author: GREEN, Chief Justice.

text:
    J. H. PAGE et al., Appellant, v. PAN AMERICAN PETROLEUM CORPORATION et al., Appellee.
    No. 71.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 27, 1964.
    Rehearing Denied Sept. 24, 1964.
    Pritchett Harvey, Houston, for appellant.
    Joyce Cox, of Fountain, Cox & Gaines, Cecil Cook and Neal Powers, Jr., of Butler, Binion, Rice & Cook, D. H. Austin of Liddell, Austin, Dawson & Huggins, Houston, Cleveland Davis, Angleton, and George Wear, Houston, for appellee.
   GREEN, Chief Justice.

Summary judgment was granted the defendants in a trespass to try title suit. We affirm.

The parties will be referred to as in the trial court.

Defendants attached to their motion and supplemental motion for summary judgment, or made a part thereof by appropriate reference, a number of affidavits and copies of a great many documents of public record, with a stipulation of counsel giving to such copies the same effect as originals duly proved in court would have. Many of the exhibits, entirely uncontroverted, consisted of summary matter showing the lands in issue in their historic context and facts concerning their use for over one hundred years.

Plaintiffs, in their answer to defendants’ motion, also by proper reference placed in the record a number of affidavits, particularly applicable to the issue of limitation as to the particular acreage sued for, and several depositions. All statements herein of facts concerning Elizabeth Page Chase, Joseph William Page, Samuel Harrison Page, the history of the title to the property involved, and other matters concerning these lands are taken from the undisputed facts evidenced by the above mentioned documents, depositions, affidavits and exhibits.

The basis of the trial court’s action is shown by the findings set forth in the decree, as follows:

“The Court considered the' pleadings, said motion and supplement thereto and the answers to said motion and said supplement, and all motions, affidavits, exhibits and depositions on file in this cause, and concluding that from the undisputed facts a conveyance divesting Plaintiffs’ predecessors in title of all right, title and claim in and to the lands comprising the upper one-eighth (Ys) of the Imla Keep League, Abstract 79, Brazoria County, Texas, including the lands title to which is in issue in this cause, is presumed and is proved as a matter of law, the Court sustaining Grounds ‘IIP and ‘IV’ of said motion, thereby rendering unnecessary a determination of whether fact issue or issues are made with respect to Grounds T and ‘IP, it is accordingly
“ORDERED, ADJUDGED and DEI CREED that the defendants’ motion be and the same is hereby sustained, and that plaintiffs take nothing herein with respect to the land described as follows:”

It is established by the record without dispute that Elizabeth Page Chase acquired title to the upper one-eighth of the Imla Keep League in Brazoria County, Texas, in 1829, and that she died intestate in the middle of 1833. She left as her sole heirs her two sons, Joseph William Page, born in 1812, and Samuel Harrison Page, born in 1821. Joseph was appointed administrator of her estate and guardian of his minor brother Samuel. On December 22, 1833, the administrator filed an inventory of Elizabeth Chase’s estate, listing as part thereof “one-eighth of a league of land situated lying on San Bernard.”

In a deed undated but recorded in the Deed Records of Brazoria County, Volume C, on the same page as is another deed dated December 24, 1839, and filed for record January 2, 1840, Joseph William Page conveyed all of his right, title, interest and claim in the upper eighth of the Keep League to John Sweeny, a resident of Bra-zoria County, “to have and to hold the same in fee simple forever. He, the said Joseph W. Page, relinquishing for himself and his heirs, the whole of said land in favor of the said John Sweeny.” There is no record of any conveyance out of Samuel Harrison Page of the one-half interest in the upper one-eighth of the Keep League plaintiffs claim he inherited from his mother.

Plaintiffs in the trial court and on this appeal claim:

(1) That Samuel Harrison Page inherited one-half of the upper eighth of the Keep League from his mother;

(2) That plaintiffs are descendants of Samuel Harrison Page and are inheritors from him of the title they claim he inherited ; and

(3) That defendants and those under and with whom they claim are, as owners of the other one-half of said property, co-tenants with plaintiffs and debarred by law from denying plaintiffs’ claims of title.

Plaintiffs’ claim is, indivisibly, claim to one-half of the upper one-eighth of the Imla Keep League; their suit here is an assertion of that claim as applied to the particular 39.87 acres of said land described in plaintiffs’ final petition.

Defendants hold under a record chain of title commencing with the deed of 1839 from Joseph William Page to John Sweeny, a chain shown to be continuously active with every aspect of ownership for over one hundred years. It is their contention, and this is the proposition which was sustained by the trial court in granting the summary judgment, that as a matter of law long and notorious claim of title, dominion, payment by the defendants and their predecessors in title of taxes, the long acquiescence of plaintiffs and those under whom they claim in that dominion and claim of the defendants and their predecessors in title, the extreme notoriety to all concerned of these matters, and the opportunities of Samuel H. Page and hi's descendants to know the facts, establish as a matter of law that in some manner the title now attempted to be asserted by plaintiffs passed from their ancestors and is not now a title owned by them, but is a title owned by defendants.

After the death of their mother, Joseph and Samuel Page lived together, practically on the boundary line of Matagorda and Brazoria Counties, in close proximity to the land in question until Samuel’married in 1850. They continued to live in that vicinity until Joseph died in 1854 in Matagorda County. He was a bachelor, and Samuel as his only heir inherited over 4000 acres of land from him. Samuel and his family moved from Matagorda County to Padre Island in 1855, afterwards moving to Nueces County, where he continued to reside until his death in 1893. The record shows that Samuel was keenly aware of his inheritances and during his long life engaged in numerous business transactions involving the property inherited from Joseph, as well as other property otherwise acquired. Though Samuel lived until he was 34 years of age in the immediate vicinity of the upper part of the Keep League, which for the last 15 of those years was well known as the Sweeny Plantation, and continued thereafter to live forty active years within less than two hundred miles, he never at any time made any claim that he had inherited any property in the Keep League from his mother and, in fact, never asserted any claim to the property here involved.

Instead, he and, after his death in 1893, his descendants remained silent as to any claim on the Keep League, while John Sweeny lived from 1839 or 1840 until his death in 1855 on his “Home Plantation” including the land now in .issue; while the Sweeny heirs partitioned and traded as to the property; while most of the one-eighth league was included for over forty years in the McGrew Plantation, Sophie McGrew being the .daughter of John Sweeny; while it was thereafter sold and resold; while large areas were actually occupied by the improvements of purchasers; while taxes were paid by those claiming under the Sweeny chain of title; while all of the land affected became a part of the Old Ocean Oil Field, and were unitized with other large areas, and until the property became very valuable by reason of the production of oil. As evidence that plaintiffs do consider this property to have great value, they include in their suit a prayer for three million dollars damages for defendants’ withholding this 39.87 acres from them.

Since public records began and are now found, the successive holders of defendants’ chain of title have paid all the taxes levied against this property, and plaintiffs and their predecessors in claimed title have paid none. All public records of Brazoria County, the Deed and Tax Records and the State Comptroller’s Records, show ownership claim and tax payments in defendants’ chain of title.

Not until plaintiff G. H. Nagel, not related to any of the other plaintiffs, commenced searching for the descendants of Samuel Harrison Page in 1957 and took assignments of part interest in their claims as part consideration for his agreement to pay all costs of this litigation did the records reflect any claim of anyone to any portion of the upper eighth of the Keep League adverse to those claiming under the Sweeny chain of title.

The court records of the guardianship proceedings of Samuel H. Page are incomplete and do not close. An affidavit of the County Clerk of Brazoria County, executed in September, 1958, shows over 200 numbered pages of Volume A of the original probate records as missing. An affidavit of the deputy clerk in that office, of the same date, evidences that in a storm of 1932, many of the old records, including old probate papers, were blown across the prairie, and she was unsure that all had been found.

Prior to the act of the Fourth Congress of the Republic of Texas of 1840 making sales of land void unless evidenced by an instrument in writing, lands could be sold in Texas orally, no deed of conveyance being necessary for the transfer of title from one to another. Herndon v. Casiano, 7 Tex. 322; Manchaca v. Field, 62 Tex. 135; Morris v. Moore, Tex.Civ.App., 216 S.W. 890, writ ref.

In the light of the circumstantial proof, we hold that the trial court did not err in presuming as a matter of law the proof of a conveyance divesting plaintiffs’ predecessors in title of all right, title and interest in the lands comprising the upper one-eighth of the Imla Keep League in Brazoria County, Texas, including the 39.87 acre tract described in plaintiffs’ pleadings. We feel that the defendants, by their summary judgment evidence, have shown the entire absence of-any issue of fact but that there was such a disposal of title either by Elizabeth Page Chase prior to her death -by parole or writing not recorded or lost, and not known to Joseph when he filed the inventory, or in the guardianship proceedings, record of which is incomplete, or by some subsequent unrecorded conveyance by Samuel Harrison Page, and that the plaintiffs have not offered any evidence to rebut defendants’ proof, or establish a fact issue as to such presumption.

“Since it is not consistent with human-experience for one really owning property of value to assert no claim thereto,, but to acquiesce for a long period of time in an unfounded, hostile claim, the rule is sound which permits the inference that an apparent owner has parted with his title from evidence, first, of a long-asserted and open claim, adverse to that of the apparent owner; second, of a nonclaim by the apparent owner; and third, of acquiescence by the apparent owner in the adverse claim.
“The rule is essential to the ascertainment of the very truth of ancient transactions. Without it, numberless valid land titles could not be upheld. Its application becomes more and more important with the passing years, as it becomes more and more difficult to get living witnesses to that which long ago transpired.” Magee v. Paul, 110 Tex. 470, 221 S.W. 254, 256.

Plaintiffs contend that in the absence of proof of a deed from their ancestor Samuel Page, defendants and their predecessors in title are and have been co-tenants with plaintiffs and their predecessors in title as to this property, and hence, under the rules of co-tenancy, the claims of defendants and their predecessors have not been adversé to their co-tenants. This same contention was made and disposed of adversely to plaintiffs in another suit between these same plaintiffs and many of the same defendants, involving the same chains of title to this same one-eighth Keep League. The only difference as to this contention of co-tenancy was that other acreage in the same upper one eighth of the Keep League was the subject of that suit. Page v. Pan American Petroleum Corporation, 327 S.W.2d 469, Tex.Civ.App.1959, writ ref., n. r. e., and authorities there cited. Plaintiffs’ so-called predecessors in title never made any claims to this property. 'The claims and holdings of defendants and their predecessors in title were adverse, open, and notorious to all for over one hundred years.

It is further contended that the presumption of a grant or deed which arises from the long-continued possession and use of real property is a presumption of fact, and not of law, and subject to rebuttal, and that the ultimate decision should be left to the jury in a jury trial, or the judge as an issue of fact in a non-jury trial. As a general rule, this is true, where fact issues are present. Texas Practice, Lange on Titles, Vol. 4, Sec. 405; Herndon v. Vick, 89 Tex. 469, 35 S.W. 141; Thompson v. Dutton, 96 Tex. 205, 71 S.W. 544; Bordages v. Stanolind Oil & Gas Co., Tex.Civ.App., 129 S.W.2d 786, writ dis., judg. corr.; Fowler v. Texas Exploration Co., Tex.Civ.App., 290 S.W. 818, writ ref.

However, as to whether an issue of fact or a question of law is presented depends upon the entire record of each case. And when, as in the present case, the record clearly presents a situation where, in the total absence of any facts to the contrary, reasonable minds could reach no other conclusion but that the long continued and undisturbed possession and claims of title, acquiesced in by plaintiffs’ ancestor from whom they claim for over fifty years and by his descendants, for another sixty years, could be explained only by the presumption of an unrecorded conveyance, the court will presume such a conveyance as a matter of law.

“The cases are not rare wherein it has been held that, after a great lapse of a traiisfer or a conveyance will be presumed in favor of one asserting, during all that time, open and notorious claim of ownership against the supposed grantor. Especially is this true, where, in the case of the transfer of a land certificate, no written muniment is required. Newby v. Haltaman, 43 Tex. [314] 317; Ikard v. Thompson, 81 Tex. [285] 292, 16 S.W. 1019; Parker v. Spencer, 61 Tex. 155; Manchaca v. Field, 62 Tex. [135] 141; Capp v. Terry, 75 Tex. [391] 401, 13 S.W. 52.” Baldwin v. Roberts, 13 Tex.Civ.App., 563, 36 S.W. 789, writ ref.
“The facts found by the court upon amply sufficient (most of them upon undisputed) evidence amply justified the further conclusion that the title in Hardin’s heirs had been extinguished. Their long acquiescence in the possession and claim of appellees and those under whom they claim cannot be reasonably .accounted for upon any other hypothesis. It is hardly .going too far to say that the evidence, under the authorities, upon this question compelled such a finding, and that a contrary finding would have been against reason. (citing authorities.)” Surghenor v. Ducey, Tex.Civ.App., 139 S.W. 22, writ dis.

In Duke v. Houston Oil Co. of Texas, Tex.Civ.App., 128 S.W.2d 480, (writ dis., judg. corr.), the trial court instructed a jury verdict in favor of appellee who relied on the doctrine of a presumed deed of conveyance. The Court of Civil Appeals, in affirming the judgment, said:

“Weighing the facts on the principles above discussed, and by the authorities, we think the trial court was justified, as a matter of law, in presuming that the title transferred by George Ryan to James Henderson was transferred back to Ryan by Henderson. Every inference in the record supports that presumption, and, as we view the record, there is not a circumstance against it. Appellants offered no evidence to rebut this presumption. As a fact issue, no one could dispute the proposition that the evidence, was sufficient to- send it to the jury. But'on the issue, as in proof of all other issues, where there is no ground upon which reasonable minds can differ, the court, as a matter of law, can draw the conclusion, and so instruct the jury.”

In Clements v. Texas Co., Tex.Civ.App., 273 S.W. 993, writ ref., it was necessary, if the judgment of the trial court were to be affirmed, that a judgment, the record of which had been lost or destroyed, be established or presumed from circumstances. We quote from the opinion as follows:

“We think the facts can lead to no other conclusion than that such a judgment was pronounced, and that its terms were as described in the petition for injunction filed by George Tenille.
“We approach this question from the standpoint of the rule laid down by Judge Wheeler in Baker v. Coe, 20 Tex. 429:
“ ‘Presumptions must be indulged in favor of those proceedings, especially when they are ancient, and titles have been acquired and transmitted under them, or it would indeed be true that time, instead of healing, as it should, the defects of these titles, would gradually undermine, and eventually destroy them.’
“It is difficult to assume a state of facts which' would call more strongly for the indulgence of a presumption of the very existence of the judgment, if this were necessary.
“But plaintiff contends that such a presumption is necessary, and that such a presumption is one of fact and when indulged is for the jury. Academically, this may be true, but such a presumption, having to do with a transaction 80 years in the past, becomes, for all practical purposes, one of law, for generally the great age which raises the presumption also obliterates the evidence which might have overthrown it. It becomes immaterial, in short, whether it be considered a rebuttal or conclusive presumption. So it is in this case. Not only are there facts which give rise to the presumption of the existence of such a judgment, there is also direct evidence of its existence, and, there being an entire absence of evidence to the contrary, whether upon the presumption or upon the uncontroverted direct evidence, it becomes proper to say as a matter of law that such a judgment existed.”

On the record of our case defendants presented a situation with regard to the title to this land which, in the absence of rebuttal testimony, would require as a matter of law the conclusion that plaintiffs, and those under whom they must claim, did not own this property, and that full legal title had been acquired by defendants and those in their chain of title. Plaintiffs offered nothing to refute or rebut the presumption of legal transfer of the title which they would claim. If the necessity for a legal presumption existed back in Justice Wheeler’s time, it is many fold more essential today. We agree with defendants’ counsel that a title as well recognized, as notorious, as adversely held, and which has been knowingly acquiesced in for such a long period of time, as that held by John Sweeny and his successors and assigns, should not be placed in jeopardy by a claim based on the record before us.

We sustain Appellees’ First Counterpoint, that the Trial Court correctly held that upon the record Appellants have no right to the upper one-eighth of the Keep League, of which the area in issue is a part.

Defendants, by their second counterpoint, submit that the summary judgment shoud be affirmed because, as a matter of law, plaintiffs’ claims are barred by Article 5510, Vernon’s Ann.Rev.Civ.Stats. of Texas. By their third counterpoint they submit that Samuel Harrison Page and his descendants are estopped to claim any portion of the upper one-eighth of the Keep League. These are the two propositions raised in Grounds I and II of defendants’ motion for summary judgment which were not determined or passed on by the trial court. See extract from his decree, supra.

In support of their limitation plea, defendants cite Page v. Pan American Petroleum Corp., 327 S.W.2d 469, writ ref. n. r. e. A distinction between the two cases as to the plea of limitations appears to be that in the prior case, plaintiffs did not by answer to the motion deny or by affidavit refute defendants’ motion and affidavits, and hence raised no issue of fact, as held by the court. In the present case, heard in the district court after the decision in the prior case, plaintiffs did, by sworn answer, depositions, and affidavits, seek to raise fact issues on limitation title as it concerns the particular acreage sued for. The learned trial court, who presided and rendered judgment in both ■causes, deemed it unnecessary to determine whether fact issues were made with reference to the pleas of limitation and estoppel. We shall be guided by his decree, and affirm his judgment without passing upon Counterpoints Nos. 2 and 3.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    George LUND, Appellant, v. Avero Alanis ALANIS et al., Appellees.
    No. 14328.
    Court of Civil Appeals of Texas. San Antonio.
    July 31, 1964.
    Rehearing Denied Sept. 9, 1964.

      Barnes & Elick, McAllen, for appellant.
    Luther E. Jones, Jr., Corpus Christi, for appellees.
   PER CURIAM.

George Lund, a candidate for the office of Tax Assessor-Collector of Starr County, sued six hundred residents of that county to obtain a declaration that they may not vote' in the general election because their poll taxes were obtained without their authority and payment. The trial court dismissed the case for lack of jurisdiction and Lund has appealed.

Lund argues that the Declaratory Judgments Act provides a cumulative form of relief, which is in addition to his statutory right to challenge voters if and when they present themselves to vote, or by an election contest. The Declaratory Judgments Act does not, however, enlarge or create a new jurisdiction in courts. As Mr. Justice Lumpkin said in Cowan v. Cowan, Tex.Civ.App., 254 S.W.2d 862:

“The Act is remedial in nature and procedural in character. It .does not create jurisdiction in the courts over subjects in which they had no jurisdiction before the passage of the Act. Jt has only changed the method of exercising existing jurisdiction. r Thus, a court cannot assume jurisdiction of any cause of action under the authority of the declaratory procedure where it could not have assumed jurisdiction before its enactment.”

Accord, Killam v. Webb County, Tex.Civ.App., 270 S.W.2d 628. Our question, therefore, is whether the judicial branch has. jurisdiction to adjudicate the validity of poll taxes in anticipation of the voter’s, actual presentation at the polls sometime-in the future.

The general rule is that elections belong to the political branch of the government and are beyond the control of the judicial power. City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57, 59; City of Dallas v. Dallas Consolidated Electric St. R. Co., 105 Tex. 337, 148 S.W. 292; Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741; Winder v. King, Tex.Com.App., 1 S.W.2d 587. The only way that the judicial branch acquires jurisdiction over political matters is through the grant of such powers, and courts have no power to adjudicate cases other than those which the law has given to them. Wright v. Fawcett, 42 Tex. 203. While the Declaratory Judgments Act is an-additional remedy; the controlling point on this appeal is that neither before nor after the enactment of that Act has there been a grant of jurisdiction for courts to-decide in advance of the election which votes are valid and which are not. We have been cited to no grant of such powers to-the judicial branch, nor have we been able to find any.

Lund also has failed to bring himself within the rule that he must allege a justiciable controversy. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780. This means that he must show an actual dispute. He must allege facts from which he has a present legal right against those he names as de^ fendants. “The threatened risk to the plaintiff must be present and not contingent on the happening of some hypothetical future state of facts or events. * * * The purpose of the declaratory judgment act is to terminate controversies, not to begin them.” 1 Anderson, Declaratory Judgments (2d Ed.), § 14. Lund has not asserted any real dispute with any of the defendants. How many, if any at all, will ever present themselves to vote is not known, or that they will vote against Lund.. Presently the argument is hypothetical.

Lund has not asserted a justiciable interest. Not only must he show that there is a dispute, he must show that it is his dispute. The Declaratory Judgments Act affords private persons a remedy for private wrongs to them, but “Only lawfully constituted guardians of the public interest may maintain actions for the redress of such character of injuries.” San Antonio Conservation Soc. v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259, 263; Sullivan v. Universal Electric Const. Co. of Alabama, Tex.Civ.App., 227 S.W.2d 387; Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999; Deming v. Communist Party, 64 Cal.App.2d 35, 148 P.2d 135; 1 Tex.Jur.2d, Actions, § 8. Lund does not complain that his own right to vote is denied, 26 C.J.S. Declaratory Judgments § 79; and he recognizes that there are procedures to challenge each questionable voter. Arts. 8.09, 8.10, 8.32, Election Code, Vernon’s Ann.Tex.Stats. His action is brought because he says that the polls will become congested by the determination of so many challenges on election day. He therefore is asserting his action on behalf of the general public and falls within the rule stated in Yett v. Cook, 115 Tex. 205, 281 S.W. 837, 841, “ * * * there can be no doubt that in Texas an action relating to elections or other matters of law enforcement, not involving questions of taxation or unlawful expenditure of public funds, cannot be maintained by a relator or plaintiff whose interest is only that of the public generally, in the absence of a valid statute authorizing the suit. * * * ” Mr. Justice Pierson states the same rule in Staples v. State, ex rel. King, 112 Tex. 61, 245 S.W. 639, 641. “It is necessary for the state to be a party where the action is for the benefit of the public at large, though growing out of a party primary election. The statute cannot confer a right upon private individuals to act for all where it is shown they have no interest different from all others.” Accord, Board of Registration Com’rs. v. Campbell, 251 Ky. 597, 65 S.W.2d 713.

In our opinion the court lacked jurisdiction and properly dismissed the action. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    MIDWESTERN INSURANCE COMPANY, Appellant, v. Mrs. James Franklin VALENTINE, Appellee.
    No. 14304.
    Court of Civil Appeals of Texas. Houston.
    July 9, 1964.
    Rehearing Denied Sept. 24, 1964.

      Vinson, Elkins, Weems & Searls, Sam W. Davis, Jr., Houston, for appellant.
    Hicks, Dollahon & Wohlt, Willard E. Dollahon, Houston, for appellee.
   COLEMAN, Justice.

This is a workmen’s compensation case prosecuted by a widow and minor children, who are seeking benefits for total disability for the period from November 4, 1960, the date of an alleged injury to James Valentine, to the date of his death, November 16, 1961. The case was tried to a jury, and, based on its verdict, a judgment was entered for the plaintiffs.

Essentially appellant seeks to reverse this judgment on the ground that the evidence does not support the verdict since there is no testimony that in reasonable medical probability the accidental fall suffered by James Valentine resulted in the severe hypertension which caused his death.

There is evidence that on November 4, 1960, Valentine fell, striking his back on a pipe, causing a large bruise. He developed pain in his back which became so severe that seven or eight days after the fall he went to a doctor, who ordered hospitalization for testing and prescribed pills for pain. He was never able to work after that time. On January 1, 1960, before he was employed by the Wanda Petroleum Company, he was given a physical examination and was in good physical condition. Prior to the fall he testified that he had never had any back or kidney trouble; that he had never had any severe headaches or extreme high blood pressure, and had never been seriously ill.

After his first visit to the doctor the testimony reflects that he was in pain up to the date of his death. On February 14, 1961, he was admitted to the Veteran’s Administration Hospital, at which time he was suffering pain in his back and shoulders and tests indicated high blood pressure. He left the hospital in March and then returned in June suffering from severe headaches as well as back pain.

Doctor Rochelle, who treated Valentine at the Veteran’s Hospital, testified that when he first examined him in February, 1961, he complained of headache, pain in back and neck and loss of thirty pounds in weight. He made a tentative diagnosis of severe essential hypertension. He testified that in 80% to 90% of cases the doctor does not know what causes the hypertension, but when there is a demonstrable cause it commonly is kidney damage. He testified that a blow to the kidney could cause hypertension, and that the symptoms exhibited by Valentine were consistent with physical damage to one or both of his kidneys. He also testified that in his opinion the accident in question could very well have been the motivating factor or cause of his hypertension. He found no evidence of infection caused by germs or disease of any kind, nor of a tumor or a brain injury, which might be the cause of the high blood pressure, and these factors narrowed the possibilities to essential hypertension or kidney damage.

This testimony clearly supports the answers made by the jury to the issues submitted to them. James Valentine died prior to the trial of this case. The testimony of the doctor necessarily referred to a condition in existence rather than to a future condition. Medical testimony is admissible as to the possibility that a condition already in existence was caused by a prior injury. The duration and extent of disability must, be determined by the jury from all the pertinent facts, but their answers to such issues may be supported by the testimony of the claimant alone. American General Insurance Company v. Florez, Tex.Civ.App., 327 S.W.2d 643; Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772, ref. n.r.e.

After a careful review of all the evidence, we find that none of the answers made by the jury are so contrary to the weight and preponderance of the evidence as to be clearly wrong.

The judgment is affirmed.


author: JAMES D. CLEMENS, Special Judge.

text:
    Elaine SADLON, a Minor, by John E. Sadlon, Her Next Friend, Plaintiff-Respondent, v. Edward J. RICHARDSON et al., Defendants-Appellants.
    Nos. 31583, 31584.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.
    Rehearing Denied Oct. 13, 1964.

      McDonald, Barnard, Wright & Timm, Walter F. Timm, James E. McDaniel, Evans & Dixon, John C. Shepherd, Paul V. Gilbert, St. Louis, for defendants-appellants.
    Koenig, Dietz & Siebels, Leonard A. Siebels, William L. Mason, Jr., St. Louis, for plaintiff-respondent.
   JAMES D. CLEMENS, Special Judge.

This damage suit arose out of an inter-sectional collision between the two defendants’ automobiles. The plaintiff was a passenger of defendant Tacony, and he appeals from a $12,000‘verdict and judgment. The verdict was in favor of defendant Richardson, but the trial court set aside that part of the verdict as being against the weight of the evidence. The court then granted plaintiff a new trial as to defendant Richardson, on the issue of liability only, and he also appeals.

Defendant Tacony first complains that the trial court erred in not granting him a new trial for misconduct of a prospective juror in failing to truthfully answer a voir dire question about a prior claim for injuries. The jury panel was asked if there was anybody on the panel who either for himself, or a close member of his family, including brother or sister or husband or wife or some child, had ever been involved in an automobile accident and received injuries and made any claim. One of the prospective jurors, Mr. Lagerman, discussed a claim for his son which arose out of an automobile accident, and he also discussed a claim for his wife in another automobile áccident. Then counsel asked: “Thank you, Mr. Lagerman, for speaking up. Is there anyone else? * * * I assume from your silence Mr. Lagerman is the only one who has had any such experience.” One of the prospective jurors, a Mr. Kolasch, had made a claim for personal injury, which resulted from an automobile accident on September 13, 1960, but he failed to say anything about it. Mr. Kolasch was accepted as a juror, and joined in the verdict. Defendant Tacony complained of this in his motion for a new trial. The trial judge requested another judge to conduct a hearing, and juror Kolasch testified. Admittedly, two years before the trial he had been seated in his employer’s truck when it was struck from the rear. He received a neck strain, had X-rays taken and went to a doctor two or three times. He made a claim for this injury. He received $250, and signed two documents captioned “Release of All Claims” and also joined his employer in signing a similar document for damage to the truck. Mr. Kolasch’s employment was that of a freight claims adjuster. At the hearing Mr. Ko-lasch said he did not remember the question about'any claim he may have made. He also said he did not mention his claim because he had forgotten about it. A transcript of this hearing was referred to the trial judge. Thereafter, defendant Taco-ny’s motion for a new trial was denied.

Plaintiff contends that we should not consider the post-trial testimony of Mr. Kolasch because of the rule that testimony of a juror may not be received to contradict or destroy a verdict, citing Brady v. St. Louis Public Service Co., 361 Mo. 148, 233 S.W.2d 841(1). We accept the rule, but it is limited to matters inherent in the verdict, such as the juror’s understanding of an inquiry by the trial court during the jury’s deliberations, as in the Brady case. See 66 C.J.S. New Trial § 169c. Here the testimony of juror Kolasch was offered as to the verity of his examination on voir dire, not to impeach the verdict. The rule has no application here, and we will consider the juror’s testimony, just as trial and appellate courts have done in each of the cases hereafter cited.

The law concerning truth of prospective jurors’ answers to questions on voir dire was summarized by this court in the case of Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670, 1. c. 672-673: “ * * * The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean the right to a fair and impartial jury. * * * In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795. Nevertheless, the exercise of such a discretion is subject to judicial review, and if an appellate court concludes from the record that an abuse of discretion unmistakenly appears, it is its duty to reverse the ruling. * * * ”

Two comparable cases have been cited in which new trials were denied. In each the court approved the principles quoted in the Triplett case, supra. In both Barb v. Farmers Insurance Exchange, Mo., 281 S.W.2d 297(4,5), and Mantz v. Southwest Freight Lines, Inc., Mo., 377 S.W.2d 414 (1-4), the voir dire questions regarding “claims” asked of the prospective jurors were not definite. On appeal, it was held that each trial court was justified in finding that the prospective juror did not understand what was expected of him and did not intentionally conceal the desired information.

Three comparable cases have been cited in each of which the trial court denied a new trial, but was reversed on appeal. In these cases also the quoted principles from the Triplett case, supra, were followed. In each of the cases Triplett v. St. Louis Public Service Co., supra; Brady v. Black & White Cab Co., Mo.App., 357 S.W.2d 720, and Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, there was a definite voir dire question as to prior claims. In each, a juror had made a claim for injuries that called for an affirmative answer, but remained silent or answered in the negative. And, in each case the appellate court ruled that there had been an intentional concealment of a material fact, and that the trial court had abused its discretion in denying a new trial.

Here, we will follow the above quoted principles, as they were applied in the five cases last cited. We will, however, make one departure. The rule that on appeal we should give deference to the trial court’s finding of fact, Rule 73.01(d), V.A.M.R., is hardly applicable here. That rule is based on the trial court’s better opportunity to observe the demeanor and appraise the mentality of witnesses. Herzog v. Ross, 358 Mo. 177, 213 S.W.2d 921(6); Spitcaufsky v. Guignon Real Estate Co., Mo., 321 S.W. 2d 481(12); Davis v. Ashlock, Mo., 338 S.W.2d 816(3); and see 5A C.J.S. Appeal and Error § 1656(3). Here, the post-trial hearing was conducted by another judge, and the trial judge had only a transcript of that hearing, as do we. So, are in equally as good a position to assess the evidence adduced there. The ultimate issue for us to determine is whether there was an intentional concealment of a material fact by the prospective juror, and whether defendant Tacony was prejudiced thereby.

The voir dire question here was clear. The panel was asked if any of them “had ever been involved in an automobile accident and received injuries and made a claim.” Just two years before, Mr. Kolasch had been involved in an automobile accident, he had received injuries, and he had made a claim. The preceding prospective juror, Mr. Lagerman, had responded by relating two claims for injuries arising from automobile accidents. The other members of the panel were then given another opportunity to respond, but Mr. Kolasch said nothing. The nature of his employment, that of a freight claims adjuster, would indicate that Mr. Kolasch understood what a “claim” was. We hold that the question would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit, and that to rule otherwise would be a mockery of the prospective jurors’ solemn oath and duty to respond truthfully to pertinent questions touching upon his qualifications. Brady v. Black and White Cab Co., supra, (4). Then, at the post-trial hearing, Mr. Kolasch gave a double tongued explanation for not answering; that he did not remember the question having been asked, and that he had forgotten about his claim. From all this we can but conclude that there was a deliberate concealment of material information touching the prospective juror’s qualifications. Thereby, defendant Tacony was deprived of his right to make further inquiry to determine whether Mr. Kolasch’s accident, injuries and claim would prejudice him as to a fair trial, and precluded defendant Tacony from intelligently exercising his peremptory challenges. The liability here was closely contested, and it follows that the error was prejudicial. Mantz v. Southwest Freight Lines, supra, (1), and Piehler v. Kansas City Public Service Co., supra, (7). Defendant Tacony is entitled to a new trial.

We pass now to defendant Richardson’s appeal. As stated, he had a favorable verdict but the trial court set aside that part of the verdict as being against the weight of the evidence. The court then granted plaintiff a new trial as to defendant Richardson on the issue of liability only. The plaintiff’s $12,000 judgment against the defendant Tacony was ordered held in abeyance pending a re-determination of defendant Richardson’s liability. On this appeal, defendant Richardson does not quarrel with the trial court’s general right to grant a new trial on the ground that the verdict was against the weight of the evidence. His complaint is that there has been no $12,000 ■damage verdict against him, and that if he ■must stand a new trial, it should be on both •issues of liability and damages. Plaintiff contends to the contrary, saying that the amount of her damages has been fully litigated without claim of error, and that Richardson is hound by that part of the verdict if he is found liable on a new trial. We need not decide these contentions. Both contentions are premised on the validity of the verdict as to defendant Tacony. But, the verdict of liability and damages against defendant Tacony was tainted by the prospective juror’s conduct, so both issues must be re-determined by a jury on a new trial. It follows that as to defendant Richardson, there has been no valid verdict as to plaintiff’s damages and that issue is still open. For that reason defendant Richardson is entitled to have the new trial on both issues of liability and damages.

The judgment is reversed, and the cause is remanded for a new trial as to both defendants on all issues.

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

ANDERSON, J., not participating.


author: L. F. COTTEY, Special Judge.

text:
    Ras BUCKNER, (Plaintiff) Appellant, v. WESTERN LIFE INSURANCE COMPANY, Garnishee, Respondent, C. Y. Abernathy and H. J. Crittenden, Defendants.
    No. 31707.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      W. W. Sleater III, St. Louis, for appellant.
    R. H. McRoberts, Jr., St. Louis, for respondent-garnishee.
   L. F. COTTEY, Special Judge.

Plaintiff, endeavoring to collect his judgment against defendant Crittenden, summoned Western Life Insurance Company as garnishee. The garnishee’s answer denied that it had, or since the date of service of the writ upon it had had, in its possession or under its control any moneys or credits belonging to Critten-den. The answer was traversed and, upon the issue thus raised, judgment was entered in favor of the garnishee. From that judgment plaintiff appeals.

The cause was submitted upon an agreed statement of facts from which it appears that at all times pertinent to the inquiry Crittenden had been employed by the Company to collect premiums as they became due on life insurance policies which it had issued to a number of persons in the St. Louis area. The written contract between the Company and Crittenden authorized him to issue the Company’s receipt for each premium paid to him and stipulated that he should receive for his services a commission of 10% to 25% of the premiums he collected, the same to be “payable as premiums are paid in cash to the Company.” The quoted clause was probably intended to require Crittenden to remit his collections in full to the Company, from whom he would afterwards receive a check for the commissions earned; but the business was never actually handled in that manner. It was Crit-tenden’s uniform practice, with the Company’s approval, to deduct his commission from each collection and to remit to the Company only the net remaining portion of the premium. We will therefore treat the contract as having been amended by the parties to authorize that practice. Following that practice, between the date of service of the writ and the return date thereof, it stands admitted that Crittenden collected premiums in the gross amount of $3,253.73 from which he deducted his commissions in the aggregate amount of $976.82, remitting to the Company only the net balance of $2,276.91.

It is plaintiff’s position that this arrangement has resulted, for all practical purposes, in the payment by the garnishee of $976.82 to Crittenden in disregard of the writ; hence, that the garnishee is liable to plaintiff for that exact sum. The garnishee, on the other hand, insists that under the admitted facts the commissions deducted by Crittenden were never in its possession or under its control; hence, that there is no liability to plaintiff under the writ.

The precise question seems never to have arisen before. Plaintiff cites only the statutes relating to garnishments, of which only Section 525.040, RSMo 1949, V.A.M. S., need be noticed at the moment. It provides that the writ “ * * * shall have the effect of attaching all personal property * * * credits * * * or other choses in action of the defendant in the garnishee’s possession or charge, or under his control at the time of the service of the garnishment, or which may come into his possession or charge, or under his control, or be owing by him, between that time and the time of filing his answer.” The garnishee’s authorities, with a single exception to be discussed in the next paragraph, go no farther than to announce the general rule that a credit is not susceptible of garnishment as the property of a defendant unless it be in the possession of the garnishee at some time during the effective life of the writ, nor unless the defendant can himself maintain an action against the garnishee for its value. 38 C.J.S. Garnishment § 70, p. 265; Ralston Purina Co. v. King, Mo.App., 101 S.W.2d 734; Mississippi Valley Trust Co. v. Francis, Mo.App., 186 S.W.2d 39. Thus the statute and the rule. Our problem is to determine whether Crittenden’s appropriation of his commissions at the time he collected the premiums brings the credit sought to be garnished in this case within the purview of the one or the application of the other.

The garnishee cites Sheridan v. Short, Mo.App., 237 S.W.2d 230, as authority for the proposition that at no time has it had in its possession or under its control the commissions which Crittenden deducted from his collections; hence, that the writ could not reach them. In that case the garnishees were engaged in the business of baking doughnuts in wholesale lots. They did not sell them directly to retailers or other consumers, however. Instead, they delivered them on consignment to the drivers of their trucks at a fixed price per dozen or other unit, and the drivers, in turn, acting on their own initiative as jobbers, sold them to whatever customers they could find and apparently at whatever prices they could get. At the end of the day the drivers settled up by paying the garnishees the consignment cost of the doughnuts they had disposed of. All proceeds in excess of that cost were retained by the drivers as “commissions” on the sales they had made. Plaintiff’s judgment debtor was one of garnishee’s drivers. She summoned the garnishees in an effort to attach in their hands whatever sums they might be obligated to pay him. The court held that the garnishees were not liable for the money retained by him out of the proceeds of his sales. The rationale of the ruling is found in this sentence, 237 S.W.2d 1. c. 231, “It thus appears that whatever money Sheridan (the judgment debtor) earned accrued to him personally as his commission whenever he made a sale of doughnuts, and that the company never owed him such amount.” We agree with that ruling. It will be observed, however, that throughout the opinion the term “commission” has been used inexactly as a synonym for “profit”. Sheridan sold nothing on a commission basis. The arrangement between him and the garnishees afforded no occasion for them to become indebted to him for “commissions” or anything else. He bought the doughnuts from the garnishees at an agreed price and sold them to his own customers on his own terms, in every respect as an independent dealer in the conduct of his own private enterprise. The difference between the cost of the merchandise to him and the price he received for it on re-sale was patently his profit on the business; obviously it accrued to him personally as the case says, and “the company never owed him such amount.” A wholesaler is never indebted to his jobber or retailer for the latter’s profit. It is not a credit in the wholesaler’s possession or under his control, and garnishment cannot reach it. The only basis for the claimed analogy between the Sheridan case and this, then, is the unfortunate confusion of the terms “commission” and “profit,” and it entirely disappears when that confusion is dispelled.

The dissimilarity between the two cases, on the other hand, becomes even more manifest as their facts are analyzed. In this case, for instance, there was a contract between the garnishee and each of its policyholders whereby the latter became indebted to the former to the extent of the premiums specified in the policies. Crit-tenden merely collected those debts for the garnishee as they fell due, and for that purpose he was clearly the garnishee’s agent. It follows that when a policyholder paid a current premium to Crittenden and received from him the Company’s authorized receipt therefor, it was in law and in fact a payment to the Company of a debt due the Company. “Payment to the authorized agent of a creditor by the debtor is equivalent to payment to the creditor himself.” Golden v. O’Connell, 76 W.Va. 282, 85 S.E. 533, 2 A.L.R. 460, 461. So, it was the Company’s money; and it was in the Company’s possession because the agent’s possession is the possession of the principal. McNeill v. Fidelity & Casualty Co. of New York, 336 Mo. 1142, 82 S.W.2d 582, syllabus 1. But in the Sheridan case there was no agency. No contract whatever existed between the wholesalers and the ultimate purchasers of the doughnuts. The latter were unknown to the former. The purchasers bought their doughnuts from Sheridan as an independent entrepreneur. They owed him for them, not the wholesalers; and when they paid him for them it was payment of a debt due him, not the wholesalers. All the money Sheridan received belonged to him personally; none of it was collected by him as agent for the wholesalers, and the fact that he was independently indebted to the wholesalers for the initial cost of the merchandise is a totally irrelevant circumstance. It was necessary that the wholesalers be indebted to him for the writ to prevail.

To examine this aspect of the problem a little further: It may be conceded that money in the possession of an agent is ordinarily in the possession of his principal only when it has been received by the agent in payment of a debt due the principal. If an agent receives money in payment of a debt due himself, that money is his; the principal has no concern with it, no control over it, and no possession of it To avoid the implications inherent in the concept of Crittenden’s agency in this case, then, it is necessary for the garnishee to take the position that the premiums collected by Crittenden from the policyholders were not entirely in payment of debts due his principal, but that a portion of them ''accrued to him personally as his commissions,” just as Sheridan’s profit on his sales of doughnuts “accrued to him personally;” hence, that he received that portion as . payment of a debt due himself, and the garnishee had no control over it and no possession of it. The trouble with that proposition is that it necessarily proceeds upon the assumption that the policyholders owed Crittenden his commissions; otherwise, the money received from the policyholders could in no sense constitute the payment of a debt due Crit-tenden. But, of course, the policyholders owed Crittenden nothing. They had no contract whatever with1 Crittenden, they bought their policies directly from the garnishee, they owed only the garnishee for them, and when they paid their premiums it was payment of a debt due solely to the garnishee. The situation in the Sheridan case was the exact opposite. There the buyers of the doughnuts had no contract whatever with the garnishees, they bought their doughnuts directly from Sheridan, they owed only Sheridan for them, and when they paid the purchase price it was payment of a debt due solely to Sheridan.

Confirming our view that the money collected by Crittenden was all premium— hence, a debt due solely to the garnishee— is the fact that neither the policies themselves nor the law generally affords any basis for regarding these collections as being somehow divisible into separate funds, one to be termed “net premium” and treated as belonging to the Company, and the other to be termed “commission” and treated as belonging to Crittenden. Were it otherwise, then it would have been allowable for Crittenden to have collected from a policyholder whom he desired to favor only, say, 75% of the premium stipulated in the policy, voluntarily relinquishing his 25% commission; and by the same token the Company would have been obliged to continue the policy in force upon receipt of that amount since it would represent the only portion of the premium to -which it had any legitimate claim. But that practice is expressly prohibited by. our anti-discrimination statute, Sec. 377.360, RSMo 1949, V.A.M.S. The garnishee was required by that statute to charge each of .its policyholders the same amount for the same -risk, and it was obliged to collect, the full premium from all in order to avoid giving one an advantage over the others. Sor we say again, the money collected by Crittenden was all premium — a debt due solely to the garnishee.

The. plain fact is that simultaneously with the collection of a premium by Critten-den there arose on the part of the Company an obligation to pay him his agreed commission on it. This the Company could do in either of two ways:. (a) by sending him a check for it, or (b). by permitting him to deduct it from the money he collected. Let us suppose, now, that the Company had by contract specified, or by custom adopted, the first method. Would it not be conceded in that event that between the date the commission was earned and the date it was paid, a credit for the amount would have existed on the Company’s books in Critten-den’s favor, and the writ in this case would have reached it? That was the situation and that was the holding in Steer v. Dow, 75 N.H. 95, 71 A. 217, 20 L.R.A., New Series, 263. How, then is the situation fundamentally changed by the fact that the second method was used ? By way of illustration, suppose Crittenden had been employed as a clerk in the Company’s office at a salary of $100 per week, and by long standing practice he had been allowed to take $100 from the ' Company’s cash drawer each Saturday night in payment of his salary. Could it be urged with any semblance of logic that that was not, in fact, a payment of the debt to him, or that it was not, in fact, a payment by the Company out of Company money? That was substantially the situation and that was the holding in Dinkins v. Crunden-Martin Woodenware Co., 99 Mo.App. 310, 73 S.W. 246. Crittenden’s commissions were simply his wages. They were due absolutely, free from any condition 'or contingency, the moment he earned them ■ by collecting the - premiums. The money he collected from the policyholders was to all legal intents and purposes money in the Company’s cash drawer, and the fact that he was’ authorized to withdraw his commissions from'it does not make it any less a payment of those commissions to him by the Company. Indeed,' if it was not payment, then the debt is surely still due: The inescapable conclusion is that by either method we arrive at the same result: The garnishee owed Crittenden and the garnishee has paid him, in disregard of the writ. It begs the question to sky that Crittenden cannot maintain an action against the garnishee for his commissions. Of course, he cannot now do so; blit only because he has been paid. And it is equally futile to suggest that he “paid himself,” in a manner of speaking, and the Company had nothing to do with it. If he paid himself he did so as the Company’s agent, with the Company’s connivance, and his act in doing so is the Company’s act. “What one does by another he does by himself.” State v. McClure, 325 Mo. 1228, 31 S.W.2d 39, 46.

The judgment must therefore be reversed and the cause remanded with instructions to the trial court to enter its order requiring the garnishee to pay into court the sum of $976.82 for the plaintiff’s benefit, as'pfovided by Section 525.080, RSMo 1949, V.A.M.S., and, in the event of the garnishee’s failure to do so, to enter judgment against the garnishee for said amount, as provided by Section 525.200, RSMo 1949, V.A.M.S.

It is so ordered.

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

WOLFE, J., not participating.


author: DOUGLAS W. GREENE, Special Judge.

text:
    Elmer CRULL, (Plaintiff) Respondent, v. Thurman GLEB, Defendant, Allied Western Mutual Insurance Company, Garnishee, Appellant.
    No. 31652.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.

      Lashly & Neun, Paul W. Lashly, Hiram W. Watkins, St. Louis, for defendant-appellant.
    Dearing, Richeson, Weier & Roberts, H. L. C. Weier, Hillsboro, for plaintiff-respondent.
   DOUGLAS W. GREENE, Special Judge.

The facts involved in this cause are somewhat novel. Respondent Elmer Crull, hereinafter referred to as plaintiff, and defendant Gleb were neighbors, both living on Cedar Springs Road in Jefferson County, Missouri. A controversy had arisen between them concerning a drainage ditch dividing their land, a by no means uncommon source of litigation in rural areas. On May 24, 1958, plaintiff was dumping debris in the ditch to change its flow, when he was seen by defendant, who was then at his home. Defendant got in his pickup truck and drove down the road toward plaintiff, who got in his automobile and started backing it down the road. Defendant kept coming, and struck plaintiff’s car head on, and then struck plaintiff’s car three more times, all head on, within a distance of 150 to 200 feet with enough force to bend the frame and break the crankshaft bearing on plaintiff’s car. Finally, plaintiff backed, or was knocked into a driveway, whereupon defendant blocked the driveway with his truck, and left on foot, supposedly to call the sheriff. However, plaintiff was able to pull around defendant’s truck and leave before defendant returned.

Suit was filed on September 12, 1958 by plaintiff, alleging that the acts mentioned above were done by defendant deliberately and purposely. Defendant was insured by the Western Millers Mutual Insurance Company, whose name was later changed to the Allied Western Mutual Insurance Company, hereafter referred to as garnishee.

The policy provided liability coverage to defendant, and promised to pay on his behalf subject to all of the terms of the policy, all sums which the insured may become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death resulting therefrom, and injury and destruction to property arising out of the ownership or use of defendant’s automobile, and to defend suits alleging such damages, and to pay all expenses incurred by company, all costs taxed against insured, and interest on any judgment rendered before company tendered into court the amount of judgment not exceeding the policy’s liability limits.

The policy stated that it did not apply to bodily injury or property damage caused intentionally by or at the direction of the insured.

After defendant was served, and garnishee was notified of such service, garnishee advised defendant to obtain independent counsel and defendant did so. It was agreed, under a covenant, that garnishee would assist in defendant’s defense, withont waiving any right to thereafter raise the defense of no coverage if the acts of defendant were intentional. Thereafter, on January 5,1959 plaintiff filed an amended petition in two counts. In Count One, defendant was charged with ordinary negligence in driving and operating his truck so that it collided with defendant’s automobile, and, in Count Two, plaintiff alleged that defendant’s acts in repeatedly striking plaintiff’s automobile four or- five times were reckless and wanton and that defendant knew, or should have known, that there was a strong probability that serious harm might result to plaintiff by reason of such acts.

Plaintiff asked for actual damages in Count One, and for actual and punitive damages in Count Two.

Garnishee obtained a supplemental covenant with defendant and defendant’s personal counsel to the effect that further action and participation in the case by garnishee’s counsel would not waive any policy defenses. Garnishee tendered no defense to defendant on the issue of punitive damages in Count Two of plaintiff’s petition, and such defense was undertaken by defendant’s personal attorney. Thereafter, on June 25, 1959, the case was tried before a jury, and the jury returned a verdict of $1,500 actual damages and $2,000 punitive damages, making a total judgment of $3,500. A writ of garnishment was filed, and interrogatories to garnishee were filed on January 11, 1960. Answers to said interrogatories were filed on January 14, 1960, and denial of garnishee’s answer was filed on January 15, 1960. In said denial, plaintiff stated garnishee was indebted to him in the stun of $3,500, with interest, as the result of the judgment of June 25, 1959, and that the accident which gave rise to the litigation was caused by the careless, wanton and negligent operation of defendant’s truck. It stated that no part of the judgment had been paid and prayed judgment against garnishee for $3,500, with interest at 6% from June 25,1959.

In its reply filed on January 29, 1960, garnishee denied liability to plaintiff, stating the policy did not cover wanton, reckless and intentional conduct of defendant, and that the aforesaid accident was caused by and judgment rendered as the result of the wanton, reckless and intentional conduct of defendant.

The cause was submitted to a jury on January 30, 1963. The parties stipulated to most of the relevant facts involved.

In the stipulation, which was in the unusual form of rather lengthy statements made by counsel for both parties to the jury, it was agreed that the principal issue for the jury was whether or not the actions of the defendant in causing the accident in question were intentional. Nothing was mentioned in the stipulation as to whether or not garnishee was liable for that part of the judgment ($2,000) which represented punitive damages. It was stipulated that the amount of coverage under the policy was in excess of $3,500, plus interest.

Garnishee, at close of plaintiff’s evidence, and again at close of all the evidence, filed motions for directed verdict. In both motions, garnishee stated that plaintiff was damaged and injured as result of defendant’s intentional acts and, therefore, could not recover, and, in the alternative, that the policy did not cover awards of punitive damages and, therefore, garnishee should receive a directed verdict on the punitive damages issue. Both motions were overruled. At close of all the evidence, plaintiff offered instruction (P-1), which was given by the court, over the objection of garnishee, which instruction reads as follows :

“The Court instructs the jury that plaintiff, Elmer Crull, filed suit against defendant, Thurman Glebb, alleging that he had been damaged by the wanton and reckless acts of negligence of defendant Glebb and that upon trial to a jury, it was the verdict of the jury and the judgment of this Court that plaintiff Crull have and recover of the defendant Glebb actual damages in the •sum of $1,500.00 and punitive damages ■in the sum of $2,000.00.
“The Court therefore instructs you that if you find and believe from the •evidence that at the time of the collision between the vehicles operated by the ■plaintiff and the defendant, on the 24th day of May, 1958, injury to plaintiff and •damages to his property were not caused by the defendant intentionally, but rather by reckless and wanton acts of •negligence, and if you further find that no amount has been paid to ■plaintiff on his judgment, then you •will find the issues in favor of plaintiff .and against the garnishee in this proceeding.”

The jury returned a verdict against garnishee and for plaintiff in the sum of $3,500. From the overruling of garnishee’s motion for new trial, garnishee appeals.

Garnishee relies on three points. First, that the evidence shows that the series of •collisions mentioned in evidence were intentional, and that therefore no coverage was •afforded by the policy. Second, that plaintiff’s verdict directing instruction (P-1) was erroneous in that it failed to hypothesize •sufficient facts to support a verdict, and in that it unduly emphasized needless facts, .and, third, that garnishee is not liable for punitive damages under the terms of its policy.

As to the first assignment of error, garnishee contends that plaintiff’s own evidence ■showed that the series of collisions mentioned in evidence were intentional, and, therefore, no coverage was afforded. At the trial, defendant stated that he was driving an old truck with a straight shift and that he was not familiar with its operation; that the clutch pedal was slick, and had no rubber pad on it; that he had the throttle out to keep the truck running, and that his foot kept slipping off the clutch', and that he became excited and lost his presence of mind, and that this was the reason for the •collisions. He stated he did not intentionally strike the front of defendant’s car. Plaintiff, in his testimony, stated “the old truck looked like it was getting away from him (defendant) or doing something.”

Where the verdict is for the plaintiff, the appellate court, in determining whether the trial court erred in refusing a motion for directed verdict, must take plaintiff’s evidence as true, where it is not entirely unreasonable, or contrary to physical fact. Sollenberger v. Kansas City Public Service Co., 356 Mo. 454, 202 S.W.2d 25; Lanhan v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 243.

The reviewing court does not weigh evidence, it determines only if there was substantial evidence to support a verdict. Harp v. Illinois Central Ry. Co., Mo., 370 S.W.2d 387.

The only real issue to be submitted to the jury was whether defendant Gleb’s acts, as hereinbefore set out, were intentional. If they were, garnishee was not liable under its policy defense. The word intentional, as used here, means deliberately and consciously intending, or meaning, to do the acts themselves, knowing that they were wrong, and intending that harm result from said acts.

There is subtle difference between the terms “intentional” and “wanton and reckless,” when those terms are used in connection with the acts of drivers of motor vehicles, and the accidents and injuries that occur as a result thereof. A wanton act, under such circumstances, has been defined as a wrongful act done on purpose, or in malicious disregard of the rights of others, Voss v. American Mutual Liability Insurance Co., Mo.App., 341 S.W. 2d 270, 279, and reckless as an indifference to the rights of others, and an indifference as to whether injury is done or not as the result of such act. Evans v. Illinois Central Ry. Co., 289 Mo. 493, 233 S.W.2d 397, 400. Where used together, wanton and reckless mean that the act was intentionally done, without regard for the consequences. In other words, there was a conscious intent to do the act, knowing it was wrong, but no conscious intent to inflict or cause the harm that followed. Wanton and reckless conduct may, and often does, include negligence. McClanahan v. St. Louis Public Service Co., 363 Mo. 500 en banc, 251 S.W.2d 704, 707. Intentional conduct does not. Therefore, wanton and reckless acts of the insured do not amount, in law, to intentional acts so as to permit an insurer to deny coverage under the provision of a clause, in a liability insurance policy, which provides that it does not provide coverage for injury intentionally caused by insured. Peterson v. Western Casualty and Surety Co., 5 Wis.2d 535, 93 N.W.2d 433, 437, Sheehan v. Goriansky, 321 Mass. 200, 72 N.E. 2d 538, 541, 173 A.L.R. 497.

We hold that plaintiff’s evidence, as listed above, would have made a case for the jury on the issues involved, if the issues had been properly defined and limited by the court. We rule this point against garnishee.

Garnishee (appellant) next urges that plaintiff’s verdict directing instruction (P-1), as previously set out herein, is reversibly erroneous, in that it fails to hypothesize sufficient facts to support a verdict, and unduly emphasizes needless facts. This argument is well taken. No single fact of the accident itself is hypothesized except the date thereof. The jury is told that if it finds that the plaintiff’s injury was not caused by defendant intentionally, but rather by reckless and wanton acts of negligence * * *, then plaintiff should recover. The jury was not instructed as to what terms intentional or reckless and wanton meant, and no facts were hypothesized from which a finding of either could be made.

Further, the instruction singled out, and unduly emphasized, that a prior jury and the trial court had previously found that plaintiff had been damaged in the sum of $1,500 actual damages and $2,000 punitive damages by the reason of wanton and reckless acts of the defendant. This was the finding that the jury was required to make in the present case, and where, as here, such previous finding was not binding on the garnishee, since it was not a party to the previous action, and where the previous jury had no opportunity to determine whether the acts of defendant were intentional acts or wanton and reckless ones, the instruction, by giving undue prominence to the finding of the prior jury and court, was erroneous. Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102, 108, Bittner v. Crown Shoe Mfg. Co., Mo.App., 340 S.W.2d 142, 1. c. 151.

Garnishee’s third argument is that the verdict is against the law for the reason that garnishee is not liable for the $2,000 punitive damages, rendered against defendant in the initial action, under the terms of the policy of insurance issued by garnishee to defendant Gleb.

Plaintiff urges that the parties had stipulated that the intent of the defendant was the sole issue to be tried in the garnishment action, and, therefore, the question raised as to the garnishee’s liability for punitive damages should not be considered on appeal. While we have no quarrel with plaintiff’s position that issues not raised in the trial court shall not be considered on appeal, we do not feel it is applicable here. Whether or not garnishee was liable for punitive damages was a question of law for the trial court, and was an issue that was not subject to stipulation, had such been attempted, which it was not, and, secondly, garnishee raised such issue at every available opportunity, by its pleadings, motions for directed verdict at close of plaintiff’s evidence, and at the close of all the evidence, and in his motion for new trial. Plaintiff’s point is not well taken, and we will consider the issue on the merits. This, surprisingly, is a question of first impression in Missouri.

In order for a plaintiff to recover punitive damages in Missouri, he must prove malice, either actual or legal. In actual malice, the action is motivated by hatred or ill will. Legal malice is the intentional doing of a wrongful act without just cause or excuse in reckless disregard of the rights of others. Zumwalt v. Utilities Insurance Co., 360 Mo., 362, 228 S.W.2d 750, 756, Reel v. Consolidated Investment Co., Mo., 236 S.W. 43, 46. Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628, 636.

The chief purpose of punitive damages is punishment to the offender, and a deterrent to similar conduct by others. State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757, 761, Polk v. Missouri-Kansas-Texas Ry. Co., 351 Mo. 865, 174 S.W.2d 176, 180.

This being true, it seems only just that the burden of paying punitive damages should rest ultimately, as well as nominally, on the party who actually committed the wrong. If the defendant Gleb was permitted to shift to garnishee the burden of the punitive damage award, then the award would have served no purpose. Plaintiff would have already been made whole through his compensatory damages, and the insurance company, which had done no wrong, would be punished. There is no language in the policy that provides for the payment of judgments for punitive damages. The policy covers only damages for bodily injury and property damage sustained by any person. Punitive damages do not fall in this category. The $2,000 award of punitive damages to plaintiff was to punish defendant for his wrongful acts and as a warning to others. It was not to compensate plaintiff for bodily injury or property damage. The garnishee did not participate in the wrong, and was under no contract to indemnify as such. Universal Indemnity Insurance Co. v Tenery, 96 Colo. 10, 39 P.2d 776.

We hold that to allow a motorist to insure himself against judgments imposed against him for punitive damages, which were assessed against him for his wanton, reckless or willful acts, would be contrary to public policy.

Our highway safety problems have greatly increased. Death and destruction stalk our roads. The peaceful Sunday afternoon family drive through the hills has been abandoned by many as the result of brushes with near death at the hands of half-baked morons drunkenly weaving in and out of traffic at 80 or 90 miles per hour.

Criminal charges, convictions, and fines, are not a complete answer. These may be some atonement to society by the offender, but they have little deterring effect on others. In order for the theory of punitive damages (i. e. punishment and deterrent) to work, the delinquent driver must not be able to transfer his responsibility for punitive damages to others.

Public policy against such coverage is based on the thesis that wrong-doing is discouraged by the imposition of personal punishment. If a person is able to insure himself against punishment, he gains a freedom inconsistent with the establishing of sanctions against such misconduct. It is undisputed that insurance against criminal fines would be void as violative of public policy. The same public policy should invalidate any insurance contract against civil punishment that punitive damages represent. Northwestern National Casualty Co. v. McNutty, U.S.C.A. 5th Cir., 307 F.2d 432, and cases cited therein.

The judgment is reversed and cause remanded, for a new trial on the issue of the compensatory damages only.

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


author: WOLFE, Judge.

text:
    Olga FULTZ, (Plaintiff) Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, (Defendant) Appellant.
    No. 31504.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.
    Rehearing Denied Oct. 13, 1964.
    John Mohler, Leo E. Eickhoff, Jr., Donald K. King, St. Louis, for appellant.
    Padberg & Raack, St. Louis, for respondent.
   WOLFE, Judge.

This is an action for damages arising out. of personal injuries which the plaintiff sustained when the automobile which she was. driving was struck by a truck owned and operated by the defendant. The defendant counter-claimed for damage to the truck.. There was a verdict and judgment on the plaintiff’s cause of action for the plaintiff in the sum of $7,500, and a verdict and judg-Tue'.Ht for the plaintiff on the defendant’s counter-claim. Thereafter the defendant filed a motion for a judgment in accordance with its motion for a directed verdict or, in the alternative, a motion for a new trial. The trial court overruled the defendant’s motion for a judgment and overruled the motion for a new trial, contingent upon the plaintiff remitting $2,000 from the judgment entered. The remittitur was made by the plaintiff, and from the judgment so reduced the defendant prosecutes this appeal.

The collision by which the plaintiff was injured occurred at the intersection of Mc-Causland and Dale Avenue in the City of St. Louis, on January 23, 1961. McCaus-land runs in a north and south direction, .and Dale runs to the east and west. Mc-Causland is about 40 feet in width and ■carries four lanes of traffic. The lanes are about ten feet wide, and two are southbound ■and two are northbound. Dale is a three-lane street. The traffic at the intersection is controlled by traffic signal lights. A left turn may be made at the intersection on the •green light, but cars making the left turn are obliged to yield to those proceeding ¡straight ahead.

The plaintiff testified that she was fifty-<one years of age and was employed as a waitress. She lived in an apartment on the east side of McCausland. After 4:00 P.M. no parking was permitted on McCausland, .and she left her apartment at about four •o’clock to move her car, which was parked ■on the west side of the street. She intended to drive a short distance south on Mc-'Causland to its intersection with Dale, and then to go east on Dale to an alley where •she could park the car. She drove the short ■distance south, and her car was in the lane nearest the center of McCausland. It was necessary for her to make a left turn at the Dale intersection. Her signal flasher was operating as she came to the intersection. She stopped her car at the line for a crosswalk as the light was red.

On the opposite side of Dale and headed north a large truck was stopped and waiting for the signal to change. It was in thf northbound lane near the center line of Mc-Causland, and signaling that it was going to turn toward the west. There were cars behind the truck. When the light changed the driver of the truck facing north signaled the plaintiff to proceed in front of him ic her left turn.

McCausland slopes upward to the south of the intersection to the crest of a hill, and no cars beyond the crest can be seen from the intersection. The crest of the hill was estimated by the plaintiff to be ISO feet south of the intersection. When the signal turned green, plaintiff turned her car in front of the truck facing her and stopped and looked up the hill. She could see all the way up the hill to the crest. She saw no vehicles approaching and she proceeded to cross the northbound lane of McCausland. She looked ahead and did not again look south.

She estimated her speed to have been about five or eight miles per hour across the east lane of McCausland. She said that it was not more than eight, and that her speedometer was at five miles per hour at the time the car was struck. She traveled until the front of her car was about two or three feet beyond the east curb line of Mc-Causland and into Dale. It was then that her car was struck by the defendant’s truck, which was traveling north on McCausland. .Her car was a two-door sedan and was struck approximately in the center of the right side. The damage to the car extended over the door and back over the body of the car to the right rear wheel. She said that the force of the collision threw her to the left, and she was thrown against the door and her leg struck the emergency brake. The left door opened, and the back of plaintiff’s car was pushed to the north curb by the force of the collision.

The plaintiff called to the stand two boys who witnessed the accident. One was named Bobby Watts, who was fourteen years of age. He testified that he was standing on the northeast corner of Dale and Me-Causland, and that he saw the plaintiff signal for a left turn as her car came into the southbound left-turn lane. He said that in the northbound left-turn lane there was a large City Products Coal truck. There were cars behind the coal truck. He said that the driver of the coal truck signaled for the plaintiff to turn in front of him, and that she made the turn at a slow, continuous speed of not more than five miles per hour. He said there were no cars in the curb lane for northbound traffic, but he had no recollection of the plaintiff stopping before entering the outside northbound lane. As she crossed this lane, her car was struck by the defendant’s truck. He did not notice the defendant’s truck as it approached plaintiff’s car until it was 10 feet away. After the collision defendant’s truck went beyond the intersection and came to a stop by the east curb of McCausland. He could not estimate the speed of the truck before it hit plaintiff’s car, but it seemed to him that the car was going 35 miles per hour as it came from the place of the collision and stopped.

The other boy who testified was Mike Olsen, age twelve. He saw the plaintiff’s car pull up in the left-turn lane for southbound traffic. He said that plaintiff turned left in front of a large truck after the driver had waved her on. The truck was in the left-turn lane for northbound traffic. The curb lane for northbound traffic was free of traffic, as far as he could see. He saw defendant’s truck coming toward her from a position 84 feet back from the curb line of Dale Avenue. He had paced off the distance from the curb to where he had seen the truck, and it was 40 paces. It was agreed that forty of his paces would equal 84 feet. He said that the truck did not slow up, and when the front of plaintiff’s car was a foot or two into Dale, the defendant’s truck struck her car. At another point in his testimony he was asked, “The telephone truck had to drive these 40 steps while Mrs. Fultz was just going across the one lane? A. Yes, it did.”

Defendant’s driver was called as a witness in the defendant’s case, and stated he was employed as a coin collector. His work was to take coins collected from certain coin-operated telephones consigned to him down to the main Telephone Company office. He had completed his collection for the day and was on his way to turn in the money. He stated he was going north on McCausland and was driving a company truck. He said that he had been traveling in the inside lane but switched over, and that he was in the outside lane as he came to the crest of the hill south of the Dale Avenue intersection. He shifted into second gear as he approached the intersection. He said he came down the hill at a speed of 25 to 30 miles per hour. As he came down its outside lane there were some cars in the inside lane behind a large truck waiting for the light to change. He said that the light turned green when he was about 30 feet from the intersection, that he had slowed his truck down, and that when he was 15 feet away from the intersection the plaintiff pulled out in front of him. He said she was just moving into the outside lane and was about six feet north of the standing truck when he first saw plaintiff’s car. He said that at the time he was going 15 miles per hour. He applied his brakes but hit her car. He said that had plaintiff gone ten more feet he would not have hit her.

He did not know the distance in which he could stop the truck, but said the truck operated and reacted in the same way as an automobile would. When he struck plaintiff’s car, the front end of it was two or three feet into Dale Avenue. As to the distance to the crest of the hill from the intersection, the witness had previously, by deposition, estimated it to be 200 feet. But upon trial, he testified that he had measured it and that the crest was 500 feet from the intersection.

In addition to the oral testimony, the jury had the benefit of a number of photographs introduced by both the plaintiff and the defendant. Some of these plainly showed the intersection and McCausland as it crested to the south. Others showed the car of the plaintiff and the truck of the defendant. The truck appeared to be of a closed variety about the size of a station wagon.

The case was submitted to the jury upon humanitarian negligence, and the plaintiff charged that the defendant’s driver failed to slacken the speed of the truck so that her car could pass safely in front of him after he saw, or could have seen, plaintiff come into a position of imminent peril. The pertinent evidence as it relates to the collision has been fully stated because it is charged that plaintiff failed to make a case properly submissible under the theory pursued. The evidence as to plaintiff’s injuries and damages will be stated later in considering a point which asserts that the judgment is excessive.

Appellant’s first point is that the court erred in overruling defendant’s after-trial motion for a directed verdict in accordance with its motion for a directed verdict at the close of all of the evidence. It is asserted that there was no evidence that the driver for the defendant could have slackened the speed of the truck after he saw the plaintiff in a position of imminent peril. In pressing this thesis, the defendant seems at times to have overlooked the well-established rule that the court, in passing upon a motion for a directed verdict, must view the evidence in a light most favorable to the plaintiff, and the court must give the plaintiff the benefit of any inferences that may be fairly drawn from the evidence. <®=’1S6(2) Trial, Missouri Digest.

Viewing the evidence in the manner so prescribed, we have to determine whether or not there was sufficient evidence that the driver could have slackened the speed of the truck after he saw the plaintiff in a position of imminent peril. The fact that the defendant’s truck was not in the outside lane as the plaintiff started to cross the outside lane is established by the plaintiff’s evidence. From the photographs in evidence it is apparent that the crest of the hill is more than 200 feet from the intersection. A jury may have believed the testimony of the defendant’s driver that he came over the crest of the hill before the light changed, but they were not obliged to believe his statement that he was in the outside lane at that time. Since he was not seen by the three witnesses present, there was a reasonable inference that he was traveling in the inside lane, and that he turned into the outside lane while descending the hill toward Dale Avenue.

We have the point of collision six feet north of the curb line of Dale at a time when plaintiff’s car was two or three feet eastwardly into Dale. She had traveled to that point from a stop to a speed of five miles per hour, or at an average speed of two and a half miles per hour, and was moving at an average speed of 3.66 feet per second. The defendant’s truck at some point during the crossing of the lane was seen 84 feet from the south curb of Dale Avenue, and since the plaintiff’s car was traveling 6 feet north of the south curb of Dale, defendant’s truck at that time was 90 feet away. Its speed was estimated directly after the accident at 35 miles per hour. Traveling at that speed it was going 51 feet per second, and it would have taken the truck 1.76 seconds to reach the point of collision.

In the same period of time the plaintiff’s car, traveling at an average speed .of 2.5 miles per hour, would have traveled 6.4 feet to the point of collision, or slightly more than that if we allow for the acceleration factor. Since plaintiff was going at 5 miles per hour at the time of the collision, her car at that speed would be traveling seven and one-third feet per second. The defendant’s driver stated that if she had gone ten feet beyond the point of collision, he would not have hit her. It is obvious, therefore, that if the defendant’s driver had the ability to react and slacken his speed, the collision could have been avoided.

We are therefore left with but one factor to consider, and that is the ability of the defendant’s driver to slacken the speed of the truck within the time and distance it traveled. We allow three-fourths of a second for reaction time. Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785; DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628.

At 35 miles per hour the truck would have traveled 38 feet in three-fourths of a second. This left 52 feet in which to slacken its speed. It stopped within 45 feet from a speed of 35 miles per hour. Since it could stop in that distance, it could have stopped seven feet short of the point of the collision. Since it could have stopped, the speed could have been slackened sufficiently to let the plaintiff’s car pass safely in front of the truck. Nored v. St. Louis Public Service Company, Mo.Sup., 319 S.W.2d 608.

It is always apparent in cases such as this that we cannot reduce the facts of the case to one of mathematical certainty, for we are dealing with estimates. Jones v. Fritz, Mo. App., 353 S.W.2d 393. While some of the evidence was confused and in part contradictory, it appears that there was sufficient substantial evidence to submit the case to the jury, and that the trial court did not err in so doing.

The second point raised is that the court allowed plaintiff’s counsel to inject defendant’s antecedent negligence into his argument. Portions of the argument to which objections were made were directed to the speed and position of the truck. These were of course important in determining the humanitarian issue presented. The trial court so held and did not err in overruling the objections.

The next point raised is that the court “erred in refusing to instruct the jury at defendant’s request that they could not consider the evidence of defendant’s antecedent and primary negligence under the plaintiff’s humanitarian submission.” No instruction on this was offered by the defendant. After the jury had been instructed and during the course of the argument of plaintiff’s counsel, defendant’s counsel stated: “I must interrupt again and ask the court to instruct the jury to disregard defendant’s antecedent negligence.” A “request” for an instruction constitutes the preparing and presenting to the court at the proper time a written instruction with the request that it be given. State v. Harris, Mo.Sup., 356 S.W.2d 889. This was not done, and the court properly refused the oral request made by defendant’s counsel.

The last point raised is that the judgment for $5,500 is excessive “for the injuries shown to have been directly and proximately caused by the collision.” The plaintiff testified that the collision threw her to the left door of her car with such force that the door flew open. She was bruised on the left side of the leg. Her left shoulder was hurt. She went to work the following day but could not continue her work as a waitress. She went to see a Dr. James R. Meador, and thereafter was home from work for two weeks. She went back to. work on a 3-hour workday instead of the eight-hour day she had previously worked. She did this for one week. Her wage loss-was $215, and the medical service she received was valued at $125. She said that her shoulder was still painful and she could not lift a heavy tray.

Dr. Meador testified that the injuries for which he treated her were caused by the collision. He said that she had pulled a muscle in her left shoulder, and that her condition was painful and would be permanent.

Defendant put a doctor on the stand who-had treated the plaintiff for a prior injury to the neck and trapezius muscle. He stated, however, that the last time he saw the plaintiff, in the course of his treatment of her for the prior injury, she had full shoulder movement without pain.

The whole burden of defendant’s argument is that the injuries for which the plaintiff was awarded damages arose out of a prior accident. At the defendant’s request the jury was instructed that they could not award damages for “any disablements existing prior to the collision.” The question of the cause of the injuries was for the jury and was properly submitted to them. The court which heard all of the evidence reduced the $7,500 verdict to $5,500 by remittitur. We find nothing of record here that would persuade us that the judgment of $5,500 is excessive.

For the reasons above stated, the judgment is affirmed.

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