banking Code of 1943 does not provide that the general law shall supplement its provisions. The privileges and powers conferred by the Texas Banking Code are subject only to the right of the legislature to amend, alter or reform it.

Article 342 — 302 of the T.B.C., under the heading “Legislative Control” provides, “The rights, privileges and powers conferred by this Code are held subject to the right of the Legislature to amend, alter or reform the same. Acts 1943, 48th Leg., p. 137, ch. 97, subch. Ill, art. 2.” The last section of Art. 342 — 301 of T.B.C. provides that “A state bank shall have all incidental powers necessary to exercise its specific powers”; Art. 342 — 901 provides, “All state banks are hereby declared to be charged with the public interest and shall be (emphasis ours) under state control and be subject to such legislation as may be enacted for the regulation of such banking institutions'(Emphasis ours.)

It would appear obvious from the above quoted provisions that the Legislature did not intend to amend the Texas Banking Code by the indirect method of supplementing it with the provisions of the T.B.C.A. It specifically reserved the right in the Code itself to amend, alter or reform it by direct means. This intent was further emphasized by the provision, “subject to such legislation as may be enacted for the regulation of such banking institutions.”

Surely the Legislature has in plain words with clear meaning spelled out its intent that the operation of state banks shall be controlled by the “complete” provisions of the Texas Banking Code, subject to such future legislation as may be enacted by it for the “regulation of such banking institutions.”

The right of cumulative voting for directors does not exist at common law. It must have been conferred, if at all, by an operative constitutional or statutory provision.

Since the Texas Banking Code is specific as to the right of a shareholder of a bank to vote in the election of directors and the method of exercising that right, it operates to the exclusion of the general provision of the T.B.C.A., which defines the voting rights and method of exercising that right in the election of directors generally.

The Texas Business Corporation Act was enacted in 1955. It contained approximately the same provisions for cumulative voting then as are now again effective since June of 1964. Such provisions were twice amended in the interim period. It appears to us that had the Legislature intended to provide cumulative voting for state banks it would have enacted legislation providing therefor in 1961 when it amended the T.B.C.A. or subsequent thereto when it amended provisions of the T.B.C. without any alteration or change in the voting rights or methods presently prescribed. This is of particular significance in view of the fact that both the cumulative voting provisions of the T.B.C.A. and the provisions of the T.B.C. relating to the election of directors have been amended a number of times since the Banking Commissioner first made known its interpretation of such voting rights and the Legislature has declined to employ language in any of the amendments which can be interpreted as overriding the Commissioner’s interpretation.

Former Chief Justice Cureton of the Texas Supreme Court, in the case of Shaw v. Strong, 128 Tex. 65, 96 S.W.2d 276 (1936), involving an administrative determination by the Texas Banking Commissioner, stated on page 281 of 96 S.W.2d, “In such a case our proper course is to follow the departmental construction, unless that interpretation is clearly erroneous or unsound. 39 Texas Jur. p. 234, §§ 125, 126.” See 53 Tex.Jur.2d p. 257, § 176, which provides : “The contemporaneous, or practical, construction of an act, or, in other words, the construction put on a statute soon after its enactment by those who are charged with the duty of its enforcement, that is, executive and administrative officers and departments, as well as by the courts and the legislature, is worthy of serious consideration as an aid to interpretation, particularly where this construction has been sanctioned by long acquiescence.” Section 178, at page 266, of the same text provides, “And the fact that an act is carried forward and incorporated in a revision may be treated as a legislative interpretation that the act has not been abrogated or repealed.” Again in the same text at page 267, § 179, it is stated, “In the construction of an act or provision that has been amended, reenacted, or restated, the circumstance that the original statutory language has been modified, or that it has been preserved unchanged, in certain particulars, may be taken into consideration, as an aid to the ascertainment of the legislative intent.” Further, in the same text at page 269, § 180, it is stated: “A construction placed on a statute by administrative officers is presumed to be correct, especially where it was contemporaneous, or nearly so, with the statute itself. And legislative acquiescence in the construction given a statute may be presumed from protracted failure to amend or change it.” Section 181 at page 270 of the same text provides: “The language of a statute is presumed to have been selected and used with care and deliberation. Every word or phrase is presumed to have been used intentionally, with a meaning and purpose, especially when the language consists of an adopted phrase, or bears evidence of having been chosen with care, or is a phrase of long and frequent usage in the same connection or others involving a similar principle of construction. Where the statutory language is plain and unambiguous, and expresses a single definite and sensible meaning, it is conclusively presumed that the legislature intended to convey that meaning. In such a case, it is further presumed that if the legislature had not intended an expression to convey its plain meaning it would have said so, or would have used a different term, and would not have left the matter entirely to implication.” Again, in Section 182, pp. 272 and 273, of the same text, it is stated: “Nor will it be presumed that the legislature intended to make any change in existing law or the settled policy of the state, beyond what it explicitly declares in express terms or by unmistakable implication. * * * Where a statute is reenacted or revised, without any substantial change in its verbiage, it is presumed that the legislature intended it to be given the same construction as that previously given the original act by the courts or by officers charged with its administration.”

State of Ohio ex rel. Kearns v. Rindsfoos, 161 Ohio St. 60, 118 N.E.2d 138, 43 A.L.R.2d 1316 (1954), involves a quo warranto proceeding almost identical to this case. It was based on a refusal to permit cumulative voting on the part of a shareholder in the election of directors in an Ohio State Bank. There, as here, the General Corporation Act and the Banking Act provide that “each shareholder shall be entitled to one vote for each share” except in Ohio there was added the provision, “unless the articles of incorporation otherwise provided.” In Ohio, as in Texas, a subsequent provision in the General Corporation Act specifically authorized cumulative voting but a similar provision did not appear in the Banking Code. Cumulative voting was not prohibited by the Code. It was silent on the matter. The Ohio banking code provided that the bank, created under its provisions, should select its directors in the same manner as provided for corporations organized under the general laws of Ohio, in so far as same were not inconsistent with the provisions of the Banking Code. The Ohio court held that the silence of the Banking Code with respect to cumulative voting was inconsistent with the General Corporation Act. That the Banking Code contained specific provisions, complete in themselves, governing the voting rights of shareholders in the election of directors and that such provisions did not include authorization of cumulative voting. The Ohio case is reported in 43 A.L.R.2d 1316. See also pages 1317, 1328 of the same text, and 8 Tex.Jur.2d 354, § 151 and authorities cited therein. “ * * * the existence or nonexistence of a particular intent may be inferred from the fact that an act does not contain a certain provision.” 53 Tex. Jur.2d 194, § 131.

The judgment of the trial court is reversed and judgment here rendered in behalf of the appellants.


author: HOUSER, Commissioner.

text:
    Linda MEIER et al., Minors, by and Through Joyce Meier Ray, Their Mother and Next Friend, Respondents, v. Ernest Junior MORELAND, Appellant.
    No. 51429.
    Supreme Court of Missouri, Division No. 1.
    Sept. 12, 1966.
    Thurman, Nixon, Smith & Howald, Robert Lee Smith, John W. Howald, Hillsboro, for respondents.
    Robert Lee Campbell, Clayton, for defendant-appellant.
   HOUSER, Commissioner.

Action for damages for the death of Eugene James Meier. Plaintiffs are his three minor daughters, proceeding by their mother and next friend. The death occurred as a result of a head-on collision between two automobiles driven by the deceased and the defendant Ernest Junior Moreland. Eleven jurors signed a verdict for plaintiffs for $25,000 damages. Defendant has appealed from the ensuing judgment.

Defendant filed a motion for a directed verdict at the close of plaintiff’s case. The motion was overruled. Defendant stood on the motion and put on no evidence. On appeal defendant claims that the court erred in failing to direct a verdict for defendant because (1) plaintiffs evidence was so sketchy that a verdict could only he based upon surmise, speculation and conjecture; (2) the evidence disclosed that plaintiffs’ decedent was guilty of contributory negligence as a matter of law in operating his automobile (a) on the wrong side of the road and (b) at a speed which the jury found to be negligent in accordance with Instruction No. 1.

The only eyewitnesses were the drivers of the two cars. Defendant, the only survivor, did not appear personally at the trial and no evidence was introduced on his behalf. Plaintiffs’ case consisted of the death certificate, a stipulation by defendant’s counsel that deceased was killed as a result of this collision, admissions by defendant at the coroner’s inquest, some photographs of deceased’s Plymouth automobile, and the testimony of a state highway patrol trooper and the widow.

Defendant made the following admissions against interest at the coroner’s inquest: “Q. Would you just tell us in your own words what you were doing and what transpired during this time of the accident? A. Well, I had been to St. Charles. I came out in the fog. I made a wrong turn, came down that road, I seen I was on the wrong road and I turned around and went back, started back to interstate 70. Q. Where had you intended to go ? A. I was going back home. When I came out of St. Charles I got over on the wrong road in the fog. I couldn’t see. Q. Then you proceeded up this far before you noticed you were on the wrong road. A. Before I realized where I was at. Q. Do you have any idea what speed you were traveling at that time? A. Oh, some where around forty to forty five. Q. What would you say the distance of visibility would be? A. Thirty or fifty feet, it wasn’t too good.”

The highway patrol trooper received a call at 1:12 a.m. and proceeded to the scene of the accident, and made an investigation. He testified as follows: The highway runs north and south at that point. The 2-lane concrete pavement is straight with a slight up grade to the south. He observed two vehicles, decedent’s Plymouth on the east side of the road, headed in a generally southeastern direction (it had been traveling north) and defendant’s Oldsmobile, which was also off the road on the east side headed in a generally southeastern direction (it had been traveling south). The left side and fourteen inches of the front of the Plymouth were damaged. The damage started at the front, taking in the left front headlight, and down the left side. The left door post was torn out. The damage extended on back past the left rear wheel housing. About eighteen inches of the left front portion of the Oldsmobile was damaged. There was only one tire mark on the pavement, “which would have been by the 1956 Oldsmobile.” It started three inches to the east of the center line of the pavement and continued down along the center line a short distance, then veered to the east side of the road, going off onto the shoulder and led up to the Oldsmobile where the Oldsmobile came to- rest on the east side of the road. There were no tire marks whatsoever in the southbound lane. The Plymouth did not leave any tire marks on the pavement. The tire marks from the Plymouth were on the east shoulder of the road, which would have been a lane of traffic for a northbound automobile — the right side of the road of the northbound lane. There was debris on the highway when the trooper arrived on the scene. The major concentration of debris was in the northbound lane, although there was some debris in the southbound lane. It was extremely foggy that evening. Visibility was very limited. “What you could see in your own headlights would be approximately fifty feet, the maximum.” At the scene defendant stated to the trooper that he had been traveling south at that time; that the fog was very heavy; that visibility was very limited; that he saw the other vehicle’s headlights — the dim headlight in the fog, and then they hit. Defendant stated he thought he was far enough over but he was not sure. He did not say he was on his side of the road or on the other side; he did not know whether he was on his own side of the road or not. He made a statement relative to his speed but the trooper did not recall what it was. He stated that he had been in a tavern at St. Charles, where he drank one beer; that he started to return home in Creve Coeur (which is 8-9 miles from St. Charles); that he made a wrong turn and went north of St. Charles beyond Win-field (20-25 miles) before realizing that he was going in the wrong direction. He was on his way back when the collision occurred. The trooper estimated that the northbound Plymouth driven by the decedent was traveling at approximately 50 m. p. h. and that the southbound Oldsmobile driven by the defendant was traveling at approximately 60 m. p. h. The trooper was not of the opinion that the tire mark on the pavement was made by the rim of the wheel hitting the ground after a blowout on the left front wheel. He testified that the mark was made by the left front tire, not by the rim, and without giving any explanation stated that it was made “after the point of impact,” that it “started after the impact.” Later he said that he determined that the “possible point of impact” was at the beginning of the tire mark. There was “nothing other than that to indicate clearly where the point of impact was.” From the center of the Plymouth tire to the outside edge of the fender is from ten to twelve inches.

At plaintiffs’ request the court gave Instruction No. 1 which, after hypothesizing that Eugene James Meier was driving his automobile north on U. S. Highway 79 in Lincoln County and that defendant was driving his automobile south, and the collision between the two automobiles, contained the following submission of negligence: “and if you further find that at the time and place of said collision and immediately before said collision it was dark and foggy on said highway so that defendant could then only see a distance of 30 to 50 feet ahead of him on said highway but that defendant then drove his automobile at a speed of 40 to 45 miles an hour or more, and if you further find that such speed was a high and excessive speed for defendant to drive his automobile there under the circumstances shown in evidence, and if you further find that defendant also drove his automobile in such a way so that part of his automobile was to its left of the center of the paved part of said highway and that part of his automobile was to its left of said center of the highway at the time of collision, and if you further find that in so operating his automobile on said occasion defendant failed to exercise the highest degree of care then you are instructed that defendant was negligent, * * The court' gave Instruction No. 3 at defendant’s request, as follows: “The Court instructs the jury that if you find and believe from the evidence that at the time of the collision mentioned in evidence, deceased was operating a motor vehicle and that any portion of said motor vehicle was across the center line of Highway 79, and that the failure, if so, of deceased, to operate his motor vehicle upon the right half of said Highway 79 contributed to cause the death of deceased, and that by reason thereof deceased was negligent, if you so find, then your verdict shall be in favor of the defendant and against the plaintiffs.”

On the question whether a verdict for plaintiffs could only be based upon surmise, speculation and conjecture it must be acknowledged that the evidence is brief, sparse and lacking in detail. Notwithstanding its terseness the evidence contains the essential ingredients to make a submissible case of negligence. It is circumstantial, except for defendant’s admissions against interest. The stark facts surrounding the grim scene found by the state trooper, and defendant’s admissions, provide a sufficient basis for reasonable minds to infer that defendant, whose visibility was limited to 30 to 50 feet, drove his automobile on the southbound lane of a state highway through a dense fog at an excessive speed of from 40 to 60 miles per hour (from 60 to 90 feet per second), over and across the center line of the highway onto the wrong side of the highway and into violent head-on collision with the Plymouth automobile, in the northbound lane, instantly killing plaintiffs’ decedent; that the Plymouth was being driven on the right or east side of the pavement, in the proper lane of traffic, and that defendant’s Oldsmobile was being driven on the wrong side of the road. The essential facts, undisputed by evidence, are that after the accident the two automobiles were found and apparently came to rest on the east side of the center line of the pavement, see Mitchell v. Stolze, 375 Pa. 296, 100 A.2d 477 [2]; that the major concentration of debris was found on the east side of the center line of the pavement; that there were no tire marks in the southbound lane, to the west of the center line of the highway; that the one tire mark found on the pavement was the tire mark of defendant’s automobile, on the east side of the center line; that tire marks from the Plymouth were found on the east shoulder of the road; that the damages to the two vehicles indicated a head-on collision; that there was no evidence from which it could be inferred that the Plymouth was traveling on the wrong side of. the highway. From these facts the jury could find that defendant was negligent in the respects submitted by Instruction No. 1. Martin v. Sloan, Mo.Sup., 377 S.W.2d 252 [7] and Missouri cases cited l. c. 258; McAlexander v. Lewis, 167 Neb. 524, 93 N.W.2d 632, 77 A.L.R.2d 575; Stark’s Adm’x v. Herndon’s Adm’r, 292 Ky. 469, 166 S.W.2d 828 [6]; Anno. 77 A.L.R.2d 580.

Appellant’s second and third points, that plaintiffs’ decedent was guilty of contributory negligence as a matter of law in operating his automobile on the wrong side of the road, and at a speed that was negligent, must be disallowed.

We start out with the presumption that decedent was not guilty of negligence contributing to his death where, as here, the only surviving eyewitness did not attend the trial and there was no direct evidence of conduct indicating negligence on the part of decedent, unless all of the facts conclusively establish negligence on his part. See Keeney v. Callow, Mo.Sup., 349 S.W.2d 75 [9]. The presumption was not rebutted. There was no evidence of any want of due care on the part of decedent. In the absence of any other satisfactory explanation of the location of the debris, and of both automobiles after the collision, the mark from the Oldsmobile’s tire, and the tire marks from the Plymouth, all of which were found east of the center line, the jury could infer that plaintiffs’ decedent was not operating the Plymouth on the wrong side of the road. The presumption is fortified by the foregoing circumstantial evidence, which indicates due care on the part of decedent.

Appellant urges, however, that the physical evidence of the damages to the vehicles clearly and conclusively proves that decedent’s automobile was “at least partially across the center line of Highway 79.” Appellant argues that since fourteen inches of the Plymouth’s front and eighteen inches of the Oldsmobile’s front were damaged and since the Oldsmobile was only three inches over the center line after the impact, “simple arithmetic will result in decedent’s car being at least partially on the wrong side of the road.” This argument is based upon several unsupported assumptions, two of which are that the tire mark was made by the left front tire of the Oldsmobile; and that the tire mark was made after the impact. There is no evidence which compels a finding of these facts, or that as a matter of law plaintiffs’ decedent was operating his automobile on the wrong side of the road.

Appellant further urges that the jury was instructed to find defendant guilty of negligence if he drove his automobile at 40-45 m. p. h.; that if such a speed was excessive and if defendant was negligent in traveling at that speed under the prevailing conditions then plaintiffs’ decedent was likewise guilty of negligence in traveling at SO m. p. h. under the very same conditions. This argument is made on the theory that “what is sauce for the goose is sauce for the gander.” Although ingenious, the argument does not compel a reversal. It was not an established fact that plaintiffs’ decedent was traveling 50 m. p. h. The state trooper, who appeared at the scene after the collision, estimated his speed at approximately SO m. p. h. but the jury had a right to and doubtless did disregard or reject that portion of the trooper’s testimony. Here is the background: The trooper was called as plaintiffs’ witness. On cross-examination he was asked whether he determined that both cars were traveling at a fairly high speed, due to the force of the collision. Plaintiffs objected but the objection was overruled. The trooper was then asked whether the automobiles were both traveling fast and he answered, “I estimated the Meier vehicle at approximately fifty; the Moreland vehicle at approximately sixty.” There was no other evidence touching the speed of the Plymouth.

We first note that the facts upon which the trooper’s estimate was based were not elicited. “The facts upon which an expert’s opinion is based, like the facts sufficient to support a verdict, must measure up to the legal requirements of substan-tiality and probative force * * Craddock v. Greenberg Mercantile, Inc., Mo.Sup., 297 S.W.2d 541 [9].

More vitally important, a plaintiff is not conclusively bound by his witnesses’ estimates of time, speed or distance. McDonough v. St. Louis Public Service Co., Mo.Sup., 350 S.W.2d 739, 745 [3]. “[Ejven where there is no other evidence or where the plaintiff so testifies himself, he is not conclusively bound by mere estimates of distance or speed.” Carlson v. St. Louis Public Service Co., Mo.Sup., 358 S.W.2d 795 [7].

We are aware of the rule that under given circumstances a party is bound by the testimony of a trooper offered by the party and not contradicted by any of the party’s other witnesses, Branch v. Gordon’s Transports, Inc., Mo.App., 375 S.W. 2d 418 [5], but this rule does not apply to estimates of speed. Certainly a ruling that a driver was contributorily negligent as a matter of law should not be made upon the unsupported estimate of a trooper as to the speed of an automobile from observations made at the scene of an automobile collision after the occurrence of the collision.

The judgment is affirmed.

HIGGINS, C, concurs.

WELBORN, C., not sitting.

PER CURIAM:

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

All of the Judges concur.