author: MORRISON, Judge.

text:
    James Armo EILAND, Appellant, v. The STATE of Texas, Appellee.
    No. 35394.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1963.
    James Armo Eiland pro sc.
    James E. Barlow, Dist. Atty., San Antonio, James Ernest Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery by assault; the punishment, 20 years.

Katie Wood and one of her customers identified appellant as the person who entered her bar wearing a hat and a- striped shirt on the afternoon in question and who, after drinking a few beers,'went to the rest room. Upon his return, he pushed some object into Katie’s back and at the same time took the money from her cash register. He also took her purse, and when the customer, Wright, hesitated about moving toward the rest room as directed, appellant pointed a pistol at him. Appellant left the bar with Katie and her customers corralled in the rest room. As soon as they effected their escape, the police were notified and appellant was apprehended within a matter of minutes ten or twelve blocks away; he was wearing no hat and an undershirt. A hat and striped shirt containing some money were found approximately 100 yards from the bar and in the direction appellant was apprehended.

Appellant was returned to the bar, identified by the witnesses, and a pocket knife and key ring belonging to Wright were taken from his person.

Appellant did not testify or offer any evidence in his own behalf.

We find the evidence sufficient to support the conviction and shall discuss appellant’s bills of exception appearing in the record.

The indictment charged a prior conviction for burglary in the State of Washington alleged for enhancement. After proof had been made, upon motion of appellant’s counsel, the court withdrew the prior conviction from the jury’s consideration and submitted the case to the jury on the primary offense only. Appellant moved for a mistrial. We find no merit in the bill. In Spencer v. State, Tex.Cr.App., 237 S.W.2d 990, we said:

“Absent a showing of bad faith on the part of the State in offering evidence in support of such count relating to the prior conviction, this Court would not feel called upon to reverse a conviction merely because the State failed to make out its case as to said count.”

In his motion for new trial, appellant alleged that the jury arrived at a quotient verdict. Said motion is not supported by the affidavit of a juror or one in a position to know the facts and therefore is insufficient as a pleading. Pierce v. State, 160 Tex.Cr.R. 646, 274 S.W.2d 408. No statement of facts of the hearing on the motion is before us, and no error is shown.

The indictment alleged that by placing in fear appellant took $10.00 from the injured party. No error is reflected by the fact that the proof showed he took a greater sum. Mindieta v. State, 168 Tex.Cr.R. 318, 330 S.W.2d 448, and Jones v. State, Tex.Cr.App., 352 S.W.2d 270.

Finding no reversible error, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Mark Baker JOHNSTON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 35428.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1963.

      No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Emmett Col-vin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from a judgment making final a judgment nisi forfeiting an appearance bond in the sum of $500.

The record contains no brief on appellant’s behalf and no statement of facts or bills of exception, and the proceedings appear to be regular.

The judgment is affirmed.


text:
    James Edward CLOWERS, Appellant, v. The STATE of Texas, Appellee.
    No. 35295.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1963.
    Don M. Wilson, F. T. Gauen, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., H. D. Nicholson, Maurice Harrell and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $200.00.

Patrolmen Heard and Wages testified that they observed a speeding automobile and gave chase, that the automobile accelerated its speed when they turned on their red light, but finally came to a halt at a signal light some mile away. They testified that during the chase the automobile weaved across the center stripe several times. When they approached the automobile at the signal, appellant was the driver and had a strong odor of alcohol about his breath, swayed and staggered as he walked back to their patrol car. They had difficulty in placing appellant and his companion under arrest and called for aid. They both testified that, from his manner of speech, the look of his eyes and his manner of walking, they formed the opinion that he was intoxicated. In this conclusion, they were corroborated by the other officers who came to the scene in answer to their call for aid.

Appellant, his companion and the bartender at the bar where they had been shortly prior to the arrest testified that they had drunk only two, or possibly three, beers and that appellant was not intoxicated.

The jury resolved the conflict in the evidence against appellant, and we find it sufficient to support the conviction.

We shall discuss the contentions advanced by brief and in argument. The first complaint relates to the manner of drawing the names to be placed on the jury list and is brought forward only in a motion, together with the court’s ruling thereon. Assuming, without agreeing, that this might be construed as a motion to quash the panel so that the error, if any, might be preserved under Article 760e, Vernon’s Ann.C.C.P., still the same is insufficient because no exception to the action of the court in overruling the same is shown. Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291.

We also call attention to the fact that this motion was filed more than 90 days after the giving of notice of appeal, and Section 4 of Article 759a, V.A.C.C.P., as amended, grants the trial court authority to extend the time of filing to the statement of facts only.

Appellant s next complaint relates to the cross-examination of one of his reputation witnesses. This question was propounded, “Had you heard that on March 12th of 1950, that he was arrested for affray and fighting?” The objection was that such incident was too remote, and the court at once sustained the objection, stating that he was doing so on the grounds of remoteness. No motion was made to have the jury instructed not to consider the unanswered question, but a motion for mistrial was overruled. Without passing upon the question of whether the rule of remoteness applies to questions propounded to reputation witnesses, we hold that the prompt action of the court cured the error, if any, especially in the absence of a showing that the question was propounded in bad faith.

No reversible error appearing, the judgment of the trial court is affirmed.


author: McDonald, judge.

text:
    Ruben Cruz VELA, Appellant, v. The STATE of Texas, Appellee.
    No. 35324.
    Court of Criminal Appeals of Texas.
    Feb. 20, 1963.

      Charles A. Tucker, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the unlawful possession of a narcotic drug; the punishment, life imprisonment.

Acting upon the information of an informant, 'several narcotic officers of the Houston police department went to a vacant lot and found a foil wrapped package in some weeds near a utility pole. The officers’ inspection of the package revealed that it contained 101 capsules, which were later identified as heroin. .Inserting an identifying slip into the package," they returned it to its original position and secreted themselves nearby.

After waiting approximately fifteen minutes, they observed a car stop near the pole. The appellant and two others got out of the back seat and approached the package. Hermosillo, one of the appellant’s companions, picked up the package, and the group examined it. As they turned and started towards the car, the officers converged on them. Hermosillo threw the package into some weeds, and the three started to run in different directions, but were apprehended, along with the three who had remained in the car.

It was shown that Hermosillo had already plead guilty to the offense of possessing the same narcotics and had been convicted.

The appellant did not take the witness stand, and there were no obj ections made to the charge and no formal bills filed.

In his brief, appellant questions the sufficiency of the evidence to sustain the conviction, it being urged that the State failed to introduce any proof of possession, care, control or management by him of the heroin and did not show that appellant had any acquaintance, association or connection with Hermosillo.

Reliance is had upon Martinez v. State, Tex.Cr.App., 340 S.W.2d 56; Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171; and Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745.

In Martinez, supra, the holding of this Court was that there was no evidence to connect the appellant with a marijuana cigarette found 10 feet away from the car appellant was about to enter, nor was there any proof to connect appellant with the marijuana found in the car. There was nothing to show that appellant had ever been in the car.

In Pelham, supra, the case was not submitted tp the jury on the law of principals, and the majority opinion of this Court held that only the narcotics found upon his person were considered in passing upon the sufficiency of the evidence.

In Brock, supra, there was no direct evidence to connect appellant with the narcotics discovered in a public rest room, under his management, and every reasonable hypothesis other than possession by the appellant was not excluded.

In the case at bar, the trial judge charged the jury to find the appellant guilty if, from the evidence, they found beyond a reasonable doubt that he “either alone or acting with another or others, did unlawfully possess a narcotic drug, to-wit, heroin ⅜ * * »

He additionally gave a full charge on principals.

The evidence is sufficient to show that the parties arrived together in the same automobile and went directly to the cache. The package was opened and inspected by all three, and, after rewrapping it, they left as a group. When the officers made their presence known, Hermosillo threw it down, and all began running. Under these facts, the jury was justified in finding that the appellant and his companions jointly possessed the heroin. See: Perry v. State, 167 Tex.Cr.R. 122, 297 S.W.2d 187; Lowe v. State, 166 Tex.Cr.R. 116, 312 S.W.2d 382; Garcia v. State, 166 Tex.Cr.R. 482, 316 S.W.2d 734; and Davila v. State, Tex.Cr.App., 335 S.W.2d 610.

Appellant next complains of State’s Exhibit No. 1, the judgment and sentence in Cause No. 10,529, introduced to show the prior conviction alleged for enhancement in the indictment. The indictment alleged two prior convictions for non-capital felonies, to-wit: murder without malice. The judgment and sentence in No. 10,529 reflect a conviction for murder.

Appellant objected to the introduction of these records on the grounds that they were hearsay and the person certifying their authenticity was not there to identify them. After the State rested, he moved for an instructed verdict of not guilty upon the grounds of variance. The trial judge, once the error was called to his attention, dismissed the enhancement aspects of the indictment and submitted the case only on the primary offense. He also charged the jury not to consider the prior convictions for any purpose.

We cannot distinguish this case from those of Spencer v. State, Tex.Cr.App., 237 S.W.2d 990, and Johnson v. State, 163 Tex. Cr.R. 185, 289 S.W.2d 593.

In Spencer, supra, the State failed to prove the prior conviction alleged for enhancement, and a motion for mistrial was made. The court withdrew it from the jury’s consideration and charged on the primary offense alone. We quote from Spencer:

“Absent a showing of bad faith on the part of the State in offering evidence in support of such count relating to the prior conviction, this Court would not feel called upon to reverse a conviction merely because the State failed to make out its case as to said count.”

In Johnson, supra, the State failed to prove one of three counts charged in the information.

“In the absence of a showing of bad faith on the part of state’s counsel, we would not be warranted in reversing the conviction, because the jury was informed that appellant was charged with an offense in the third count in which it developed the state could not prove.”

On motion for new trial, the assistant district attorney who tried the case took the stand and explained his actions in introducing the judgment and sentence. The judgment showed that appellant had waived a jury trial and plead guilty, receiving a sentence of five years in the penitentiary. The assistant district attorney contended that this proved that it could not be a capital offense and thus could be used for enhancement in a non-capital case. He added: “ * * * it is my belief that this is a non-capital case, since the jury was waived, and I would try to introduce the judgment again, and I acted in good faith in doing so * *

We need not pass on the validity of the assistant district attorney’s contention, but need only note that a lack of good faith was not shown by the appellant, and proof of good faith was offered by the State.

No reversible error appearing, the judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Hoover SMALL, Appellant, v. The STATE of Texas, Appellee.
    No. 35157.
    Court of Criminal Appeals of Texas.
    Jan. 23, 1963.
    Rehearing Denied March 6, 1963.
    Paul Maynard, Rex Emerson (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Howell E. Stone, Asst. Dist. Attys., Plouston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 25 years.

According to this record, deceased was last seen alive at a beer drinking establishment at approximately 1:30 A.M. Sunday morning. Later, at 7:30 A.M., appellant’s eight-year old daughter, acting upon his instructions, attempted to arouse his wife from her bed in the front bedroom and, being unable to do so, was told by appellant to go for help. A small wound was visible in her upper cheek bone. The autopsy revealed that she had died at approximately 3:00 A.M. as the result of a .22 caliber bullet wound and her blood contained sufficient alcohol to indicate that she had been intoxicated.

Appellant was a total cripple, having lost both his legs, and could not descend the steps to his home, which was six or seven feet above the ground, without aid and could not have left the house in order to dispose of the murder weapon. A search of the house by the police within minutes after the outcry failed to reveal any weapon capable of inflicting the injury to deceased.

It is important to note that Dr. Jachi-mczyk, medical examiner for Harris County, who arrived upon the scene and later performed the autopsy, did not testify that death was instantaneous or even that it was impossible for deceased to have walked after she sustained the injury.

Appellant, testifying in his own behalf, denied that he had shot his wife and stated that she had put him to bed before she left for the evening and that he first knew of her condition when he sent the eight-year old girl to awaken her the next morning.

At most, the State was able to call witnesses who testified that deceased had bought a .22 caliber pistol prior to his wife’s death and others who testified that he had on one occasion, when mad, said he was going to “get even” with deceased, “blow her brains out.” Appellant denied both charges. Appellant and deceased were shown to have lived harmoniously together, and their eight-year old daughter was examined closely, and she denied any knowledge of a weapon. No one else was shown to have been in the house until the alarm was made.

In order to support a conviction upon circumstantial evidence, every other reasonable hypothesis except the guilt of accused must be excluded, and the evidence must go further than to raise a probability or suspicion.

The State did not exclude the following reasonable hypotheses:

1. That deceased was shot through a window by someone from outside.

2. That deceased was shot by someone else who entered the unlocked door of the house.

3. That deceased was not shot on the way home from the bar. In support of this hypothesis is the evidence that no one in the neighborhood was shown to have heard a shot.

In support of all of the above is the testimony of the State’s witnesses that appellant expressed disbelief when informed that his wife was dead.

In Freels v. State, 151 Tex.Cr.R. 589, 210 S.W.2d 582, appellant, the injured party and their 14-year old daughter were at home alone in a rural area when the injured party was shot. Ill feeling was shown to exist between appellant and her husband, the injured party, and a rifle from which a bullet had been fired was found after the shooting. This Court said, “That Gerhard Freels, the husband of defendant, was shot with a .22 caliber gun at the time and place in question is definitely shown, but who fired the shot which inflicted the wound on his person is, in our opinion, not shown to the exclusion of every other reasonable hypothesis except the guilt of the defendant.” The facts in Freels were far more compelling than in the case at bar, and yet this Court reversed the conviction because of their insufficiency.

A careful scrutiny of the following cases will reveal that the conviction in the case at bar should not stand: Pogue v. State, 12 Tex.App. 283; Milligan v. State, 97 Tex.Cr.R. 544, 263 S.W. 296; Owens v. State, 134 Tex.Cr.R. 384, 115 S.W.2d 920; Baugh v. State, 134 Tex.Cr.R. 215, 115 S.W.2d 411; Goode v. State, 139 Tex.Cr.R. 528, 141 S.W.2d 358; Kitchens v. State, 145 Tex.Cr.R. 272, 167 S.W.2d 762; O’Keefe v. State, 145 Tex.Cr.R. 349, 167 S.W.2d 1035; Thomas v. State, 150 Tex.Cr.R. 540, 203 S.W.2d 536; and Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856.

The judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

(dissenting).

I am unable to agree that the evidence is insufficient to sustain the jury’s verdict.

As we stated in Ray v. State, 160 Tex.Cr.R. 12, 266 S.W.2d 124, “It is the province of the jury to determine fact situations. The preservation of our jury system demands that the jury shall always remain the arbiter of disputed fact issues.

“Whether an appellate court does or does not agree with the conclusion of the jury is of no importance. It is the province and duty of this court to determine if there he evidence which, if believed, would warrant the jury’s verdict. If there is such evidence, then we have no authority to set aside the verdict.”

While Art. 848 C.C.P. makes it the duty of this court to reverse for insufficiency of the evidence, it is the duty of the court to view the evidence in its strongest light from the state’s standpoint. Mason v. State, 108 Tex.Cr.R. 452, 1 S.W.2d 283; Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573.

The jury is not bound to accept the defendant’s testimony as true. This is so even where his testimony is not contradicted. See cases listed in Texas Digest under Criminal Law 554.

Not only was the jury authorized to reject appellant’s statements and evidence as untrue — they had the right to consider his false denials of facts and circumstances which pointed to his guilt.

In addition to the facts stated in the original opinion, the state’s evidence shows the following facts which the apppellani denied:

Some weeks prior to the homicide appellant made the statement that he was going to get even with his wife, and that he was going to blow her brains out.

On October 5, 1961, appellant, in a wheel chair and accompanied by his 10 year old son, purchased from George McKenzie at West Dallas Loan Office, a pawnshop, a small German made .22 caliber revolver, and signed a “Rental agreement” which was introduced in evidence.

About three weeks before the homicide, appellant’s cousin Willie Fred Davis borrowed such a pistol from appellant’s son, Hoover Jr., the boy getting it from behind the dresser in the front room of the home. The next day Davis returned the pistol to appellant.

Some two or three weeks prior to the homicide the appellant and the deceased were at the Gillette Inn. Appellant argued with another man and his son Hoover Jr. brought him a pistol such as he had purchased and loaned, and appellant put it under the seat of his wheel chair.

When his 10 year old son left, after dark, to spend the night with his cousin, his mother was not at home and his father, the appellant, was in bed in the front room. Appellant testified:

“Q. * * * Are you telling this jury that your wife put you from the front bed into the back bed on that night ?
“A. I wasn’t in the bed at all, when she put me in the bed. I was on the floor.”

When his 8 year old daughter, at his request, went to wake up her mother and saw that she was bleeding she reported the fact to appellant and he told her “to try to wipe it off” * * * “to get a rag and wipe it off.” He testified:

“Q. Did you tell her to go get something and wipe the blood off?
“A. No, sir. I didn’t tell her anything about getting anything to wipe the blood off.”

She told appellant that her mother was not breathing. He testified:

“Q. Didn’t the little girl go in there and come back and tell you she wasn’t breathing ?
“A. No, sir. She didn’t tell me nothing about breathing. She just told me that she couldn’t wake her up.”

When “Aunt Minnie” arrived the deceased “was laying there just like she was asleep.” She saw no furniture knocked over or anything out of place. Her husband was called and then the police. The photograph introduced in evidence shows the deceased “just like she was asleep”, as the witness testified, but with a bullet hole in the left temple and a small amount of blood on the pillow at the left of her head.

Dr. Jachimczyk, medical examiner for Harris County, testified: “The internal examination revealed a bullet tract into the brain, itself. There was no exit to the wound.

“The tract entered the left side of the brain and traveled from left to right, but from front to back, at approximately IS degrees; and from toe toward head, at approximately 45 degrees, severing the left cerebral hemisphere and lodging in the right parietal cortex of the brain, the top side of the brain on the right, where I did remover a misshapen, small caliber bullet.”

The appellant is a double amputee, having lost both legs as a result of being shot by .a brother of the deceased. While he required assistance in going up and down the stairs from his porch to the ground, and used a wheel chair, the evidence shows that he was able to get around and move from one room to the other and to the porch on his hands.

Hoover Jr. repudiated his statement to the investigating officers to the contrary and testified that when he returned home the next morning his father “didn’t tell 'me nothing about no gun. * * * He never had none.”

He testified however that he went into the back bedroom where his father was and talked to him, hence he had ample opportunity to remove the murder weapon from the house.

Another circumstance is that on the morning before she was killed the deceased was looking for a house to rent. The jury was also authorized to consider the circumstance that there is not the slightest evidence to indicate that anyone other than the appellant had a motive for killing the deceased, or any grudge or malice toward her.

While the setting aside of the conviction of a legless man appeals to sympathy, the evidence supports the jury’s verdict.


author: BARROW, Justice.

text:
    Madge W. CROCKER, Appellant, v. CLARK-McDAVITT PROPERTIES, INC., Appellee.
    No. 14074.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 16, 1963.
    Rehearing Denied Feb. 20, 1963.

      Vaughan & Vaughan, San Antonio, for appellant.
    Groce & Hebdon, Charles L. Smith, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a summary judgment granted to defendant, Clark-McDavitt Properties, Inc. Plaintiff, Madge W. Crock-er, filed suit for personal injuries sustained by her in a fall at a skating rink. The trial court granted the defendant’s motion for summary judgment and plaintiff has perfected her appeal from this take-nothing judgment. The motion was granted upon plaintiff’s deposition and affidavit, an affidavit of the vice-president of defendant corporation, an affidavit of the architect who designed the building, and photographs of the area involved.

There is a question as to the status in which the defendant, Clark-McDavitt Properties, Inc., is sued. The petition alleged that it was the owner and operator of a roller skating rink. Defendant alleged, however, that it had leased the premises to Northporte-Rolercade, Inc., a Texas corporation, and that at the time of the accident plaintiff was an invitee of the lessee. Plaintiff filed a supplemental petition and alleged that Northporte-Rolercade, Inc., was a subsidiary corporation of defendant and was operating the skating rink as manager for defendant corporation. In its motion for summary judgment, defendant filed an affidavit by its vice-president to support its allegation of non-control of the premises, and attached a copy of the lease contract to the motion for summary judgment. This contract places sole control of the operation in the lessee, Northporte-Roler-cade, Inc. The plaintiff did not file a counter-affidavit or other evidence, or justify her inability to do so. She, therefore, did not raise a genuine issue of fact on this point. Allen v. Western Alliance Insurance Co., Tex., 349 S.W.2d 590; McDonald, Texas Civil Practice, Vol. 4, § 17.26.3.

The status of defendant is of little importance in view of the theory of liability upon which this suit was brought by plaintiff. She does not allege that the fall was caused by a foreign substance on the floor, defective construction, or improper supervision of the premises. She predicates liability upon improper design of the premises for the purpose of operating a skating rink. The skating area was on a wooden floor raised about two inches above the concrete floor, enclosed with a solid wall about three feet high. There are two openings in the wall through which skaters enter and leave the skating area. At such openings the skaters go up or down an incline about five inches long, which is covered with a metal strip. The openings are located so that the walls may be held when a skater enters or leaves the skating area. All of these conditions were admittedly known by plaintiff prior to her fall. At the time of the fall she was leaving the skating area through one of the openings; she was holding to the wall with her right hand, but slipped and fell on the metal strip. Plaintiff alleged that the building was not designed as a skating rink, but was converted by adding the wooden floor and that this created a hazard. Further, that the design of the premises required skaters to go on and off the area.

The owner of leased premises is liable to the public or to third persons for injuries resulting from a defective structure on the premises, when the defect existed at the time the lease was made. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W. 2d 609; Perez v. Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620. Here the premises were leased for the specific purpose of operating a skating rink.

The uncontroverted affidavit shows that the premises were constructed according to plans and specifications prepared by a competent and qualified architect, for the specific purpose of a skating rink. The wooden floor was raised to keep dirt off the skating area. The openings in the wall were designed so as to provide a handrail for skaters entering and leaving the skating area. The five-inch metal incline was designed to eliminate injury by a fall on the sharp corner of the skating floor. The fault alleged was in the plan or design of construction. There was no allegation of a nuisance per se. Further, the design complained of was known to plaintiff prior to the injury.

This case comes within the rule set forth in Hamblen v. Mohr, Tex.Civ. App., 171 S.W.2d 168, writ ref., want of merit. It was there held that, in the absence of a nuisance per se, the duty of the owner of a building in providing for its safe construction is satisfied by the use of ordinary care to engage a competent architect and builder. See, also, Renfro Drug Co. v. Lewis, supra; Acme Laundry Co. v. Ford, Tex.Civ.App., 284 S.W.2d 745, writ ref., n. r. e.; San Antonio Hermann Sons Home Ass’n. v. Harvey, Tex.Civ.App., 256 S.W.2d 906, writ ref., n. r. e.

The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    EAGLE STAR INSURANCE COMPANY, Ltd., Appellant, v. Mrs. A. L. SMITH, Appellee.
    No. 7218.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1963.
    Rehearing Denied Feb. 25, 1963.

      Key, Carr, Carr & Clark, Lubbock, for appellant.
    Calloway Huffaker and Harold Green, Tahoka, for appellee.
   DENTON, Chief Justice.

Mrs. A. L. Smith, appellee, brought this suit to recover on a fire insurance policy issued by the Eagle Star Insurance Company. Both parties filed motions for summary judgment. After considering the pleadings, affidavits and depositions, the trial court granted Mrs. Smith’s motion for summary judgment and the insurance company perfected this appeal. The primary question to be determined is whether or not Mrs. Smith had an insurable interest in the farm house which admittedly was totally destroyed by fire on February 9, 1960.

Mrs. Smith and her deceased husband acquired section 455 in Yoakum County, Texas, the latter part of 1940 or early 1941. Prior to Mr. Smith’s death in 1951, the Smiths sold the Nj/£ of section 455. Mrs. Smith has continued to own the Sj/2 of section 455 up to the time of th'e trial. When the Smiths moved onto the land in 1941, they occupied the house in question until the family moved to Oklahoma in 1952. In 1941 it became known to Mrs. Smith and her son that there was a disputed strip of land between section 455 and the Texas-New Mexico state line. This strip of land was described as being approximately three miles long, twenty-six yards wide at the north end and one hundred yards wide at the south end. The amount of acreage in this tract is not indicated. The insured and her son testified in their depositions that this excess land was owned by the State of Texas and that they knew of this claim in 1941. This strip of land has been designated as section 456, and it is undisputed the house in controversy was located some seventy-five feet over on section 456. The house has never been located on what is designated section 455. The of section 455 has been rented on a cash rent basis since 1952. The tenant, who farms the Smith land, lived in the house prior to its being destroyed by fire and he also farms section 456 for which he pays rent to the State of Texas.

It is fundamental that an insurable interest on the part of the person taking out the policy is essential to the validity and enforcibility of the insurance policy. A policy issued to a person without an insurable interest in the subject matter of the policy is unenforcible on grounds of public policy. Hartford Fire Insurance Company v. Evans (Tex.Civ.App.), 255 S.W. 487. See also 44 C.J.S., Insurance, § 175, page 869 and 32 Tex.Jur.2d, Insurance, Section 123, page 221. The generally accepted rule is that an insurable interest exists when the assured derives pecuniary benefit or advantage by the preservation or continued existence of the property or would sustain pecuniary loss from its destruction. Rolater v. Rolater, (Tex.Civ.App.), 198 S.W. 391. Canfield v. Newman, (Tex.Civ.App.), 265 S.W. 1052. See Appleman’s Insurance Law and Practice, Vol. 4, Section 2123.

As we understand it, appellee takes the. position she had an equitable interest in the house and that such interest constituted an insurable interest or, in the alternative, the insurance company’s agent’s knowledge of the facts at the time the policy was issued constituted a waiver. In our opinion the uncontradicted evidence established the lack of an insurable interest'on the part of the insured in the subject matter of the policy. By deposition both Mrs. Smith and her son acknowledged the ownership of section 456 upon which the house was located was in the State of Texas; both admitted that Mrs. Smith did not own the house and could not sell it; they testified she received no income from the house, but instead received an annual cash rent for the S]4 of section 455 only. Under these undisputed facts, we can only conclude Mrs. Smith had no insurable interest in the house which was admittedly totally destroyed. She derived no pecuniary benefit or advantage by the preservation or continued existence of the house; nor has she sustained a pecuniary loss from its destruction.

By brief appellee contends the insurance company is estopped to deny an insurable interest in the appellee. Although it is undoubtedly true some provisions of insurance policies, including a sole and unconditional ownership clause, may be waived by insurance companies and their authorized agents, the decisions so holding are predicated on the insured having some claim of ownership and thus an insurable interest. No case has been cited which holds that the lack of insurable interest is an element which may be waived. In American Insurance Company v. Edwards, (Tex.Civ.App.), 78 S.W.2d 1020, (Error Dismissed), the court used the following language:

“We do not think there is merit in ap-pellee’s second contention that appellant is estopped to contest appellee’s insurable interest. If in fact appellee had no insurable interest in the property, there could be no 'estoppel' in a controversy between him and appellant.”

This same rule has been well stated in the following language in Appleman’s work on Insurance Law, Vol. 4, section 2122, page 19:

“It is usually considered that the requirement of insurable interest is absolute and is not excused by the fact that the claimant may have acted im good faith or that the insurer had full knowledge of all the circumstances. Several .leading courts have gone on record to the effect that the doctrines of waiver and estoppel have no application to such situations and cannot Operate to excuse the lack of insurable interest. Thus, an honest but erroneous impression of both the insurer and the insured that the insured had such an interest in a building would be inadequate to vest such an interest in him.”

Cases are therein cited which support this rule of law.-

The judgment of the trial court is reversed and it is our duty to render such judgment as should have been rendered below. Rule 434, Texas Rules of Civil Procedure. It is therefore ordered that appellant’s motion for summary judgment be granted and that appellee take nothing against appellant.

Reversed and rendered.


author: COLEMAN, Justice.

text:
    HOUSTON LIGHTING & POWER COMPANY, Appellant, v. Larry C. REED et al., Appellees.
    No. 14047.
    Court of Civil Appeals of Texas. Houston.
    Jan. 31, 1963.
    Rehearing Denied Feb. 21, 1963.

      McLeod, Mills, Shirley & Alexander, V. W. McLeod, Galveston, for appellant.
    Burch Downman, Houston, Baker, Callahan & Brady, Galveston, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment, entered by the trial court pursuant to the verdict of a jury, for the damage sustained by a small boy when he ran into the lid of a tool chest extending out from the side of a truck belonging to appellant.

The principal ground on which this appeal is based is that the trial court erred as a matter of law in refusing to hold that there was no negligence on the part of appellant that was a proximate cause of the injury sustained by appellee.

This suit was brought by Addie Mae Reed as next friend for her son, Larry C. Reed. At the time he received the injury for which he seeks compensation in this suit, Larry was about four years of age. He lived in a house which fronted on an alley in the City of Galveston. Just before the incident in question he was playing in the alley with some other children. One of defendant’s trucks was driven into the alley by Oran Hopkins, one of defendant’s employees. Mr. Hopkins knew that residences fronted on this alley and that children played in the alley. The driver parked the truck on his lefthand side of the alley about two and one-half feet from a garage. This truck had a metal body built on it which extended over the rear wheels to a point about even with the front fenders. This portion of the body was used for storing tools and materials. A door opened on the side of the body to permit entry to the storage compartment. When open the door formed a shelf supported by hinges and chains at both ends. The bottom of the door, as reflected by a picture introduced into evidence as Defendant’s Exhibit No. 3, is 37j4 inches to the ground. The door appears from the exhibit to be ¾ of an inch thick. The testimony reveals that, when open, the door extends out from the truck a distance of feet.

After parking the truck the driver and Mr. Charles Fowler, a lineman employed by the Company, opened the tool compartment and got certain tools and equipment. They then went about their duties leaving the door to the tool compartment open and the truck unattended.

Addie Mae Reed walked a short distance past the truck and stopped to talk to a friend. While she was so engaged, Larry ran up the alley toward his mother while looking back at his playmates. He ran between the truck and the garage, although the space was narrow and there was ample room to pass on the other side of the truck. While attempting to run through this narrow passageway, he struck the door to the tool compartment with his head, cutting his left eye. As a result of this injury his left eye was surgically removed.

The jury found that appellant was negligent in failing to close the lid to the tool compartment on the truck and that the negligence was a proximate cause of the injuries sustained by Larry Reed. The jury also found that the failure of appellant to attach a warning flag or other warning device on or near the lid of the tool compartment was negligence and a proximate cause of the injuries sustained by Larry Reed. The jury failed to find any contributory negligence.

It is appellant’s contention that as a matter of law appellant could not reasonably have foreseen that a child would run into the lid of the tool compartment and injure himself as a result of their failure to close the lid or to place a warning device near it. Appellant is not contending that it owed no duty of care to one lawfully using the alley. Appellant further contends that it could not have reasonably foreseen that the injury to Larry Reed would have occurred as a consequence of the acts of omission found by the jury, and that, therefore, as a matter of law appellant’s conduct could not have been the proximate cause of the injury suffered by Larry Reed.

The present state of the law in Texas on these questions is succinctly stated in Genell, Inc. v. Flynn, Tex.Sup.1962, 358 S.W.2d 543, as follows:

“Although injury may result from h person’s act or omission, yet, if the actor could not have reasonably foreseen the resultant injury, or injuries, similar in character, he is not to be held responsible therefor. Liability is grounded in the public policy behind the law of negligence which dictates that every person is responsible for injuries which are the reasonably foreseeable consequence of his acts or omissions. A person is not legally responsible for consequences which cannot be foreseen. Liability for negligence rests primarily on reason to anticipate injury and failure to perform the duty arising on account of such anticipation. See Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 163 (1896); Uvalde Construction Co. v. Hill, 142 Tex. 19, 175 S.W.2d 247 (1943). It is recognized in this state that anticipation of consequences is a necessary element in determining whether the injury complained of is proximately caused by such act or omission. Actual anticipation, of course, is not in any sense the test, but what one should under the circumstances reasonably anticipate as consequences of his conduct. See City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 670, (1923) opinion approved by the Supreme Court, 27 A.L.R. 927; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416 (1953); Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 (1960).”

Appellant parked its truck 2½ feet from a garage in a public alley where it knew children frequently played. After the lid of the tool box was opened, only one foot of passageway remained unobstructed. The gray metal lid 18 inches wide by ¾ of an inch thick would be difficult to see by one whose eyes were approximately on the same level. In determining what constitutes ordinary care all of the attending circumstances must be considered. Since this was a public alleyway in which small children were known to play, appellant knew, or should have known, that one of them would probably run between the truck and the garage. The fact that more space for passing existed on the side of the truck near the center of the alley is not important in determining the existence of negligence vel non where children at play are concerned. The habits of children at play are matters of common knowledge which appellant will be deemed to know. Nesmith v. Magnolia Petroleum Co., Tex.Civ.App., 82 S.W.2d 721; Pacific Greyhound Lines v. Vermillion, Tex.Civ.App., 87 S.W.2d 312, dism.; Texas General Utilities Company v. Nixon, Tex.Civ.App., 81 S.W.2d 250.

Appellant should have anticipated that if a child attempted to run between the truck and the garage, when 60% of the available space was blocked by a metal lid with sharp corners, and when it would be difficult for a small child to see the lid because of its size and color, such a child would probably receive injuries by reason of a collision with the lid. The answers returned by the jury to the issues submitting negligence and proximate cause are supported by evidence of probative force and the trial judge did not err in rendering judgment based on such answers. Collins v. Pecos & N. T. Ry. Co., 110 Tex. 557, 212 S.W. 477; Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416.

Appellant also complains of the failure of the trial court to submit certain requested issues by which it sought to establish that Addie Mae Reed failed to keep proper custody and control over Larry Reed and that such failure was the sole proximate cause of his injuries. This question was recently considered by the Court of Civil Appeals at San Antonio in the case of Kuemmel v. Vradenburg, 239 S.W.2d 869, writ ref., n. r. e. In that case the trial court sustained exceptions to that part of the defendant’s answer by which this defense was pleaded. This action of the trial court was held not to be error. Since there was a dissent on this point in the Court of Civil Appeals, we assume, without having examined the application for writ of error, that this point was before the Supreme Court and that their action in refusing a writ of error, n. r. e., necessarily implies approval of the decision of the Court of Civil Appeals on this point. In any event, we agree with the reasoning of the Kuemmel case and hold that the failure of the trial court to submit these issues was not error.

1 Appellant submits that the trial court erred by instructing the jury in connection with the damage issue, to consider “such humiliation and embarrassment” which Larry Reed will suffer in future because it was not a proper item of damages and permits double recovery.

The objection made to the court’s charge was that “ ‘humiliation and embarrassment’ is not a proper item to be submitted to the jury and is not a proper item of damages, and is not the type of element of damages that a jury is supposed to consider.”

That portion of the point of error to the effect that humiliation and ambarrassment is not a proper item of damage must be considered in connection with the objection made in the trial court since the point must be construed as complaining of action of the trial court in overruling appellant’s objection to the charge. Hicks v. Fredericks, Tex.Civ.App., 286 S.W.2d 315. Rule 274, Texas Rules of Civil Procedure, provides that “A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.” “The purpose of that rule is to give the trial court an opportunity to correct any errors in the charge so that the case may be properly submitted.” Missouri Pacific Railroad Company v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283.

It is, therefore, unnecessary to search the record for the purpose of determining whether or not the specific elements made the subject of the point of error are raised by the evidence or may be presumed from the nature of the injury proved. The only questions raised by the point are whether embarrassment and humiliation may properly be considered by the jury as elements of damage for personal injuries resulting in disfigurement, i. e., the loss of an eye, and whether this method of submission permits double recovery.

It is well settled that mental suffering is an item of damage in a proper case. Texas & N. O. R. Co. v. Cammack, Tex.Civ.App., 280 S.W. 864, err. ref.; Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706, err. ref., w. o. m.

Disfigurement is also a proper element of damage aside from any effect it might have on earning capacity. Southwestern Bell Telephone Co. v. Ferris, Tex.Civ.App., 89 S.W.2d 229, writ dism.; Houston Transit Company v. Felder, 146 Tex. 428, 208 S.W.2d 880. This may be justified on the theory that suffering is induced in the mind of the injured party by contemplation of his changed physical condition. Missouri, K. & T. Ry. Co. v. Miller, 25 Tex.Civ.App. 460, 61 S.W. 978, writ den.; Chicago, R. I. & G. Ry. Co. v. Smith, Tex.Civ.App., 197 S.W. 614, aff’d Tex.Com.App., 222 S.W. 1099; Texas Electric Ry. v. Whitmore, Tex.Civ.App., 222 S.W. 644. Humiliation is an item of damage in a proper case. Cunningham v. Pennsylvania R. Co., D.C., 55 F.Supp. 1012; Lebeck v. William A. Jarvis, Inc., D.C., 145 F.Supp. 706; Texas Bus Lines v. Anderson, Tex.Civ.App., 233 S.W.2d 961, writ ref., n. r. e.; Leach v. Leach, 11 Tex.Civ.App. 699, 33 S.W. 703, writ ref.; City of Dallas v. Maxwell, Tex.Civ.App., 231 S.W. 429, rev. on other grounds Tex.Com.App., 248 S.W. 667, 27 A.L.R. 927.

Evidence of ambarrassment has been held admissible on the question of damage. City of Amarillo v. Rust, Tex.Civ.App., 64 S.W.2d 821. In a proper case recovery has been allowed for fright. San Antonio & A. P. Ry. Co. v. Corley, 87 Tex. 432, 29 S.W. 231. Damages are allowed for disfigurement, humiliation, embarrassment and fright because they cause mental suffering. Texas Power & Light Co. v. Martin, Tex.Civ.App., 226 S.W. 451, writ dism.; Southwestern Bell Telephone Company v. Ferris, Tex.Civ.App., 89 S.W.2d 229, writ dism.; Texas Electric Ry. v. Whitmore, supra; Galveston, H. & S. A. Ry. Co. v. Clark, 21 Tex.Civ.App. 167, 51 S.W. 276, writ ref.; Gulf, C. & S. F. Ry. Co. v. Sauter, 46 Tex.Civ.App. 309, 103 S.W. 201, writ ref.; Laney v. Rush, Tex.Civ.App., 152 S.W.2d 491.

In City of Dallas v. Maxwell, supra, the court said: “The shade of difference between the terms ‘mental suffering,’ ‘humiliation,’ and ‘mortification’ is so dim that lexicographers have not been able to distinguish the one from the other. A physical deformity which is patent to observers may produce these things.”

Prosser, in his Handbook of the Law of Torts, Ch. 5, § 34, p. 213, says:

“Where the defendant’s negligence inflicts an immediate physical injury, such as a broken leg, none of the foregoing objections has prevented the courts from allowing compensation for purely mental elements of damage accompanying it, such as fright at the time of the injury, apprehension as to its effects, nervousness, or humiliation at disfigurement. With a cause of action established by the physical harm, ‘parasitic’ damages are awarded, and it is considered that there is sufficient assurance that the mental injury is not feigned.”

While mental suffering is a more inclusive term and properly could have been submitted in this case, the submission of certain elements of mental anguish, considering the objection urged, rather than the more inclusive term, if error, would be error favorable to appellant and will not result in a reversal of the case. Rule 434, Texas Rules of Civil Procedure; Houston Transit Co. v. Felder, supra.

Appellant argues that the meaning of the words “humiliation” and “embarrassment” is substantially the same, and that since the court submitted “humiliation and embarrassment” rather than “humiliation or embarrassment”, the “jury may well have thought that these were two separate items of recovery and thereby may well have allowed double recovery * * * ”

In Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 883, the Supreme Court of Texas said:

“There was no such overlapping or blending of separate elements of damages in this charge as would reasonably be calculated to confuse the jury or lead it to assess damages twice for the same loss. The court’s charge and the jury’s consideration of it must be appraised in the light of ordinary reason and everyday experience. Distinctions which are too fine are apt to lead to needless perplexities and purely legalistic results. This charge does not, when tested by reason and the precedents, subject the company to any liability not compensable at law. We conclude that none of the grounds upon which the company criticizes the charge is reasonably calculated to have injuriously affected its substantial rights. Rule 434, Texas Rules of Civil Procedure; American Nat. Bank of Austin v. Sheppard, Tex.Civ.App., 175 S.W.2d 626, error refused want of merit.”

The burden rests on appellant to show that the error of which complaint is made probably resulted in the assessment of double recovery. Southwestern Bell Telephone Co. v. Ferris, Tex.Civ.App., 89 S.W. 2d 229, writ dism.; Houston Transit v. Felder, supra. This point does not present reversible error.

Appellant contends that prejudicial error was committed by appellee’s attorney in his opening argument to the jury, by contrasting the financial status of the plaintiff and the defendant. The attorney spoke of Houston Lighting & Power Company as a large concern and later, without referring to appellant, spoke of the poor colored boy and of “this poor woman’s son,” and again mentioned “this boy’s age, intelligence and station in life.” That Houston Lighting & Power Company is a large concern probably is known to all residents of Galveston County, Texas. Evidence introduced by appellant over the objection of appellee made it plain that Larry was poor and the fact that he was colored was apparent. The remarks complained of, considered in their context, were improper, but when the record as a whole is reviewed, probable injury is not disclosed. Walker v. Texas Emp. Ins. Ass’n., 155 Tex. 617, 291 S.W.2d 298.

One of appellee’s attorneys, in the opening argument, said: “ * * * He went through an operation and stayed in the hospital for about a week, and also that he is going to have to go around the rest of his life with one eye. This doctor—Mr. McLeod—he can wear a glass eye, he said, ‘He could perfectly wear that.’ But I ask you, Ladies and Gentlemen, is that what you would want to wear ?”

The attorney for appellant objected and, out of the hearing of the jury, moved for a mistrial on the ground that the argument was so prejudicial that it could not be cured by instruction. The court denied the motion for mistrial and appellant did not request that any instruction be given the jury with regard to the argument. This argument has been held improper in many cases. Brooks v. Enriquez, Tex.Civ.App., 172 S.W.2d 794, err. ref. In the Brooks case the improper argument was held to constitute reversible error. It was particularly pointed out that in the cases where such arguments were held to warrant reversal an objection was made to the argument and overruled by the trial court. In Texas Employers Ins. Ass’n v. Thames, Tex. Civ.App., 252 S.W.2d 228, ref., n. r. e., the court held that such an argument will require reversal unless the error is removed by the action of the trial court in sustaining an objection and instructing the jurors not to consider the argument. The same rule is found in Tex. Emp. Ins. Ass’n v. Goforth, Tex.Civ.App., 307 S.W.2d 610, err. ref., n. r. e. Since appellant told the trial judge that the argument was such that it could not be cured by instruction and the trial court failed to act on appellee’s suggestion that such instruction be given the jury without objection by appellant, we consider the rule announced in the cases cited applicable here. The trial court did not err in overruling appellant’s motion for a mistrial. Red Top Cab Co. v. Capps, Tex. Civ.App., 270 S.W.2d 273, ref., n. r. e.; Texas & P. Ry. Co. v. Hagenloh, Tex.Civ.App., 241 S. W.2d 669, rev. on other grounds, 151 Tex. 191, 247 S.W.2d 236.

Appellant’s final point is that the court erred in entering judgment since the verdict was for an excessive amount. The jury awarded appellee the sum of $15,000.00 as damage for the pain and suffering endured in the past, diminished earning capacity after age 21 and humiliation and embarrassment. While the evidence available to demonstrate loss of earning capacity of a small child or the effect and extent of pain or humiliation on such a child, is necessarily limited, we are unable to say that the sum awarded here is so large in relation to the injury sustained as to be clearly excessive. Phillips Petroleum Co. v. Burkett, Tex.Civ. App., 337 S.W.2d 856, ref., n. r. e.; Continental Bus System, Inc. v. Toombs, Tex.Civ.App., 325 S.W.2d 153, err. ref., n. r. e.

The judgment of the trial court is affirmed.


author: DOERNER, Commissioner.

text:
    Omer B. DUFFENDACK, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 31134.
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.
    Donald W. Bird, Gerald D. Morris, St. Louis, for defendant-appellant.
    Hullverson, Richardson & Hullverson, Everett Hullverson, Corinne Richardson, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff’s action, in two counts, is for personal injuries and property damages claimed to have resulted from a collision between plaintiff’s automobile and defendant’s motorbus. Trial before a jury culminated in a verdict and judgment in favor of plaintiff for $5,000 for personal injuries and for $965.95 for damages to plaintiff’s car. Its after-trial motions being unavailing, defendant appealed to this court.

The collision in question occurred on September 19, 1960, about 1:45 P.M., in Kirk-wood, Missouri, at the intersection of Adams Street, an east-west street, and Kirkwood Road, a north-south thoroughfare. The weather was clear and the streets dry. Traffic at the intersection was controlled by electric signals, so set that southbound and eastbound traffic never had a red or green light at the same time.

Plaintiff, a retired Methodist minister, operating his 1959 four-door Cadillac sedan southwardly on Kirkwood Road, in obedience to a red light, came to a stop in the curb lane with his bumper approximately even with the north curb of Adams. While plaintiff was stopped he noticed the bus in question on Adams, headed east, and stopped about 12 or 14 feet west of the west curb of Kirkwood Road. After he had been stopped some 5 to 10 seconds the light facing him turned green, and plaintiff started forward. Plaintiff was some distance into the intersection when he saw the bus start eastwardly, but thought it was merely rolling up to the curb line to stop there. When he was practically at the center line of Adams he realized that the bus wasn’t going to stop, momentarily touched his brake, and then stepped on the accelerator and swerved in an effort to get out of the way of the bus. The front of plaintiff’s car was “practically to the south side of Adams Street” when the bus struck it a rather violent blow, right square in the -center of the right doors.

Defendant raises four points .on .appeal, the first of which is that plaintiff was guilty of contributory negligence as a matter of law. A plat introduced by defendant, and accepted as accurate by plaintiff, showed Adams Street to be 43 feet 4 inches wide. Starting with plaintiff’s testimony on cross-examination that “After 1 had gotten out practically to the middle * * * » 0f Adams when he realized that the bus was not going to stop for the red light, defendant, using various estimates of plaintiff and its own bus driver, argues that plaintiff could have stopped approximately 2 feet short of the path of the bus. Thus defendant contends that the bus was stopped “About two feet” from the south curb of Adams (one of defendant’s bus driver’s estimates); that the bus was 8 feet wide (the bus driver’s estimate) ; that the left side of the bus was thus 11 feet 8 inches from the center of Adams (predicated on the bus driver’s estimates); that plaintiff testified he was “practically” to the middle of Adams, and therefore plaintiff meant he had not yet reached the center, so that he had 12 feet in which to stop; that plaintiff was then traveling 10 miles an hour (one of plaintiff’s estimates); and that at that speed he could stop in 10 feet, including reaction time (another of plaintiff’s estimates). Of course, plaintiff is not conclusively bound by his estimates of speed, position, and stopping distance. McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739; Appelhans v. Goldman, Mo., 349 S.W.2d 204; Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, much less by the testimony of the defendant’s witness’ estimates of distances, Hall v. Clark, Mo., 298 S.W.2d 344. Furthermore, defendant’s argument assumes a fact not in evidence, that the bus traveled directly forward after it started up; and that assumption, in turn, appears to be in conflict with the driver’s testimony that plaintiff’s car was “About the center * * * ” of Adams when he first saw it and that his bus was then just four or five feet from it. A plaintiff’s contributory negligence is ordinarily a jury question unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, that the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury. Dye v. Geier, Mo., 345 S.W.2d 83; Kickham v. Carter, Mo., 314 S.W.2d 902. Whether plaintiff was guilty of negligence in failing to attempt to stop was, under all the evidence, a jury question.

Defendant next complains that plaintiff’s instruction No. 11 submitted an erroneous measure of damages to plaintiff’s car, in that it permitted the jury to assess this item of damages on the basis of the cost of repairs. Having failed to raise such a specific objection at the trial before submission of the case to the jury, or in its motion for a new trial, defendant is scarcely in a position to do so here. Civil Rules 70.02, 79.03 and. 83.13, V.A.M.R. Hartz v. Heimos, Mo., 352 S.W.2d 596; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710. Furthermore, plaintiff testified he had expended the sum of $965.95 for repairs. Defendant did not object, and cross-examined plaintiff as to the damages to the automobile. It was in evidence that the car was a 1959 Cadillac and in good condition before the collision in question. Defendant’s point was decided adversely to it by the Supreme Court in Oberhaus v. Eichwald, Mo., 303 S.W.2d 29, and by this court in General Exchange Ins. Corp. v. Young, Mo.App., 206 S.W.2d 683 aff. 357 Mo. 1099, 212 S.W.2d 396.

Defendant next contends that it was denied a fair trial by an impartial jury because one of the jurors on voir dire examination intentionally concealed the fact that he had previously collected money for an injury he had received in the course of his employment. At the start of his interrogation of the panel trial counsel for defendant (who is not counsel for defendant on this appeal) stated:

“ * * * I would like to ask to begin with one question individually of each of you, which has been touched upon by Mr. Hullverson, which I would like to go into a little bit more fully. That question is, and I will explain it to you before I ask it of you individually, have you or any member of your family ever had a claim, a workmen’s compensation claim, or a lawsuit — either of the three — either for personal injury or property damage, against any person, corporation or individual? By claim, I mean any incident where you have asked for money because of some damage or injury to you or your property or you have been paid money for some damage to you or your property, or some injury. Í would like to start with Mrs. Herrmann in the back. You told about the prior claim against Public Service Company?”

Counsel then asked Mrs. Herrmann whether she had been involved in any other “claim or lawsuit or workmen’s compensation case * * and received a negative answer. Juror No. 2 was asked whether he had ever had a “claim or lawsuit against any company * * Counsel then reached Juror No. 3, and inquired: “Mr. Johnston, I would like to ask you the same question, sir? and Johnston responded: “No claims.” Counsel: “Q. No claims either you or your family or lawsuit?” Johnston: “No.” Four jurors interrogated after Johnston stated that they had had workmen’s compensation claims, but were not then asked any details thereof. No juror was asked individually whether he had ever received money or compensation under the Workmen’s Compensation Act without filing a claim, nor was the panel asked that question collectively.

At the hearing on defendant’s motion for a new trial Johnston was asked by defendant’s trial counsel whether he had had “a prior workmen’s compensation claim * * * ” and replied: “By claim, I don’t know exactly what you mean there.” When asked whether he had received some money for an injury sustained while at work he recalled that in 1952 he was injured while working, was off five weeks, and after the first two weeks had been paid $30 a week for three weeks but “ * * * I had to file no claim, whatsoever, for it, * * He stated that he endeavored to truthfully answer the questions asked him on voir dire; that at the time of interrogation he had completely forgotten about the payment he had received (9½ years prior to the trial); that it did not occur to him during the trial, nor during the jury’s deliberations; and that if it had, it would have made no difference in his verdict. Mr. George Hagemann, St. Louis Claims Manager for the employer’s compensation insurer, confirmed that Johnston had been paid $90 because of an accident which occurred on March 28, 1952. He also confirmed Johnston’s testimony that Johnston had not made or filed any claim, and stated that, as was usually done, “ * * * the 'employer takes care of everything, seeing the man paid.”

In a matter of this kind the decisive question is whether the venireman was guilty of giving false answers or of an intentional concealment or failure to disclose information, and the determination of that question is primarily left to the sound discretion of the trial court, reviewable only for abuse. Begley v. Adaber Realty & Investment Co., Mo., 358 S.W.2d 785; Hornberger v. St. Louis Public Service Co., Mo., 353 S.W.2d 635; Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795; Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670. A misconception by a venireman of the word “claim” as used by counsel, or a momentary forgetfulness of an event which had transpired, as here, 9½ years before the interrogation, justified the trial court in believing that there was no intentional concealment, misrepresentation, deception, and prejudice. Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297. We find no abuse of its discretion. Begley v. Adaber Realty & Investment Co., supra; Hornberger v. St. Louis Public Service Co., supra; Hampy v. Midwest Hanger Co., Mo.App., 355 S.W.2d 415.

In its final point defendant criticizes plaintiff’s instruction No. 6, which informed the jury that the burden of proving the plaintiff’s contributory negligence was upon the defendant. No objection is raised to the instruction as an abstract proposition of law. The specific and sole complaint made is that it deprived defendant of the benefit of evidence offered by plaintiff, tending to show contributory negligence on his part, by fáiling to inform the jury that they could and should consider such evidence in determining the question. Precisely the same objection was raised by the defendant to a similar instruction in Murray v. Missouri Pacific Ry. Co., 101 Mo. 236, 240, 13 S.W. 817, 818, where in rejecting the criticism the court said: “ * * * There is nothing, however, in the instruction which deprives the defendant of the benefit of this evidence. It does not say that the defendant must show contributory negligence by the evidence of witness, introduced by itself. The jury are left to determine the question from all the evidence, no matter by whom offered.” To the same effect see Tinkle v. St. Louis & San Francisco R. R. Co., 212 Mo. 445, 110 S.W. 1086; Lanasa v. Downey, Mo. App., 201 S.W.2d 179; Davis v. Missouri Elec. Pwr. Co., Mo.App., 88 S.W.2d 217; Beane v. City of St. Joseph, 211 Mo.App. 200, 240 S.W. 840; Maguire v. St. Louis Transit Co., 103 Mo.App. 459, 78 S.W. 838. Furthermore, the jury could not have been misled because defendant’s instruction No. 4 in submitting the issue of plaintiff’s contributory negligence hypothesized and was predicated on plaintiff’s testimony.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment'is affirmed.

WOLFE, Acting P. . J., JACK P. PRITCHARD and J. MORGAN DONEL- . SON, Special Judges,, concur.


author: GEORGE P. ADAMS, Special Judge.

text:
    Marie HEGINBOTHAM, (Plaintiff) Appellant, v. Arthur GANN, (Defendant) Respondent.
    No. 30971.
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.
    Dorothy Scott Alloway, St. Louis, for appellant.

      Wilbur C. Schwartz, St. Louis, William L. Mason, Jr., St. Louis, of counsel, for respondent.
   GEORGE P. ADAMS, Special Judge.

Plaintiff-appellant prosecutes this appeal from a judgment in favor of defendant-respondent, entered in the Circuit Court of the City of St. Louis, pursuant to the verdict of a jury.

About 8:30 A.M. on January 22, 1958, while stopped at a stop sign on Midland Avenue at the south side of Olive Street Road in University City, plaintiff’s car was struck from the rear by defendant’s northbound car.

Earlier, as she was taking her daughter to school, plaintiff had experienced some icy pavement on Hanley Road and was using Midland Avenue as a “better” route home. She drove north on Midland and stopped at Olive Street Road to wait for traffic to pass so she could proceed north across Olive Street Road.

Her version of the accident is contained in this brief portion of her testimony:

“All I know is that I had been sitting there, I’m certain at least three minutes or more, waiting for a break in traffic so I could get through and there was a car turning off Midland going east on Olive I was watching, because I felt after that car passed, I might be able to get through, and next thing I knew I was holding on for dear life; my car just took off, and I knew I was going to hit the car turning in front of me. I don’t know where the car came from — I didn’t see it. All I know I just shot out and my ankles and wrist were swollen from holding the brake and steering because it came with such force, and I just didn’t know where it came from. I didn’t see the car.”

On his way to work that morning, defendant, too, had experienced ice on several streets. As he drove north on Midland and when he was 45 to 50 feet back of plaintiff’s car and driving 15 to 20 miles per hour, he noticed her car stopped at an automatic signal at Olive Street Road. He put his foot on his brake to stop his car, the car slowed down but when he was 15 feet back of plaintiff he “hit ice.” The car started “picking up.” He tried to swing his car into a filling station and as he “swung” the driver’s side of his car— at the fender and door — hit the right rear of plaintiff’s car and moved it forward.

Plaintiff claimed to have been injured but her injuries are not an issue on this appeal.

In her petition plaintiff pleaded (1) rear end collision negligence, (2) excessive speed, (3) failure to sound signal or warning, (4) failure to have his car under control, (5) failure to discover plaintiff, (6) humanitarian negligence based on defendant’s alleged failure to stop, to slacken his speed, to swerve, or to give a warning, and (7) that defendant negligently turned and swerved his car so as to cause collision.

Defendant’s answer consisted of certain admissions (not important here) and a general denial.

Plaintiff submitted her case solely on rear end collision negligence.

The unanimous verdict of the jury was for defendant.

Plaintiff’s first assignment is in two parts, as follows:

“A. The Court refused to take judicial notice during trial and on motion for new trial of facts required to be judicially noticed, i.e., scientific facts and facts concerning the laws and forces of nature.”

and

“B. The trial court in view of the evidence before it should have realized that were plaintiff to proceed on theory other than ‘rear end collision’ theory, such as speed, failure to look, manner of driving under the circumstances, etc., justice would be served by a new trial.”

“A” fails to “state what actions dr rulings of the Court are claimed to be erroneous,” or why “it is contended the Court was wrong in any action or ruling sought to be reviewed.” It sets out only an abstract statement of law “without showing how they are (it is) related to any action or ruling of the Court.” It is not a compliance with Civil Rule 83.05(e), V.A.M.R. and preserves nothing for review.

“B” is unintelligible and, of course, also violates Civil Rule 83.05(e).

However, under each assignment the case of East v. McMenamy, Mo., 266 S.W. 2d 728, is cited, giving some indication of what plaintiff had in mind. Passing on to her argument, we find that plaintiff’s position is that the trial court should have given her a new trial so she could proceed on “specific” acts of negligence such as speed, failure to swerve, failure to keep a lookout, failure to have his car under control, or humanitarian negligence.

No similar request was made to the trial court in the motion for a new trial. We should, nevertheless, give this matter our attention because in the furtherance of justice a case should not be reversed without remanding, nor, under a defendant verdict and judgment as here, and as in East v. McMenamy, should it be affirmed, if the plaintiff “shows a state of facts which might entitle him to recover if his case were brought upon a proper theory” but instead, “in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.” Smith v. Terminal R. R. Ass’n. of St. Louis, Mo.App., 160 S. W.2d 476, 479(8, 9); East v. McMenamy, supra, 266 S.W.2d 732(7, 8),

Defendant was apparently the sole witness to the events leading up to the collision after plaintiff had stopped. He was examined by his own counsel and thoroughly cross examined by able counsel for plaintiff. All of the facts appear to have been fully developed and all available witnesses on material issues have testified Shofler v. Jordan, Mo.App., 284 S.W.2d 612, 616(10)—and there is not the “slightest suggestion that the facts were not fully developed.” Hunt v. Chicago, M., St. P. & P. R. Co., 359 Mo. 1089, 225 S.W.2d 738, 742(4).

Every “specific” act- of negligence which plaintiff suggests as a possible avenue to a successful verdict was pleaded in her petition. At the close of the case she chose the most favorable act of specific negligence and submitted her case on the rear end collision theory. In so doing, she actually had the benefit of all of the evidence relating to the other acts of specific negligence pleaded—speed, failure to sound signal or warning, failure to have' the car under control, failure to discover plaintiff, failure to stop, failure to slacken speed, and failure to swerve. Having received the benefit of presenting her evidence on all pleaded assignments to the jury and having deliberately chosen to restrict her submission to one issue because she believed it was to her advantage, “such a course is more a matter of legal strategy than of misadventure.” Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 229, 172 S.W.2d 835, 851; Hunt v. Chicago, M., St. P. & P. R. Co., supra. Under the circumstances existing here plaintiff should be held to have “abandoned all other grounds of negligence alleged in his petition.” Welch v. McNeely, Mo., 269 S.W. 2d 871, 875(1); Hunt v. Chicago, M., St. P. & P. R. Co., supra.

In East v. McMenamy, supra, where plaintiff submitted her case on the only pleaded theory; humanitarian negligence, the court concluded, (266 S.W.2d l.c. 732 (9)) “It may be that from the evidence inferences of specific negligence may be drawn” and reversed the case so plaintiff might amend her petition and “plead specific negligence.” In that case plaintiff apparently was not conscious of the possibilities of a recovery based on specific negligence. Here, plaintiff’s petition indicates she was.

Litigation must end sometime. There is nothing in the record to warrant our speculating that the evidence will sustain a more successful result for plaintiff upon the submission of a different act of specific negligence and it becomes our duty to dispose of the case finally.

During the course of the trial plaintiff offered her attorney’s brother as an expert on stopping distances, and he was asked:

“Q. I want you to tell me this, with the knowledge that you have personally in the braking field and in the automotive field and in these tests that you have actually taken, I want you to tell me if the weather conditions on concrete are absolutely dry and there is a 1955 DeSoto with good brakes how far upon the first application of the brake that car will travel before it stops?”

Defendant objected that it was immaterial because it related to a dry street while the evidence was that the street was icy. In sustaining the objection, the learned Trial Judge said:

“I sustain the objection, Miss Dorothy, on the ground that you are propounding to the witness a hypothetical question and those hypothetical questions must always be based on the facts that have been proven in the record. * * * Without scolding you, I would indicate this to you, too, you don’t tell him whether the car before they started to stop, it was traveling a thousand miles a minute or mile a week or what it was doing, you were just going to stop it — you left out — * * * And we don’t have a dry street here by agreement of everybody. You are dealing with concrete — that wouldn’t help my jury.”

The question was abandoned without an offer of proof and this question asked:

“Now, Mr. Scott, assume that the concrete surface is icy, that a man is driving a 1955 DeSoto going twenty-five — no, I’m sorry, fifteen to twenty miles an hour and he applies his brakes, do you know, under those conditions how far it would take him to stop ?”

Over objection of defendant, the following answer was permitted to stand:

“Well, you are driving a pretty heavy automobile, and I don’t know whether I can say if — but, I can give you conditions if you are going down a hill and there is a film of ice on the automobile — I mean, on the road, the car could possibly at fifteen miles an hour, according to the grade of the hill, the car could go as far as fifty to a hundred feet; if you are going uphill, you wouldn’t go so far. It’s all in the traction between the tires and the street.”

No other questions were asked of this witness.

Whether the first question was material is not a matter of concern now. It was abandoned and unanswered. No offer of proof was made. There is nothing for us to review. Keeshan v. Embassy Investment Company et al., Mo.App., 303 S.W.2d 666, 669(1, 2).

The answer to the second question was so indefinite that it has no probative value.

The final assignment is that the verdict and judgment are against the weight of the evidence.

Whether the verdict of the jury is against the weight of the evidence is for the trial court alone. Wilcox et al. v. Coons et al., 362 Mo. 381, 241 S.W.2d 907, 917 (25). The assignment “raises no question of law which we may pursue”; and the record discloses no “complete absence of probative evidence, and no such admission (of negligence) as permits or requires our action.” Robbins v. Robbins et al., Mo., 328 S.W.2d 552, 556(13). On the contrary, there was substantial evidence to support the verdict.

The judgment is affirmed.

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


author: SAMUEL E. SEMPLE, Special Commissioner.

text:
    Vivian Wooley LEVERTON, (Plaintiff) Appellant, v. Herbert P. HARTSTEIN, d/b/a Highway 61 Drive-In Theatre, (Defendant) Respondent.
    No. 31161.
    St. Louis Court of Appeals. Missouri.
    Feb. 19, 1963.
    Maurice S. Earner and James C. Jennings, St. Louis, for plaintiff-appellant.
    Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for defendant-respondent.
   SAMUEL E. SEMPLE, Special Commissioner.

Plaintiff brought this action for damages for injuries received from a bullet wound. The trial resulted in a verdict for plaintiff in the sum of $4,000. The trial court sustained defendant’s Motion for Judgment in Accordance with his Motions for a Directed Verdict and set aside the verdict of the jury and the judgment entered thereon, from which action plaintiff has taken this appeal.

Plaintiff, a 35-year-old woman, lived on Maple Lane in Jefferson County, Missouri. Her house was located several hundred feet south of the defendant’s drive-in theatre and apparently was obscured by trees and vegetation. A railroad track ran along the southwest side of the drive-in theatre between plaintiff’s home and the theatre. Between 7:45 and 8:00 P.M. on August 8, 1957, plaintiff left the house to go to an outbuilding when she heard bullets whizzing and striking in the trees around her and heard a gunshot report. She turned and went back into her house and went into her northeast bedroom. She looked out the window to see if she could locate who was doing the shooting. While standing in front of the window plaintiff was struck in the upper left thigh by a bullet. She was subsequently taken to a hospital in Festus for treatment. A detailed statement as to the extent of her injuries and damages is not necessary in determining the questions raised on this appeal. Two employees of defendant at defendant’s drive-in theatre north of plaintiff’s home engaged in target shooting with pistols a few minutes before 8:00 P.M. at the time plaintiff was wounded.

Defendant Herbert P. Hartstein was the operator of the 61 Drive-In Theatre on Highway 61 near Pevely, Missouri, and was actively engaged in the management of the business. During the month of August, 1957, he had in his employ his brother-in-law Paul Radnitz and one Wayne Weis. Radnitz, while visiting defendant during the summer of 1957, worked at the theatre. He ordinarily would run the box office and at times helped in the concession stand. Sometimes he handled the money and took the receipts home when the defendant didn’t come out to the theatre. There was testimony that Radnitz would direct Weis, as the projectionist, as to the order in which to run the films and when to start the show.

Wayne Weis was employed by defendant as a Union projectionist. In addition to his primary duty of running the projection machines he had other incidental duties which included repairing speakers, pulling weeds and other general maintenance work around the theatre. Sometimes he would keep the money to be used as change for the next night’s performance.

Weis testified that he purchased a Smith and Wesson pistol in July, 1957, and except for one or two nights a week, he kept the gun in a compartment in the base of the projection machine in the projection booth at the theatre. That on the occasions when he kept the money for change it was also placed in the compartment in the base of the projection machine. Weis further testified that he kept the pistol at the theatre for protection, because there had been some burglaries, and previously there had been some teen-age delinquents arrested for causing a disturbance. Weis testified that he showed his pistol to defendant but there was no evidence that defendant knew Weis kept the pistol at the theatre.

There was no evidence offered in the case to show that defendant ever authorized, directly or by inference, either Weis or Radnitz to keep or use any pistols on the property in connection with their duties as employees.

On the evening of August 8, 1957, Weis brought two pistols, the Smith and Wesson and a Luger, when he reported for work. Defendant was not present that evening and had no knowledge that Weis had the pistols with him. Weis testified that after arriving at the theatre, he opened the projection room in preparation for the show and checked a few speakers. Before the box office opened he and Radnitz got to talking about a gun and he got the Luger out to show to Radnitz. Radnitz asked Weis if they might take a little target practice. The two men then shot a total of about 30 rounds at some paper cups, paper plates and tin cans they placed on a gravel bank on the theatre property. At the time they fired the shots they were standing on an elevated ramp on the theatre property and were shooting down at the targets on the gravel bank. Weis testified that he did not know there were any houses back of the theatre at that time. He further testified that neither he nor Radnitz knew of the plaintiff being injured until some man came to the theatre after the show started and said that a woman had been shot.

The basic question presented on this appeal is whether Weis and Radnitz were acting within the course and scope of their employment for defendant at the time of the shooting. Plaintiff as appellant herein contends that a submissible case for the jury was made and that the court erred in setting aside the verdict and judgment for plaintiff and sustaining defendant’s Motion for Judgment In Accordance with His Motion for a Directed Verdict. Plaintiff’s theory is that at the time of the shooting Weis and Radnitz were both on the job and that both employees were engaged in performing an act fairly incidental to their employment so as to render defendant liable.

“The principle of respondeat superior applies only when what is complained of was done in the course of the employment. The principal is responsible, not because the servant has acted in his name or under color of his employment, but because the servant was actually engaged in and about his business, and carrying out his purposes. He is then responsible, because the thing complained of, although done through the agency of another, was done by himself; and it matters not in such cases whether the injury with which it is sought to charge him is the result of negligence, unskillful or of wrongful conduct, for he must choose fit agents for the transaction of his business.” Haehl v. Wabash Railway Co., 119 Mo. 325, 24 S.W. 737, 740; Bova v. St. Louis Public Service Co., Mo.App., 316 S. W.2d 140, 143.

The mere fact that a servant is in the general employ of his master at the time of the injurious occurrence does not make the master liable for the acts of the servant. The test is whether the servant at the time of the action in question was engaged in the performance of the master’s business concerning which he was employed. Blind v. Saks Fifth Avenue, Inc., Mo.App., 349 S.W.2d 425, 431.

If a servant is not engaged in the master’s business nor is concerned about it, but impelled by motives of his own, engages in an act which results in injury to a third person which has no tendency to promote the master’s business for which the servant was employed, then the master is not answerable for the acts of his servant. Bova v. St. Louis Public Service Co., supra; Milazzo v. Kansas City Gas Co., Mo., 180 S.W.2d 1, 3; Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509.

In the present case, if, from a most favorable view of the whole evidence, giving plaintiff the benefit of every reasonable inference in her favor, it appears that the acts of target shooting by defendant’s employees, Weis and Radnitz, and’ the purposes for which said acts were performed had no connection with the duties of said employees to defendant, and that the target shooting was not intended or done to accomplish or promote defendant’s business intrusted to said employees, but was the independent business or affair of the employees, then the defendant is not liable and plaintiff has failed to make a submis-sible case for the jury.

Applying these rules to the evidence presented in the case it is clear that neither Weis nor Radnitz were required to do any target shooting in the course of their employment. Weis was employed to run the projection machine at the theatre and to do repair and maintenance work on the speakers and generally around the premises and occasionally be responsible for the money used as change. Radnitz ran the box office and sold tickets. He sometimes helped out at the concession stand and on occasions was responsible for the money when defendant did not come to the theatre. The evidence was clear that defendant did not direct or in any way authorize either Weis or Radnitz to keep a gun or guns or to do .any shooting on theatre premises and was not even aware that any guns were kept at the theatre. The circumstances that Weis occasionally kept the money used for change, that there had been previous burglaries and trouble with teenage delinquents and that he kept a pistol at the theatre for protection, does not, when considered with all the other evidence in the case, raise an inference that the act of shooting at targets at the theatre was incidental to, or a part of his duties. There was no evidence whatsoever that Radnitz ever kept or possessed a gun at the theatre or that he was required to keep a gun for protection, or for any other reason, as a part of his duties. There was no evidence or any inference from any of the testimony in this case that Weis and Radnitz in firing the pistols were in any way protecting the property of defendant or themselves as defendant’s employees.

Plaintiff cites the cases of Blind v. Saks Fifth Avenue, Inc., supra; Bova v. St. Louis Public Service Co., supra; and Hubbard v. Lock Joint Pipe Co., D.C., 70 F.Supp. 589, but in each of those cases an issue of fact was presented to the effect that, at the very time of the injurious occurrence, the employee was performing or attempting to perform some act in the furtherance of his master’s business and the act complained of was performed in and intended to accomplish or promote to some appreciable extent the particular business of the master intrusted to the servant. The cases of Arnold v. Wigdor Furniture Company, Mo., 281 S.W.2d 789, and Daniels v. Krey Packing Company, Mo., 346 S.W.2d 78, cited by plaintiff do not deal with situations involving the principle of respondeat superior and are not in point.

What was the purpose of Weis and Rad-nitz in target shooting at the theatre? The only evidence which throws any light on this question was the testimony of Weis who testified on direct examination as follows:

“As I recall, Mr. Radnitz and I got to talking about the gun that I had and I had brought the Luger down to show it to him and he asked me if we might take a little target practice and I said, Well, I guess so.’ I don’t remember the exact words — anyway, we wound up taking target practice. I don’t remember who asked who, or how it came about, but I do know we set up some targets against the gravel bank and took a few shots at the targets.”

Weiss further testified on cross-examination as follows: ■

“I brought them down (referring to the pistols), and I really don’t know who said what. All I can remember is that he saw the guns, and I am pretty sure he said, ‘Let’s try them.’ ”

Weis was the only witness offered who was present and had personal knowledge of the circumstances surrounding the acts of Weis and Radnitz in target shooting. This obviously was not evidence from which it could be inferred that Weis or Radnitz at the time of the target shooting were endeavoring to accomplish any of the work defendant had intrusted to them, but to the contrary, shows a purpose to use the weapons for target practice solely for their own personal amusement and pleasure.

The evidence is wholly insufficient to show that Weis and Radnitz were acting within the course of their employment and within the scope of their authority when they undertook to do some target shooting at defendant’s theatre. Porter v. Thompson, supra; Milazzo v. Kansas City Gas Company, supra; Rodgers v. Tobias (Tex.Civ.App.) 225 S.W. 804, 805; American Railway Express Company v. Davis, 152 Ark. 258, 238 S.W. 50. The evidence, as a matter of law, shows a departure-from the master’s business for the sole purpose of the employees’ own pursuits. It is, therefore, concluded that the plaintiff failed to make a case for the jury and the trial court properly set aside the verdict and judgment for plaintiff and entered judgment for defendant.

It is recommended that the judgment of the trial court entered for the defendant be affirmed.

PER CURIAM.

The foregoing opinion by SAMUEL E. SEMPLE, Special Commissioner, is adopted as the opinion of the court.

The judgment of the trial court is accordingly affirmed.

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