author: STONE, Judge.

text:
    Roberta J. WARD, Plaintiff-Respondent, v. PENN MUTUAL LIFE INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 8000.
    Springfield Court of Appeals. Missouri.
    Dec. 20, 1961.

      Mann, Walter, Powell, Burkart & Weathers, John R. Lewis, Springfield, for defendant-appellant.
    Farrington & Curtis, Thomas G. Strong, David G. Holden, Springfield, for plaintiff-respondent.
   STONE, Judge.

Shortly after midnight on September 22, 1960, Marvin B. Ward was thrown or caused to fall from the top of a 1958 Chevrolet station wagon (on which he had been riding) to the pavement on East Division Street in Springfield, Missouri, and sustained injuries of which he died the same day. At the time of Ward’s death, two policies issued by defendant on his life were in full force and effect; and, in due course, defendant paid the basic insurance benefits provided by those policies. In this action, Roberta J. Ward, the widow and named beneficiary in the policies, sued for double indemnity benefits payable in the event of death resulting directly and independently of all other causes from bodily injury effected solely “by external, violent and accidental means”; and, upon trial, plaintiff beneficiary had a verdict on Count I for $5,146.67 and on Count II for $2,573.34. On this appeal, defendant’s primary contention is that its motion for directed verdict at the close of all the evidence should have been sustained because the evidence showed, as a matter of law, that Ward’s death did not result from “accidental means.” As spelled out in its verdict-directing instruction, defendant’s theory has been (and still is) that Ward’s death was a direct and proximate result of “his voluntary and wanton exposure to unnecessary and known danger because of his having voluntarily and knowingly assumed a position of lying prone, with legs and arms outstretched, on the top of an automobile driven by Harry Lee Murrell * * and thereafter insisting that said automobile be driven while he remained in that position,” by reason of which “his death was neither unusual nor unexpected, and was the natural and probable consequence of said voluntary acts.”

At the close of their workday about 4:45 P.M. on September 21, 1960, Ward (then thirty years of age) and Murrell (about thirty-three years of age), both of whom were employed in “line work” for Southwestern Bell Telephone Company, met at the Twilight Inn. Within a few minutes, they were joined by LeRoy Arthur Patterson (about forty-five years of age), a teletype repairman for Southwestern Bell. During the ensuing period of some four and three-quarters hours, this thirsty triumvirate diligently devoted themselves to the divertisements of “drinking beer and talking,” with each participant downing some nine or ten bottle-sized steins of 5% beer. About 9:30 P.M. they decided upon a change of surroundings; and, with Murrell at the wheel of his station wagon and both Ward and Patterson then riding inside that vehicle, the trio repaired to the Blue Ribbon Bar at the southwest corner of Commercial and Jefferson, where each had two “bowls” (somewhat larger than steins) of 5% beer and then ordered a fried chicken supper. About 11:30 P.M. (as Murrell remembered it) or midnight (as Patterson thought), they left the Blue Ribbon and went to the station wagon on the parking lot behind (or south of) the bar, intending to return to the parking lot at the Twilight Inn where Ward and Patterson had left their automobiles. Murrell again got into the driver’s seat of his station wagon and Patterson prepared to enter through the right front door. But Ward stepped on the rear bumper, climbed on top of the station wagon, and assumed a “face-down,” flat, “sort of spread-eagled position” with his head near the front of the vehicle and his arms outstretched to grasp the tops of the front doors. With Ward, in his exuberance, “cutting up in general” and. pounding on top of the station wagon, Patterson told the ebullient topsider to get down and, when the latter did not comply, Patterson braced himself against the side of the station wagon, grabbed Ward’s-right wrist, and “tried to pull him off the car * * * two or three times.” But, with Patterson pulling as hard as he could,, he “was unable to budge (Ward) at all.” Ward jerked his right arm loose, grinned at Patterson, and told him “this is the-only way I am going to ride.”

Thus failing to dislodge Ward from his-position atop the station wagon, Patterson got into the front seat and Murrell, after backing out of the parking lot, started west down the east-and-west alley behind the Blue Ribbon. Before reaching Rob-berson, the next north-and-south street, Murrell made an apparently unscheduled stop behind Floyd’s Bar, entered the rear door of that tavern, and remained inside-about five minutes — ■ “I (Murrell) don’t recall of having a beer; I think I just more or less passed the time of day for a little while.” Returning to his station wagon, Murrell found Patterson “nodding” in the front seat and Ward, still in the same position, “sort of pounding on top-of the car in a rhythm.” This bizarre behavior had awakened witness Farmer, then asleep on the second-floor porch of an adjacent .rooming house; and, with the-scene illuminated by a light at the rear of Floyd’s Bar, Farmer plainly saw Ward,. “a big husky boy,” with both arms outstretched “holding onto something” as Murrell “drove off just normally” — “just like you or I would.” A few minutes later and about eleven blocks distant, Ward’s unconscious body was found by witness Bunch, a taxi driver, on East Division Street some twenty to thirty yards east of the intersection of Division and North Sherman Avenue. His head was some three to four feet south of the white center line on Division with the body angling-in a southwesterly direction. There was “blood all over his face, his mouth, his ears and his eyes.”

On direct examination, Murrell (a defendant’s witness) testified that, after he left Floyd’s Bar, he drove west down the alley to Robberson (the next north-and-south street), made a left-hand turn and proceeded south on Robberson to Division (a distance of about three blocks), and there made another left-hand turn and proceeded east on Division to the point of tragedy. On cross-examination, he conceded that he could not remember what route he had followed after leaving Floyd’s Bar. However, he said that he had been traveling east on Division when, at a point about one hundred fifty yards east of the intersection of Division and Sherman, a then unidentified woman in an automobile had stopped him and had called his attention to the fact that “they had found someone in the street.” After then discovering that Ward was not on top of the station wagon, “I (Murrell) walked back to where this fellow was laying in the street, Mr. Ward, and when I got there I saw him; there was already a car, or something, some sort of vehicle stopped there in front of him; and I started to pick him up, I heard somebody say, ‘Don’t touch that man, don’t pick him up,’ ” so “I turned around and went up to my car” and drove away. He did not remember whether he had backed before driving away to the east, and he had no recollection whether he had circled around and returned to the scene.

Patterson (likewise a defendant’s witness), drowsy and dozing after he got into the station wagon behind the Blue Ribbon Bar, had only “a vague memory” of the stop behind Floyd’s Bar and no recollection of what had occurred thereafter until he “heard a horn honking * * * and a lady’s voice saying ‘there is a man laying in the street back there.’ ” Opening his eyes, Patterson found that the station wagon had stopped, headed east on Division, about one-half block east of the intersection of Division and Sherman. Patterson’s trial version was that Murrell thereafter backed his station wagon on the north side of Division and the then unidentified lady also backed her automobile toward the prostrate figure on the pavement; that Patterson did not get out of the station wagon and did not recognize the man in the street; that Murrell did alight, went over to the body, came back to the station wagon, “drove off a short ways, * backed up once more, and then drove off again east” on Division Street; and, that Murrell thereafter circled to the right around several blocks and came back to the intersection of East Division and North Clay (one short block west of the intersection of Division and Sherman), from which point it was observed that Ward was being loaded into an ambulance.

Murrell then proceeded to the Twilight Inn, where Patterson got into his parked automobile, and both drove directly to their respective homes. In their first statements to investigating police officers, Murrell and Patterson said that they had separated from Ward when they left the Blue Ribbon — “that he (Ward) went one direction and we went the other.” According to Murrell and Patterson, they subsequently gave other statements to the officers which were substantially the same as their testimony upon trial. Both refused to testify at the inquest into Ward’s death, Murrell because “I felt I was still under shock” and Patterson “on advice of counsel.”

In rebuttal, plaintiff called Lavonna Rotzinger who, east-bound on Division on her way to work at the Lily-Tulip plant shortly after midnight, slowed down when she saw a man lying in the street just east of the intersection of Division and Sherman but, being alone, was afraid to stop immediately. However, as she reached the top of the grade east of this intersection, the headlights of her automobile shone on a two-tone station wagon (the Murrell vehicle) which was standing unlighted, just north of Division but headed back to the south, in the first intersecting north-and-south alley or street east of the prostrate body. When the headlights of the Rotzinger automobile struck the unlighted station wagon, the driver of that vehicle (Murrell) immediately turned on his headlights and made a right turn to the west onto Division. As the west-bound station wagon and the east-bound Rotzinger automobile came side by side, both vehicles halted and witness Rotzinger told the two men in the station wagon “that there was a man laying in the street back there” but that she had not stopped because she was alone. Although neither of the two men in the station wagon spoke, the driver (Murrell) started forward to the west so witness Rotzinger backed her automobile to the west beside the station wagon. When the vehicles stopped near the body, both drivers alighted and walked to Ward.

North Clay Avenue is the first north-and-south street west of North Sherman Avenue, so a vehicle east-bound on Division Street (along the route which Murrell said, on direct examination, he had taken) would have passed through the intersection of East Division and North Clay only a short block before reaching the intersection of East Division and North Sherman. There is “a bad dip” in Division Street at the intersection of Division and Clay; and, as witness Bunch observed without objection, “you have to hit it kind of slow, or your head will hit the top of the car if you are not careful.” After passing this bad dip at Division and Clay, an east-bound vehicle on Division would have traveled down “a pretty good little grade” in the short block to the intersection of Division and Sherman, would have passed through a “level dip” at the latter intersection, and then would have started upgrade.

The record includes considerable evidence bearing upon the extent of the reasonably foreseeable danger to Ward in his riding upon the top of Murrell’s station wagon. Ward, then thirty years of age, was about six feet one inch in height, weighed an estimated one hundred seventy-five to one hundred ninety pounds, and wore a 34-inch sleeve. The undisputed evidence convincingly established that he was an athletic, muscular, strong individual. Murrell said that Ward was “as strong as a bull,” that he was “as strong as any man down there” (referring to Southwestern Bell where both Murrell and Ward were employed), that “he was a man that you couldn’t wear out,” that in his work he could climb telephone poles with gaffs on his legs “like a cat,” and that, while working on poles, Ward pulled up heavy materials “that would weigh * * as high as a hundred pounds or more.” Patterson referred to Ward as “a very, I would say, exceedingly strong individual.” During the Summer of 1960 when Ward was building a cabin, he and Murrell shoveled and moved by wheelbarrow three truch loads of gravel one morning and then poured the cabin floor that same afternoon. It was shown also that Ward was an archer who used a 58-pound bow (i. e., a bow requiring fifty-eight pounds of pressure “to cock it in an aiming position”), and that as a bow-and-arrow hunter he had held his bow in a cocked position “for a period of time” and had killed two deer. For some time (although, of course, not on the date of this tragedy), Ward had worked both for Southwestern Bell and for a cab company. During that period of dual employment, Ward had worked five days each week for Southwestern Bell from 8:00 A.M. to 4:30 P.M. with one-half hour for lunch, and seven days each week for the cab company from 5:30 P.M. to 2:00 or 3:00 A.M.

Returning to the night of this tragedy, we note that there was testimony by Murrell that he was “perfectly able to drive” when he and his companions left the Blue Ribbon and that all of them “were perfectly able to walk and control (themselves) physically,” and by Patterson that none of the three then “showed any influence of liquor.” Witness Rotzinger, who had stood “right beside” Murrell near Ward’s body, said that “he acted all right to me,” that his “manner of walking” did not indicate that he had been drinking, and that there was no odor of alcohol about him. Plaintiff testified that, in a telephone conversation with her husband (Ward) about 11:00 P.M. on September 21, there was no indication “that he was in any degree under the influence of alcohol.” And, in a colloquy near the close of the trial, defendant’s counsel stated that he could not argue that Ward was intoxicated, for “there is no evidence of it.”

As witness Farmer from his second-story vantage point watched Murrell drive from the rear of Floyd’s Bar, Ward did not roll or bounce around on top of the station wagon but remained stationary with outstretched arms “holding onto something.” Officer Shaffer of the Springfield Police Department (called as a defendant’s witness), an identification technician with thirty years’ experience, made a minute examination of the top of Murrell’s station wagon on the day following Ward’s death. That examination disclosed (1) “an oily spot” about five inches in circumference, some two feet from the front and about equidistant from the sides of the top, which Shaffer believed to have been made by Ward’s forehead (there is, so Shaffer said, more oil in skin on the forehead than on other areas of the face), (2) two small brass-colored marks about one and one-quarter inches in length, some three feet behind the oily spot, which were of the same color and appearance as the brass buckle on Ward’s belt and, in Shaffer’s opinion, had been made by that buckle, (3) two crescent-shaped black marks about one and three-quarters inches in length, some three feet behind the brass-colored belt buckle marks, which Shaffer believed to have been made by the edges of the heavy black rubber or composition soles of Ward’s shoes (white oxidized paint corresponding to that on top of the station wagon was found on the edges of Ward’s shoe soles), (4) Ward’s palm print about eight inches to the left of the oily spot (i. e., toward the driver’s door), which could have been made as he lowered his weight onto the top, and (5) one whole fingerprint (identified as Ward’s print) and many smudged prints above the top of the front door on each side, which, in Shaffer’s opinion, had been made as Ward held to the top of the doors while riding. From his examination of the oily spot, the two small brass-colored belt buckle marks, and the two crescent-shaped black shoe sole marks, Shaffer said that “there was no indication that the man had moved at any time.” ‘

In rebuttal, plaintiff produced one Royal Thomson, a dock foreman for Campbell “66” Express, who was six feet one inch in height, weighed about one hundred seventy-five pounds, and had a sleeve length of thirty-three inches. Over defendant’s objections, Thomson was permitted to testify that, on the Saturday morning prior to the trial, he had ridden in a face-down, spreadeagled position on top of a 1958 Chevrolet station wagon for a distance of about one mile over a semi-blacktop road east of Springfield “considerably rougher” than the surface of East Division Street, as the station wagon was driven up and down hills at a speed of about forty-five miles per hour and around two “country square corners” or “right-hand turns” at thirty miles per hour. Thomson said that, in the course of this ride, he had experienced very little wind resistance, “there was no movement whatsoever” of his body, and no part thereof bounced away from the top of the station wagon. The top “gave” under his weight and formed “more or less a cradle” —“you are bedded down more or less into the top.” This ride, at speeds higher than the speed limit on Division Street, was not attempted on Division because, as Thomson put it, “we were afraid the law might interfere.” Prior to the ride on top of- the 1958 Chevrolet station wagon, Thomson had ridden a few times on top of other automo- • biles. Over objection, the plaintiff widow testified that she had seen Ward ride, without incident, on top of a moving vehicle on Glenstone Avenue in Springfield.

Ward not only was a fellow-employee of Murrell but also was a hunting companion and, as Murrell expressed it, “a very good friend.” Without objection, Murrell said that Ward had ridden with him on other occasions, trusted his (Murrell’s) driving, and had no reason whatever to think that Mur-rell would do anything to endanger Ward. In driving from the Blue Ribbon Bar to the Twilight Inn, Murrell could have fol-Ipwed any one of several different routes, and there was no evidence that Ward knew, when he climbed on the station wagon, which of those routes Murrell intended to take.

Instant plaintiff was content, in her case in chief, to establish the violent death of her husband, the insured. This made a prima facie case of death by accidental means so that defendant’s motion for a ■directed verdict at the close of plaintiff’s case properly was overruled. Sellars v. John Hancock Mut. Life Ins. Co., Mo.App., 149 S.W.2d 404, 405(1); McKeon v. National Casualty Co., 216 Mo.App. 507, 518, 270 S.W. 707, 710(2); Meadows v. Pacific Mut. Life Ins. Co. of Cal., 129 Mo. 76, 92, 31 S.W. 578, 583. On this appeal, the substance and import of plaintiff’s initial contention is that, since defendant’s evidence was oraP (not documented) and was not admitted by plaintiff to be true, defendant thereafter could not have been entitled to a directed verdict at the close of all the evidence, because in any event:the jury, would have had the right to disbelieve evidence of that character in its entirety. Language to that effect (upon which plaintiff relies) may be found in Smith v. Metropolitan Life Ins. Co., Mo.App., 107 S.W.2d 808, 811(6, 7), but numerous authorities leave no room for doubt but that plaintiff’s-contention may not be accepted in this category of cases. See particularly Berne v. Prudential Ins. Co. of America, 235 Mo.App. 178, 129 S.W.2d 92.

The presumption of death by accidental means, raised by plaintiff’s showing of insured’s violent death and utilized to make a prima facie case, was not evidence of the fact presumed but was only a rebut-table legal presumption which had the procedural effect of shifting to defendant the' burden of going forward with the evidence. That insured’s death had resulted from accidental means was an essential element of plaintiff’s cause of action, as to which the burden of proof rested upon and abided with plaintiff throughout the case [Gennari v. Prudential Ins. Co. of America, Mo., 335 S.W.2d 55, 60(1) ; Boring v. Kansas City Life Ins. Co., Mo., 274 S.W.2d 233, 239(9) ; Griffith v. Continental Casualty Co., 299 Mo. 426, 444, 253 S.W. 1043, 1048 (8, 9)], and defendant’s contention (i. e., that insured’s death was a direct and proximate result of voluntary and wanton exposure to unnecessary and known danger, so that his death was neither unusual nor unexpected but was the natural and probable consequence of such voluntary act) simply disputed and disavowed that essential element of plaintiff’s cause of action (i. e., that insured’s death had resulted from accidental means) and did not constitute an affirmative defense. Gennari v. Prudential Ins. Co. of America, supra, 335 S.W.2d loc. cit. 60-61. If defendant had adduced positive, clear and certain evidence, in no material respect self-impeaching, which plainly revealed the circumstances under which insured had been injured, convincingly showed that such injury was not by accidental means, and fairly afforded no reasonable basis for a contrary conclusion, numerous reported cases in this jurisdiction demonstrate that a verdict for defendant properly might have been directed even though its evidence was altogether oral, unless plaintiff thereafter had produced in rebuttal substantial evidence bringing the case within the policy coverage. However, with neither Murrell nor Patterson professing to have any reliable recollection or definite knowledge as to the time when Ward was thrown from the top of the moving station wagon or as to the speed at which or the manner in which that vehicle was being driven immediately prior thereto, we have no direct evidence concerning the tragic occurrence itself [contrast Landau v. Pacific Mut. Life Ins. Co., 305 Mo. 542, 267 S.W. 370; State ex rel. Bowdon v. Allen, 337 Mo. 260, 85 S.W.2d 63]; and, with both Murrell and Patterson cast in the ugly, unhonorable and unenviable role of self-confessed liars to the investigating officers, and with their trial versions of the factual circumstances effectively impeached in material particulars, certainly their testimony fell far short of being clear, certain, convincing and compelling. Winter v. Metropolitan Life Ins. Co., Mo.App., 129 S.W.2d 99; Russell v. Metropolitan Life Ins. Co., Mo.App., 149 S.W.2d 432.

We recognize the general principle (emphasized by defendant) that, even though an injury may be unexpected, unforeseen and unusual, it does not occur by accidental means if the means causing the injury has been employed by insured voluntarily in the usual and expected way. Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 660, 267 S.W. 907, 921, 39 A.L.R. 56. But, for intelligent application of the principle, it is necessary to bear in mind that “means,” as used in policy provisions such as those under consideration, is equivalent to “cause,” and it is equally essential to understand that, “(s)ince the question of whether accidental means have been employed in a given instance is one which involves the intention or voluntary conduct of the insured, the matter becomes the more complicated when some human agency other than the act of the insured himself has entered into the doing of the things which produced the ultimate result.” Camp v. John Hancock Mut. Life Ins. Co., Mo.App., 165 S.W.2d 277, 281, certiorari denied Mo.Sup. (No. 38393). In this connection, see also Callahan v. Connecticut General Life Ins. Co., 357 Mo. 187, 195, 207 S.W.2d 279, 284.

In the case at bar, Ward voluntarily and intentionally assumed a spreadeagled position on top of Murrell’s station wagon while it was parked behind the Blue Ribbon Bar. But, obviously that action would not, in and of itself, have endangered Ward’s life, even as the insured’s conduct under review in the Callahan case, supra, in “just sitting in the car under the temperature and conditions prevailing” would not have endangered his life. [357 Mo. loc. cit. 196, 207 S.W.2d loc. cit. 285] Ward’s position on top of the station wagon subsequently resulted in his death only by reason of movement of that vehicle and thus by reason of Murrell’s conduct, for which we think (and there is no suggestion to the contrary) that Ward was not legally chargeable, even as it was said in the Callahan case, supra, that the insured was not legally chargeable with the extraneous force (namely, the weather) which resulted in his death. [357 Mo. loc. cit. 195, 207 S.W.2d loc. cit. 284] Particularly in situations of this character where “some human agency other than the act of the insured himself has entered into the doing of the things which produced the ultimate result” [Camp v. John Hancock Mut. Life Ins. Co., supra, 165 S.W.2d loc. cit. 281], the reported cases in this and other jurisdictions (many of which are cited in instant defendant’s brief) alike attest the overriding importance of the question as to whether the insured reasonably should have anticipated and foreseen injury as a natural and probable consequence of his voluntary action. So, in ruling instant defendant’s earnest contention that it was entitled to a directed verdict, the determinative question becomes whether we may say, as a matter of law, that, when Ward assumed a spread-eagled position on top of the station wagon, he reasonably should have anticipated and foreseen, as a natural and probable consequence of his action, that in Murrell’s driving of the station wagon to the Twilight Inn he (Ward) would be dislodged from his position and thereby might sustain injury or death.

In resolving this question and determining the submissibility of the case, we have, as is our duty, viewed the evidence in the light most favorable to plaintiff [Edwards v. Business Men’s Assur. Co., 350 Mo. 666, 678, 168 S.W.2d 82, 88] and accorded to her the benefit of all inferences fairly deducible from the evidence [Landau v. Pacific Mut. Life Ins. Co., supra, 305 Mo. loc. cit. 557, 267 S.W. loc. cit. 374(3)], remaining mindful that, in this general category of actions as in others, a submissible case may be made on circumstantial evidence [e. g., Edwards v. Business Men’s Assur. Co., supra, 350 Mo. loc. cit. 678-680, 168 S.W.2d loc. cit. 88-90; Gilpin v. Aetna Life Ins. Co., 234 Mo.App. 566, 132 S.W.2d 686] and that a case should not be withdrawn from the jury unless the facts and inferences fairly deducible therefrom, when considered most favorably to plaintiff, leave no room for different conclusions by reasonable men in the honest exercise of an impartial judgment. Winter v. Metropolitan Life Ins. Co., supra, 129 S.W.2d loc. cit. 103(2-5) ; Antweiler v. Prudential Ins. Co. of America, Mo.App., 290 S.W.2d 652, 653 (2). That our perspective might not become distorted, we also have borne in mind that, with no policy exception or exclusion relieving defendant of liability in any such event or for any such reason, submissibility of plaintiff’s case would not be precluded simply by a showing that the insured (Ward) was under the influence of an alcoholic beverage, or was careless and negligent, or voluntarily exposed himself to known danger.

No case has been cited or found in which an insured has fallen or been thrown from the top of a moving motor vehicle, but our research has disclosed three cases in which benefits have been sought for the death of an insured riding on top of a moving train. In one of those cases [Cox v. Mutual Life Ins. Co. of Baltimore, Mo.App., 109 S.W.2d 694], a policy provision specifically excluded liability for death “from violation of law by the insured”; and, it appearing that insured was killed (when struck by an overhead beam) while stealing a ride on top of a passenger train in violation of an applicable Illinois statute and that such violation of law materially increased insured’s risk of accidental death, the court understandably directed a judgment for defendant. That holding is not relevant or persuasive here. In each of the other two cases [Continental Casualty Co. v. Whitmore, 79 Ind.App. 157, 137 N.E. 575; Pacific Mut. Life Ins. Co. v. Adams, 27 Okl. 496, 112 P. 1026], it was held that plaintiff-beneficiary had made a submissible case notwithstanding the important fact that the policy coverage was more limited and restricted than in the case at bar, in that there was a specific exclusion of liability for “voluntary exposure to unnecessary danger” in the Continental Casualty case and for “unnecessary exposure to danger or perilous venture” in the Pacific Mutual case. Particularly interesting and pertinent is the reasoning in the Continental Casualty case [137 N.E. loc. cit. 577], where the insured was lying on his stomach on top of a freight train when there was a separation in the train caused by a broken arch bar on one of the cars: “We would not be warranted in holding the act in question to be a ‘voluntary exposure to unnecessary danger,’ as a matter of law, if different men, equally intelligent and unbiased, might fairly differ in their opinions in that regard, after considering all the attending facts and circumstances shown by the evidence, such as the age and experience of the decedent, the character of the roadbed, tracks, and train, the manner in which the train was operated, the means which might be used to prevent being thrown therefrom, the use which the decedent made of such means, the cause of the accident, whether it was usual and therefore should have been anticipated, or otherwise, the knowledge possessed by the decedent of the general danger in so riding, and of the particular danger which caused his injuries.”

In this case, we are concerned primarily with the related conduct of Ward, an exceptionally strong and virile man in the physical prime of life, and of Murrell, Ward’s fellow-workman, hunting companion, drinking comrade, and close friend. From the evidence adduced, we believe that the triers of the facts reasonably could have inferred and found that, when Ward assumed a spread-eagled position on top of Murrell’s station wagon, he (Ward) was in a position which enabled him to grasp and hold firmly to the top of the front doors — the same position in which he previously had ridden safely on top of other moving motor vehicles; that, on this occasion, Ward did grasp and hold firmly to the top of the front doors and did ride safely, without material movement or substantial change of his position, to a point near the location where his body was found; that Ward had no reason to doubt Murrell’s ability to drive on this occasion or to foresee that Murrell might not proceed with appropriate regard for the safety of his topside passenger; and, that Ward was thrown or caused to fall from his position by reason of some unusual force generated by and resulting from Murrell’s handling and driving of the station wagon, which said force was extraneous and external to Ward and unexpected and unforeseen by him. Consult Guaranty Trust Co. v. Continental Life Ins. Co., 159 Wash. 683, 294 P. 585, 587.

Without moralizing upon Ward’s participation in a protracted beer-drinking bout, that phase of the case may be dismissed with the sage comment of our Supreme Court, en banc (buttressed by that court’s citation of Proverbs 23:29-32, and our addition of Proverbs 20:1, from the inspired writing of the world’s wisest man), that: “Peradventure drinking makes some men surly, ugly, unaccommodating, and obstinate; some mellow, merry and yielding; some vivacious and witty; some stupid and sodden; and, since the days of Noah to this very day, all men the worse off in the long run.” Donaldson v. Donaldson, 249 Mo. 228, 238, 155 S.W. 791, 794. And, without philosophizing concerning Ward’s conduct after leaving the Blue Ribbon Bar, it may be observed that many individuals (e. g., the members of this court) would foresee injury as a natural and probable result if they undertook to ride spread-eagled atop a moving motor vehicle. But, our question is a legal, not a moral or philosophical, one; and, in its determination, we are tied to the facts of this case, with such inferences as reasonably may be deduced therefrom. Without repeating or restating the testimony heretofore recorded in much detail, suffice it to say at this point that we are unable to escape the conclusion that we should not and may not hold, as a matter of law, that Ward reasonably should have anticipated and foreseen injury, as a natural and probable consequence of his conduct. In addition to cases cited supra, see Life & Casualty Ins. Co. of Tenn. v. Benion, 82 Ga.App. 571, 61 S.E.2d 579, 581(4-6); Rodgers v. Reserve Life Ins. Co., 8 Ill.App.2d 542, 132 N.E.2d 692; Travelers’ Ins. Co. v. Clark, 109 Ky. 350, 59 S.W. 7. So concluding, we reject defendant’s contention that it was entitled to a directed verdict.

In a second point, defendant assigns error in permitting plaintiff to testify that she had seen her husband (Ward) ride on top of motor vehicles and in permitting witness Thomson to testify concerning his ride on top of a 1958 Chevrolet station wagon (the same make and model of motor vehicle as that on which Ward rode on the night of his injury). Reception of this evidence is said to have been erroneous for three reasons, towit, (1) it “was improper rebuttal evidence because it did not rebut any evidence offered by appellant (defendant),” (2) “offered by respondent (plaintiff) for the reason that it tended to prove the safety of riding on top of automobiles, (it) was reversibly erroneous, being incompetent to show that such was free of danger,” and (3) “no proper foundation in the form of showing similarity of circumstances was laid prior to introduction of such testimony.”

Defendant’s argument on the first reason runs along the line that the evidence under consideration should not have been received in rebuttal because “defendant (had) offered no testimony that decedent (Ward) had not ridden on tops of automobiles before the night of his death, nor that a person could not under any circumstances do so safely”; but, as we think, this reflects an unduly circumscribed view of what plaintiff properly might have offered as rebuttal evidence in the particular circumstances of the instant case. Plaintiff made a prima facie case simply by showing Ward’s violent death and, as is permitted in this category of actions, rested. Defendant, to whom the burden of going forward thereby shifted, then adduced evidence in support of its pleaded (and subsequently submitted) theory that Ward’s death was a direct and proximate result of “his voluntary and wanton exposure to unnecessary and known danger” in riding on top of Mur-rell’s station wagon, by reason of which “his death was neither unusual nor unexpected, and was the natural and probable consequence of said voluntary acts.” At the conclusion of defendant’s case, it became appropriate and proper for plaintiff thereafter to offer in rebuttal any competent evidence explaining, counteracting or repelling defendant’s evidence and the inferences reasonably deducible therefrom. O’Brien v. Equitable Life Assur. Soc. of U. S., 8 Cir., 212 F.2d 383, 387, certiorari denied 348 U.S. 835, 75 S.Ct. 57, 99 L.Ed. 658; Sellars v. John Hancock Mut. Life Ins. Co., supra, 149 S.W.2d loe. cit. 406 ; 88 C.J.S. Trial § 101, p. 212; Id., § 99, p. 211. With plaintiff’s right to recover vel non under the above-stated theory depending (as we have determined) upon the vital inquiry as to what Ward reasonably should have anticipated and foreseen as a natural and probable consequence of his conduct, we have no doubt but that plaintiff’s testimony concerning Ward’s previous rides on top of moving motor vehicles was relevant upon that vital inquiry and tended to counteract or repel defendant’s evidence designed to convince the jury that Ward had exposed himself voluntarily and wantonly to such danger that his death was neither unusual nor unexpected but was the natural and probable consequence of his conduct; and, in our view, the testimony of witness Thomson (more particularly that, during his ride on top of a 1958 Chevrolet station wagon, he had experienced very little wind resistance, that there had been no movement or bouncing of his body, and that the top had formed “more or less a cradle” — “you are bedded down more or less into the top”) was not wholly irrelevant upon the same vital inquiry, for it reasonably might have been inferred that Ward, having theretofore ridden on top of moving motor vehicles, would have had like knowledge when he climbed onto Murrell’s station wagon behind the Blue Ribbon Bar. So, we think that the testimony of plaintiff and witness Thomson was not vulnerable to the complaint that it “was improper rebuttal evidence.”

In support of the second reason under this point, defendant cites actions ex delicto such as Johnson v. Kansas City Public Service Co., 360 Mo. 429, 228 S.W.2d 796, and Gilbert v. Bluhm, Mo., 291 S.W.2d 125, 58 A.L.R.2d 1164 in which it has been held (as defendant’s brief puts it) “that testimony of non-occurrence of other mishaps is not competent to show that the place of injury was free from danger.” Quickly conceding here (as she did to the trial judge) that riding on top of a moving motor vehicle is not free from danger, plaintiff appropriately points out that the determinative question in this case was not whether Ward’s riding in spread-eagled position on top of Murrell’s station wagon was free from danger, but rather was whether riding in such position was so dangerous that Ward reasonably should have anticipated and foreseen injury as a natural and probable consequence thereof. Cases cited by defendant in this connection are not here applicable or controlling.

Finally, defendant assails the evidence under discussion because “no proper foundation in the form of showing similarity of circumstances was laid.” With respect to plaintiff’s testimony concerning Ward’s prior rides on other vehicles, defendant’s only complaint for the quoted reason came in a motion to strike this answer, “well, actually there wasn’t much to it, he (Ward) just rode on top of the car,” after plaintiff in response to previous questions already had testified that she had seen her husband ride on moving vehicles. And, when the court suggested, without ruling defendant’s motion to strike, that counsel should “bring out a little bit of the circumstances,” the subsequent examination of plaintiff on this subject was conducted without further mention of the ground now urged. Thus, as to plaintiff’s testimony, the present complaint for failure to show sufficient similarity of circumstances was not properly presented to or expressly decided by the trial court and should not be ruled here. V.A.M.S. § 512.160(1); Pierce v. New York Cent. R. Co., Mo., 257 S.W.2d 84, 88(5), and cases there cited. Regardless of that, we think that testimony concerning Ward’s prior rides on moving vehicles would, without a showing of close similarity of conditions, have been relevant upon the vital inquiry as to whether, on the night of his death, he reasonably should have anticipated and foreseen injury as a natural and probable consequence of his riding spread-eagled on Murrell’s station wagon.

The testimony of witness Thomson concerning his ride on a 1958 Chevrolet station wagon was experimental evidence, i. e., that of a witness who, after the occurrence giving rise to the suit, makes an experiment for the purpose of ascertaining the effect of certain action and then relates under oath the facts concerning such experiment. 2 Wigmore on Evidence (3rd Ed.), § 445, p. 432; State v. Harlan, Mo., 240 S.W. 197, 201. When experimental evidence is offered for the purpose of showing a thing’s capacity or tendency to produce or not to produce an effect of a given character, the required similarity of circumstances is “a similarity in essential circumstances, or, as it is usually expressed, a substantial similarity, i. e., a similarity in such circumstances or conditions as might supposably affect the result in question.” 2 Wigmore on Evidence (3rd Ed.), § 442, loc. cit. 425; J. Q. Lloyd Chemical Co. v. G. Mathes & Sons Rag Co., 145 Mo.App. 675, 690, 123 S.W. 528, 532. The only differences in the conditions under which Ward and witness Thomson rode, which defendant mentions in this connection, were (1) that Thomson drank no alcoholic beverage before he rode and (2) that he rode in daylight. But, we recall the testimony here-inbefore noted to the effect that Ward showed no indication of being under alcoholic influence and the trial concession of defendant’s counsel that he could not argue Ward’s intoxication for “there is no evidence of it,” and we incline to the belief (with no suggestion to the contrary) that the only material factor relevant to the safety of a topside rider, upon which the time of day or night reasonably might be thought to have any substantial influence, would be the scope and clarity of the rider’s field of observation, if he were looking ahead. Mindful that, “(i)n accordance with the fundamental principle that the object of all evidence is the ascertainment of the truth with reference to the existence or nonexistence of the facts in controversy, the criterion for the admissibility of evidence of experiments is whether such evidence tends to enlighten the jury and enable them more intelligently to consider the issues presented” [32 C.J.S. Evidence § 587, p. 440], that “ ‘(u)nless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue’ ” [Biener v. St. Louis Public Service Co., Mo.App., 160 S.W.2d 780, 783], and that the trial judge is accorded a substantial measure of discretion with respect to admission or exclusion of experimental evidence [Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 96-97, 61 S.W.2d 918, 921(3); Kerby v. Schindell, 235 Mo.App. 691, 697, 146 S.W.2d 670, 673(4)], we conclude that the differences in the conditions under which Ward and witness Thomson rode were not such as to compel rejection of Thomson’s experimental testimony and, upon admission of such testimony, were for the jury in evaluating the weight to be accorded it [Faught v. Washam, Mo., 329 S.W.2d 588, 598; Carpenter v. Kurn, 348 Mo. 1132, 1138, 157 S.W.2d 213, 215(3); Griggs v. Kansas City Rys. Co., Mo., 228 S.W. 508, 511-512(6)], and that we may not find prejudicial error, in any respect preserved and assigned by defendant, in the admission of witness Thomson’s testimony concerning his ride. Cf. Williams v. Thompson, Mo., 251 S.W.2d 89, 91.

The judgment is affirmed.

RUARK, P. J., and McDOWELL, J.,. concur.

      . O’Brien v. Equitable Life Assur. Soc. of U. S., 8 Cir., 212 F.2d 383, 386-387, certiorari denied 348 U.S. 835, 75 S.Ct. 57, 99 L.Ed. 658; Griffith v. Continental Casualty Co., 299 Mo. 426, 444-445, 253 S.W. 1043, 1048(10); Sellars v. John Hancock Mut. Life Ins. Co., Mo.App., 149 S.W.2d 404, 405-406(2); Ray v. Mutual Life Ins. Co. of N. Y., Mo.App., 218 S.W.2d 986, 990(3). See also Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 880 (5-7).

      .Contrast Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 369, 1 S.W.2d 99, 101(1, 2), 57 A.L.R. 615 (erroneously regarded as controlling in Smith v. Metropolitan Life Ins. Co., Mo.App., 107 S.W.2d 808, 810-811), in which insurer’s defense upon a policy provision excepting liability for injury received in “any vehicle or mechanical device for aerial navigation” was an affirmative defense, as to which insurer had the burden of proof. “It is * ⅜ * the general rule in such circumstances that the plaintiff’s case cannot be taken from the jury, for he has the right to have the jury pass on the credibility of the defendant’s witnesses and the weight of their testimony, though uncontroverted,” unless “the proof is documentary, or the defendant relies on the plaintiff’s own evidential showing (or evidence which the plaintiff admits to be true), and the reasonable inferences therefrom all point one way.” (Emphasis ours.) In this connection, see also Hughes v. Aetna Ins. Co., Mo., 261 S.W.2d 942, 951-952.

      . Ieppert v. John Hancock Mut. Life Ins. Co., Mo.App., 347 S.W.2d 436, 444(1); Perringer v. Metropolitan Life Ins. Co., 241 Mo.App. 521, 244 S.W.2d 607; Ray v. Mutual Life Ins. Co. of N. Y., supra; Sellars v. John Hancock Mut. Life Ins. Co., supra; Berne v. Prudential Ins. Co. of America, 235 Mo.App. 178, 129 S.W.2d 92. See also State ex rel. Bowdon v. Allen, 337 Mo. 260, 85 S.W.2d 63, and Hendrix v. Metropolitan Life Ins. Co., Mo., 250 S.W.2d 518, 520-521(2, 3).

      . Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 660, 267 S.W. 907, 921, 39 A.L.R. 56; Callahan v. Connecticut General Life Ins. Co., 357 Mo. 187, 193, 207 S.W.2d 279, 282-283; Camp v. John Hancock Mut. Life Ins. Co., Mo.App., 165 S.W.2d 277, 280, certiorari denied Mo.Sup. (No. 38393); Pope v. Business Men’s Assur. Co. of America, 235 Mo.App. 263, 274, 131 S.W.2d 887, 892(3); 45 C.J.S. Insurance § 754, loc. cit. 784.

      . Sellars v. John Hancock Mut. Life Ins. Co., supra, 149 S.W.2d loc. cit. 409; Russell v. Metropolitan Life Ins. Co., Mo.App., 149 S.W.2d 432, 436(6); Podesta v. Metropolitan Life Ins. Co., Mo.App., 150 S.W.2d 596, 598(4), certiorari denied Mo.Sup. (No. 37749) ; Camp v. John Hancock Mut. Life Ins. Co., supra, 165 S.W.2d loc. cit. 281-283, certiorari denied Mo.Sup. (No. 38393); Moore v. Metropolitan Life Ins. Co., Mo.App., 237 S.W.2d 210, 212; Perringer v. Metropolitan Life Ins. Co., supra, 241 Mo.App. loc. cit. 537-538, 244 S.W.2d loc. cit. 617(7, 8). See also Lovelace v. Travelers’ Protective Ass’n., 126 Mo. 104, 114, 28 S.W. 877, 879, 30 L.R.A. 209.

      . Mutual Life Ins. Co. of New York v. Distretti, 159 Tenn. 138, 17 S.W.2d 11, 12(3); Winton v. Metropolitan Life Ins. Co., 174 Tenn. 252, 124 S.W.2d 712, 713 (3); Baker v. National Life & Acc. Ins. Co., 201 Tenn. 247, 298 S.W.2d 715; Magnoli v. John Hancock Mut. Life Ins. Co., 192 Misc. 344, 78 N.Y.S.2d 130, 134 (11); Kalahan v. Prudential Ins. Co. of America, 194 Misc. 87, 84 N.Y.S.2d 433, 436; Riggins v. Equitable Life Assur. Soc., 64 Ga.App. 834, 14 S.E.2d 182, 183-184(2); Carolina Life Ins. Co. v. Young, 99 Ga.App. 848, 110 S.E.2d 67, 71. See also Kinavey v. Prudential Ins. Co. of America, 149 Pa.Super. 568, 27 A.2d 286, 288; McGuire v. Metropolitan Life Ins. Co., 164 Tenn. 32, 46 S.W.2d 53, 54; Smith v. Aetna Life Ins. Co., 115 Iowa 217, 88 N.W. 368, 370, 56 L.R.A. 271; 29A Am.Jur., § 1176, loc. cit. 322.

      . Callahan v. Connecticut General Life Ins. Co., supra, 357 Mo. loc. cit. 190, 207 S.W.2d loc. cit. 285; Union Central Life Ins. Co. v. Cofer, 103 Ga.App. 355, 119 S.E.2d 281, 285(2, 4); United States Mut. Acc. Ass’n. v. Hubbell, 58 Ohio St. 516, 47 N.E. 544, 546, 40 L.R.A. 453; Kinavey v. Prudential Ins. Co. of America, supra, 27 A.2d loc. cit. 288(6); 45 C.J.S. Insurance §§ 774, 775, and 785, lip. 805, 808 and 824, resp.; 29A Am. Jur., Insurance, § 1174, p. 320.


source: Caselaw Access Project

author: CALVERT, Chief Justice.

license: Public Domain

text:
    R. E. NEVILLE et al., Relators, v. Judge Harris BREWSTER et al., Respondents.
    No. A-8524.
    Supreme Court of Texas.
    Nov. 29, 1961.
    Rehearing Denied Jan. 17, 1962.
    Spurlock, Schattman & Jacobs, Fort Worth (Kenneth M. Cole, Jr., Fort Worth, with above firm), for relator.
    Bailey & Williams, Dallas, for respondent Texas Bitulithic Co.
    Crumley & Green, Fort Worth, for respondent Bridge Builders, Inc.
    Crowley, Wright, Miller & Garrett, Fort Worth, for respondent City of Arlington.
   CALVERT, Chief Justice.

Relators, Neville and Drs. Key and Doss, seek a writ of mandamus directing' the Honorable Harris Brewster, Judge of the 67th District Court of Tarrant County, Texas, to vacate an order requiring the two physicians to produce certain medical records in their possession and to deliver the same to the court reporter taking their depositions for the purpose of photostating the same and attaching the copies to the depositions.

Neville had filed a personal injury suit in the 67th District Court against Texas Bitulithic Company and the City of Arlington. The defendants in that case filed notice to take depositions of Doctors Key and Doss upon written interrogatories. The interrogatories propounded merely sought to identify the witnesses as having examined and treated Neville and then requested that the witnesses deliver to the court reporter “all written records that you have in connection with such treatment or examination, including hills, or reports, office notes or anything else in writing concerning this patient” for the purpose of photo-stating the same and attaching to the depositions. Subpoenas duces tecum had been issued and served, requiring each doctor to produce “all written records in connection with the treatment of R. E. Neville, including bills, reports, office notes, or anything else in writing concerning such patient”. The doctors refused to deliver over these records on the ground that they were confidential.

Thereafter, the respondent, Bitulithic Company, moved that the court order the doctors “to produce the medical records” which they had in their possession “concerning the plaintiff, R. E. Neville,” for copying and for use in the trial of the case. Notice of this motion was served upon Neville and his attorney, but not upon the medical witnesses. On a hearing the court ordered that the doctors produce the “medical records which they have in their possession concerning the plaintiff, R. E. Ne-ville” for the purpose stated in the motion.

Relators advance several grounds for their conclusion that the court’s order is unauthorized and void. They first say that the Texas Rules of Civil Procedure cannot be construed so as to require a non-party witness to produce his private records for copying or for any other purpose. In other words, they seem to take the position that the term “produce” would not even comprehend an examination of the records by the attorneys for the respondents-defendants. This interpretation would render “the order to produce” wholly useless and accomplish nothing. The production of the documents is required for the purpose of examination and if the documents may be examined then under proper safeguards there is no apparent reason why they may not be copied.

Next, they say that this procedure would effectively deny the relator, Neville, the right of cross-examination. We think this contention is also without merit. Under Rule 189 there is afforded to Neville the right of filing interrogatories, though we agree with him that the direct interrogatories as submitted afforded nothing on which to base meaningful cross interrogatories. The taking of the depositions was obviously for the purpose of discovering matters thr fight lead to the disclosure of admissible evidence as provided by Rule 186a, Texas Rules of Civil Procedure. In this connection relators raise the objection that the medical records should not be produced, examined and copied because they may be in memorandum form and subject to interpretation or explanation. We think this objection is not valid because if any interpretation or explanation is needed this may be given in further pretrial procedure or upon the trial on the merits.

In their third point relators say that this procedure would work a greater hardship upon the witnesses than parties to a lawsuit are required to endure for the reason that they are not accorded the protection afforded by Rule 167. In this connection they cite our decision in Crane v. Tunks, Tex., 328 S.W.2d 434, where we held that in a discovery proceeding the trial court had the duty to examine the documents in question so as to ascertain what parts are material and relevant to the main cause and to prevent the adversary from having access to information of a private nature that is not relevant or material to any issue in the case.

In the Crane case the adverse party had sought under Rule 737, Texas Rules of Civil Procedure, to compel the production for his examination of Mrs. Crane’s income tax records for the years 1939 to date. It was shown that these returns contained information of a purely private nature. We held that to require the delivery of these documents over to Mrs. Crane’s adversary would be an unreasonable invasion of her right of privacy, and that it was incumbent upon the court to exclude those matters which were irrelevant and yet afford to the adversary all information that might be relevant and material to his cause of action

The relator, Neville, makes the point that the procedure followed here compels the inspection and copying of these medical records before he or his attorney has had an opportunity to examine them and determine what, if anything, is not material or is privileged. We think this contention is rather superficial since Neville’s attorney has also been engaged to represent the doctor witnesses, and surely neither Ne-ville nor his attorney are taking the position here that the doctors would refuse them the privilege of an examination of these records if requested.

Relators further contend that written reports and communications made subsequent to the injury and passing between Neville and the doctors are privileged and are protected from disclosure under Rules 186a and 167. If any of relators’ records are privileged it is only because of a privilege established by the proviso in Rules 167 and 186a. The records were not privileged at common law and have not been made so in this state by statute. .See Texas Law of Evidence, McCormick and Ray, 2nd Ed., § 491; Steagald v. State, 22 Tex.App. 464, 3 S.W. 771; Consolidated Underwriters vs. Foxworth, Tex.Civ.App., 196 S.W.2d 87, no writ history; Caddo Grocery & Ice Co. v. Carpenter, Tex.Civ.App., 285 S.W.2d 470, no writ history. But, in any event, relators are not in position to raise in this court the question of privilege under Rules 167 and 186a.

In attempting to raise the question of privilege here, as in their attempt to raise a question of harassment, relators misconceive the nature of this proceeding and the limitations which are imposed by it, and misconceive the extent of the respective areas in which this Court and trial courts operate. Before this Court may issue a writ of mandamus to compel the trial court to vacate its order it must appear that the trial court’s order is void. The trial court’s order in this case is valid on its face. It is a rather broad order, to be true, but breadth alone does not render it void. But relators say that it is void as representing an abuse of discretion if it requires that they produce for copying records which have not been shown by respondents to be relevant and material or which are privileged under the proviso of Rules 167 and 186a. The difficulty is that Rule 186b imposes the duty on relators first to present these matters to the trial judge by motion. Until that is done, this Court cannot know whether relators have any medical records concerning Neville which are irrelevant or immaterial in his present suit, nor can it know whether they have any records which are privileged under Rules 167 and 186a.

The trial court did not abuse its discretion by entering the broad order it did enter. When the interrogatories and the subpoenas duces tecum were served on relators, Rule 186b required that they file a motion with the trial court if they needed protection against disclosure -of matters which, under law or the Rules of Civil Procedure, should “not be inquired into” or would result in “undue annoyance, embarrassment, oppression, or expense”. They did not do so. Instead, they simply refused to comply. Thereupon, the defendants filed their motion. Relators had an opportunity at that hearing to show and contend that there were privileged written statements of communications among their records. Apparently they made no such showing. There is nothing in the Rules of Civil Procedure which would prevent their making the showing, on motion, even at this late hour. In the absence of such a showing, relators have not established that the order entered by the trial court represents an abuse of discretion in any respect.

Rule 186b provides a specific procedure by which parties and witnesses may seek from the trial court the very type of relief which relators seek from this Court. Until they have exhausted that procedure and can show that the trial court has abused its discretion in denying them specific relief to which the record shows they are entitled, they can make no showing here of a clear legal right to have the trial court’s order declared invalid.

The writ of mandamus is denied.


author: GRIFFIN, Justice.

text:
    OLD COLONY INSURANCE COMPANY, Petitioner, v. CITY OF QUITMAN, Respondent.
    No. A-8414.
    Supreme Court of Texas.
    Dec. 13, 1961.
    Rehearing Denied Jan. 17, 1962.
    Malone, Seay & Gwinn, Dallas, for petitioner.
    W. D. Brown, Quitman, Fulton, Hancock & McClain, Gilmer, for respondent.
   GRIFFIN, Justice.

The respondent, City of Quitman, hereinafter called “City”, brought this suit in the District Court of Wood County, Texas, against Johnny Folmar Drilling Company, Inc., and petitioner, Old Colony Insurance Company, as defendants. The City alleged that it entered into a contract with the drilling company to drill and equip a water well for a sum of money and that the insurance company was surety on the drilling company’s performance bond given to the City. City further alleged that drilling company was to drill a test well to a depth of 400 feet, or the Carrizo Sand; that drilling company was to have a test made of the water in this test well in accordance with the instructions and under the supervision of the City’s engineer, and to inform the City’s engineer of the results of that test; that if the test made showed the water had an iron content of not more than .3 parts of iron to 1,000,000 parts of water, then the engineer would give the drilling company an order authorizing the drilling and completion of the water well to be used by the City. It was further alleged that the drilling company guaranteed and warranted that the completed well would produce water of no greater iron content than that produced by the test well. City alleged that the analysis report of the water from the test well furnished to them by the drilling company showed water within the permissible iron content; that acting upon such report, its engineer ordered the drilling company to proceed with the drilling of the City’s well; that upon completion of the City’s well, the drilling company pumped the large well and it produced the' number of gallons per minute as required by the contract; and drilling company represented the iron content of the water was the same as that taken from the test well. Acting on such belief, and without demanding a test of the water in the completed well as the contract required, the City engineer gave a completion certificate to the drilling company and the City paid the drilling company the balance of $7,151.04 due under the contract for a total of $25,-' 243.35, being the contract price. The City alleged that the water from the City’s well had a much higher iron content than the water in the test well and could not be used in its mains for domestic use, and as a result the City sought recovery from the drilling company and the insurance company, as surety, for the full amount paid.

The insurance company and drilling company each filed a separate answer denying liability on various grounds and each adopted in full the answer of its co-defendant. Depositions were taken of Johnny Folmar, president and active manager of the drilling company, of the City’s engineer, the City’s secretary, mayor, water superintendent and others.

After answers were filed and depositions taken the City filed a motion for summary judgment supported by an affidavit of the. City Secretary.

The insurance company filed a sworn reply to the City’s motion for summary judgment and attached thereto an- affidavit from one purporting to be an experienced water engineer. The insurance company also filed a supplemental reply to the City’s motion for summary judgment. Insurance company also adopted in full the drilling' company’s reply to the motion for summary judgment.

The drilling company also filed a sworn answer to the City’s motion for summary judgment and pointed out what it considered issues of fact. Attached to its answer was an affidavit of Johnny Folmar.

All parties appeared before the trial court on October 23, 1959; and after considering all of the pleadings filed, together with depositions and affidavits, the trial court held there were no genuine fact issues as to the liability of the drilling company and its surety insurance company, and entered an interlocutory summary judgment in favor of the City against the drilling company and the insurance company that the latter two were liable to the City for its damages suffered. The question of the amount of damages was left for a trial on the merits. At this trial, before the Court and without a jury, on May 19,1960, the court made the summary judgment on liability final, and gave the City judgment against the drilling company and the insurance company for $25,243.35 with interest thereon at 6% from date of entry, August 13, 1960.

On appeal by the drilling company and the insurance company the Court of Civil Appeals reformed the trial court’s judgment so as to give the insurance company a judgment over against the drilling company, but otherwise affirmed. Johnny Folmar Drilling Company v. City of Quitman, 345 S.W.2d 439. The insurance company filed an application for writ of error, but tbe drilling company did not appeal from the judgment of the Court of Civil Appeals.

Complaint is also made that the Court of Civil Appeals erred in affirming the trial court’s action in granting the summary judgment for City. For the reasons hereinafter set out, we hold the granting of the summary judgment was error.

About July 1 the drilling company finished installing the pump and other equipment the contract required and the City engineer, without having been furnished a test of the water from the completed well as required by the contract, issued the necessary completion certificate upon which the City, on July 17, 1957, paid the drilling company the balance of $7,151.04 due on the contract price.

Due to inability to secure certain needed electrical equipment and to construct certain necessary facilities, the City did not pump the well until about November 10, 1957, some five months after Johnny Fol-mar had test pumped the well and made his iron content tests.

By its fourth point, insurance company makes the contention that it was released from liability because the City paid out the final $7,051.04 due the drilling company before a sample of the water from the completed well had been analyzed and the water found acceptable.

In the contract, the drilling company guaranteed a chemical analysis of water equal to that of a sample taken from the test well. The contract provided that the drilling company “shall collect a one gallon sample of water from the finished well and submit same to the Laboratories of the Texas State Health Department, Austin, Texas, for a complete chemical analysis,” and that drilling company would furnish the City five certified copies of the chemical analysis. Upon completion of the test pumping of the City’s well about June 2nd, and after the water had cleared, the drilling company did collect a gallon of water from the well to be tested as provided by contract. This sample was given to the City Secretary on June 4, 1957, and he undertook to pack it and mail it to the State Health Department at Austin for a chemical analysis. The drilling company paid the postage on the shipment. At the time the City engineer issued his final completion certificate and authorized the final payment (about July 5), he had received no chemical analysis of the water from the completed well. On July 17, 1957, when final payment was made to the drilling company by the City, no report from the State Health Department had been received, nor had any inquiry been made of the Health Department about the sample. Nothing was done by the City to secure a chemical analysis, nor was any demand made on the drilling company for a chemical analysis of the water from the well, until the water was turned into the City, mains during November of 1957 and complaints were made. At this time the City, did take a sample and submit it to the State Health Department. This analysis showed an iron content of the water greatly in excess of the permissible limits.

Under the provisions of the contract, the drilling company had not completed its contract with the City and was not entitled to payment until it had furnished the City with a chemical analysis of the water from the completed well, and that analysis showed an iron content not in excess of that in the water from the test well. This the drilling company did not do. Knowing of this failure the City engineer certified and the City paid the drilling company in full for the completed well.

As said in Bullard v. Norton, 107 Tex. 571, 182 S.W. 668, 671 (1916):

“It is well settled that sureties are only bound by the precise terms of the contract whose performance they secure, and that any material alterations in the terms of the contract without their consent will release them from liability. * * * ”

The above case also holds that the surety is not obligated to make inquiry or to keep watch over the parties to see that no changes are made. Also see: Ryan v. Morton, 65 Tex. 258-262, (1886); Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061, 106 S.W. 876, 22 L.R.A., N.S., 364 (1907); Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S.W. 621, (1919); Standard Acc. Ins. Co. v. Knox, 144 Tex. 296, 184 S.W.2d 612(3), (1944) ; Williams v. Baldwin, Comm.App. 1921, 228 S.W. 554; Wright v. A. G. McAdams Lbr. Co., Comm.App., 1921, 234 S.W. 878; Mingus v. Employers’ Liability Assur. Co., Comm.App., 1933, 65 S.W.2d 292; Larkin v. Pruett Lumber Co., Tex.Civ.App., 1919, 209 S.W. 443, no writ history; Porter v. Hope, Tex.Civ.App., 1926, 279 S.W. 535, writ refused; Aetna Casualty & Surety Co. v. Robertson, Tex.Civ.App., 1928, 3 S.W.2d 895(4), no writ history; Annotations in 12 A.L.R. 382, 127 A.L.R. 10, 77 A.L.R. 222; 43 Am.Jur. 912, § 170; 50 Am.Jur. 932, § 41, et seq.; Id. p. 937 § 48, et seq.

The City cites the case of Mercantile Trust Co. v. Hensey, 205 U.S. 298, 27 S.Ct. 535, 51 L.Ed. 811, 10 Ann.Cas. 572, (1907), as supporting its position that it is entitled to recover its damages for failure of the drilling company to bring in a well with iron content of water same as that in the test well. The point in the Hensey case was that the final certificate of the architect on which payment was made to the contractor did not preclude the filing of suit for damages for failure of workmanship or materials. It had nothing to do with changes in the contract between owner and contractor.

City also cites United States v. Walsh, CCA 2d Cir., 115 F. 697, (1902). That case involved a suit between the United States, as owner, and Walsh, as contractor, and the sureties on his performance bond for damages resulting from faulty construction. Walsh claimed that by accepting the work with knowledge of the defects the- United States could not sue for damages. The trial judge agreed with this view and directed a verdict for the defendant. The appellate court reversed for a new trial, holding that where the final test of the completed structure was made under conditions which did not permit those making the tests to discover the structural departures from the specifications, the government was not chargeable with the notice of such defects. The court held there were facts which would warrant a jury in so holding; therefore, the instructed verdict was improper.

In our case there are no facts which would excuse the City’s making final payment when it was well known to the engineer and City secretary that no chemical analysis of the water from the completed well had been made. This is a classic example of the reason for the rule that sureties are released when there is a material alteration in, and deviation from, the terms of the contract without their consent and to their prejudice. Here, for example, from the standpoint of the surety, there is no way of knowing the chemical content of the water in the finished well at the time it was accepted by respondent, and whether or not that which intervened in the succeeding months before City turned the water into its mains affected the chemical content of the water. It is apparent that had the water been tested at the time the well was finished and before acceptance by City there could have been one of two results, either of which would have obviated the question of City looking to petitioner under the performance bond: the water at that time might have equaled the test hole water analysis; or, if not, the contractor might at that time have been able to find water, or to treat the water, so as to meet the contract requirements. Had the test been made and the water found to be of too high chemical content, and which situation could not be corrected by the contractor, the City would not have made the final payment. Respondent, by its acts, in not requiring compliance with the contract, prevented the happening of either of these possibilities and thereby prejudiced a right of petitioner as surety going to the whole contract. The situation is therefore not one where the contract deviations failed to prejudice or damage the surety but is one where there is injury to the surety as a matter of law going to the whole contract ■obligation.

To hold the insurance company liable in spite of these departures from the terms of the contract and bond, the City (owner) relies on the following provisions of the contract:

“Neither the Certificate of acceptance nor the final payment, nor any provision in the Contract Documents, shall relieve the Contractor of the obligation for fulfillment of any warranty which may be required in the Special Conditions of the Specifications.”
“Preliminary approval. The engineer shall not have the power to waive the obligations of this contract for the furnishing by the contractor of good material, and of his performing good work as herein described, and in full accordance with the plans and specifications.”

The argument of City is that in all events the contractor was under obligation to complete and deliver a well with water corresponding in chemical analysis to the test well, from which the contractor was not relieved by the acceptance and final payment, or by any act of the engineer acting for City and that this is likewise determinative of the obligation of petitioner as surety on the performance bond.

It is at once manifest that the adoption of this line of reasoning would abrogate altogether the rights of petitioner as a surety in the respects previously discussed, and would subject the petitioner to surety liability regardless of any and all contract deviations and alterations. There is a difference between binding the surety to a guaranty of performance without exception where the other party for whom the work is being done adheres to the contract, and where, as here, it is sought to hold the surety regardless of substantial deviations from the contract by the party for whom the work is being performed. The cases cited by City recognize that contract provisions such as those under review entitled the owner to hold the contractor for defective work or improper materials even though accepted by the architect or engineer; these cases do not, however, consider contract deviations of the nature of the case at bar and do not support the proposition that a surety remains bound notwithstanding such contract deviations and alterations.

The obvious purposes of the contract provisions are that the contractor shall not escape liability to the owner for defective work or improper materials which may come to light subsequent to acceptance and final payment; and, for the same reason, that’ preliminary approval of the engineer shall not have the effect of releasing the contractor from the obligations of furnishing good materials, performing good work and complying with the plans and specifications.

The City further seeks to hold insurance company surety by virtue of the following provision found in the performance bond signed by the surety:

“Provided Further that no final settlement between the Owner and the Contractor shall abridge the right of any beneficiary hereunder whose claim may be unsatisfied, but the certificate of the Engineer that any progress payment or final payment is due the Contractor or his assigns shall, when accepted and acted upon in good faith by the Owner, be conclusive upon the Surety and its successors and assigns.” (Emphasis added.)

We notice that this provision discusses the rights of the “beneficiaries hereunder” (being those subcontractors, workmen, laborers, mechanics, and furnishers of material as set out by class in an earlier portion of the bond) and is clearly for their protection. The first clause so shows and is not capable of any other reasonable construction. This provision makes certain that the beneficiaries will get their money so long as any beneficiary shall have an unsatisfied claim. This is true regardless of the fact that the owner may have paid out to the contractor the full contract price. The rest of the paragraph, beginning with the “but”, sets out the liability to the beneficiaries only as between the owner and the surety. What this last provision says is that if the owner — in good faith and upon the certificate of the engineer that any progress or final payment is due the contractor — pays in accordance with such engineer’s certificate, then the owner is released from further payments but the surety is conclusively bound to those beneficiaries holding unsatisfied claims. This is consistent with the right of the owner to have the contract fulfilled at a cost not exceeding the contract price. If there are excess costs they shall fall upon the surety. This is the obligation the surety contracted to discharge.

Here again this provision in no manner attempts to set aside any obligation of the owner upon the contract either with the contractor or the surety, nor is anything said about binding the surety to the owner. The provision merely says:

1. No settlement will abridge the right of an unpaid beneficiary to recover his unpaid claim.
2. The owner is not liable to the beneficiary if he has paid in good faith.
3. However, the surety remains liable to the beneficiaries on their claims.

The drilling company not having appealed from the Court of Civil Appeals’ affirmance of the trial court’s judgment in favor of the City against the drilling company, that part of the Court of Civil Appeals’ judgment must be affirmed. There having been no motion for summary judgment by the contractor or insurance company, the cause must be remanded to the trial court for further proceedings consistent with this opinion.


author: PER CURIAM.

text:
    E. J. LUND, Petitioner, v. STATE of Texas, Respondent.
    No. A-8607.
    Supreme Court of Texas.
    Jan. 3, 1962.

      Alfred M. Scott, Austin, for petitioner.
    Will Wilson, Atty. Gen., Robert L. Burns, Houston, for respondent.
   PER CURIAM.

Petitioner was appellant in the Court of Civil Appeals. His appeal was dismissed by that court because of his failure timely to file a motion for new trial. 348 S.W.2d 247. In his petition for writ of error he asserts that the judgment of the trial court is void and that the entry of a void judgment is fundamental error which may be raised on appeal without the necessity of complying with the applicable Rules of Civil Procedure for the filing of a motion for new trial. We do not agree.

This case was tried to a jury and no exception to the necessity for the timely filing of a motion for new trial is applicable. When a number of the provisions contained in Rule 71a of the pre-1941 rules relating to practice in the district and county courts were written into Rule 324 of the Texas Rules of Procedure, the reference to fundamental error as an exceptional situation not requiring a motion for new trial was eliminated. See 126 Tex. vii — 1936; 136 Tex. 538, 1941, Vernon’s Annotated Texas Rules, Part 2, p. 450, wherein the provisions of Rule 71a (now superseded) are set out.

Because of the failure to file a timely motion for new trial, the appeal failed and the Court of Civil Appeals was without jurisdiction to determine whether or not the trial court’s judgment is void. Rules 5 and 324. A. F. Jones & Sons v. Republic Supply Company, 151 Tex. 90, 246 S.W.2d 853.

The motion for rehearing of Application for Writ of Error is overruled..


author: STEAKLEY, Justice.

text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. John C. DYCUS, Respondent.
    No. A-8534.
    Supreme Court of Texas.
    Dec. 6, 1961.
    Rehearing Denied Jan. 17, 1962.

      Thompson, Knight, Wright & Simmons, Dallas. Timothy E. Kelley and David S. Kidder, Dallas, for petitioner, with firm.
    John H. Holloway,-Houston, for respondent.
   STEAKLEY, Justice.

This is a Workmen’s Compensation case with a judgment for the injured employee. Both the compensation carrier and the claimant appealed to the Court of Civil Appeals without a-statement of facts pursuant to Rule 307, Texas Rules of Civil Procedure. The Court of Civil Appeals in an opinion ordered not published held that the filing of a statement of facts is necessary to a decision, overruled all points of error of both parties, and affirmed the judgment of the trial court.

Petitioner here is the compensation carrier urging two points of error: that the Court of Civil Appeals erred in holding that a statement of facts was necessary to a determination-of its one point of error in the Court of Civil Appeals; and that “The trial court erred in computing the recovery to which respondent was entitled based upon the answers of the jury to special issues.” We sustain both points.

Respondent submitted two crosspoints of error in the Court of Civil Appeals, but did not file application for writ of error. His points in the Court of Civil Appeals complained of the refusal of the trial court to declare a mistrial because of certain argument by petitioner, and of the charge of the court in certain respects not involved here.

Petitioner’s point of error in the Court of Civil Appeals, and here, is, in effect, that the trial court erred in not computing the award to respondent pursuant to subdivision (1) of Section 1 of Article 8309, Vernon’s Ann. Civ.St. The case was submitted in terms of subdivision (1) of Section 1 of Article 8309 prior to the 1959 amendment (Acts 1959, 56th Leg., R.S., Ch. 355, p. 799) since the injury occurred prior to the effective date of the amendment; however, the computation problem is the same since under Subdivision (1) of Section 1, Article 8309, prior to the amendment average annual wages consisted of 300 times the average daily wage and, under Subdivision (5) of Section 1, average weekly wages are “one-fifty-second part of the average annual wages.” See Texas Employers’ Insurance Ass’n v. Clack (Comm.App.), 134 Tex. 151, 132 S.W.2d 399.

As pertinent here, the jury found that respondent suffered partial incapacity for 28 weeks; that he had worked in the employment in which he was working at the time of the injury “substantially the whole of the year” immediately before the injury, the court having charged the jury that “substantially the whole of the year means 300 days or substantially near to 300 days”; that the average daily wage earned by respondent “during the days when so employed for the whole of the year” was “$18.00 per day”; and that his average weekly wage earning capacity during his partial incapacity was $99.00 per week.

The trial court submitted issues under subdivisions (1), (2) and (3) of Section 1 of Article 8309, but the finding of the jury was under subdivision (1), i. e., that respondent “was working at the time of the injury * * *, whether for the same employer or not, substantially the whole of the year * * * immediately before the date of said [his] injury.” As previously noted, the trial court charged the jury that “The term ‘substantially the whole of the year,’ as used in this charge, means 300 days or substantially near to 300 days.” Respondent pointed out in his brief in the Court of Civil Appeals that he “had objected to the charge of the court * * * which submitted to the jury appellee’s wage earnings under all subdivisions under Art. 8309”; however, he did not carry this specific objection into his Motion to Disregard the Jury Findings and for Judgment Non Obstante Veredicto, nor did he urge this as a point of error in the Court of Civil Appeals. The charge and submission to the jury in such respects, and the finding of the jury rendering subdivision (1) applicable in determining the average weekly wages of respondent, are therefore unchallenged by respondent in this appeal, and must stand.

The trial court, however, entered judgment as follows:

“Based on the jury verdict, the Court further finds that the plaintiff’s earning capacity prior to his injuries was $18.-00 per day, or $126.00 per week, and the jury further found that the plaintiff was temporarily partially incapacitated for 28 weeks beginning August 2, 1959 and that during said period of temporary incapacity the plaintiff had an earning capacity of $99.00 per week, being a weekly loss of earning capacity in the sum of $27.00 per week, 60% of said amount being $16.20 per week for a total of 28 weeks, being the sum of $453.60.”

This was error since computation of the award pursuant to subdivision (1) of Section 1 of Article 8309 requires the jury finding of average daily wage of $18.00 to be multiplied by 300 and divided by 52, with the resulting figure of $103.84 constituting the average weekly wage of respondent before his injury. The average weekly wage earning capacity of respondent after the injury having been found by the jury to be $99.00, under Section 11 of Article 8306 the loss of earning capacity was $4.84 weekly, 60 per cent of which is $2.90. Respondent should have been awarded $2.90 per week for the 28 weeks found by the jury to have been the period of partial incapacity, with a resulting award of $81.20.

The judgment of the Court of Civil Appeals is reversed and the judgment of the district court is reformed to award respondent the sum of $81.20 for the period of his temporary partial incapacity, and such judgment as reformed is affrmed.


author: ARCHER, Chief Justice.

text:
    Jack WADE, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 10848.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1961.

      Alio B. Crow, Jr., Austin, for appellant.
    Ed Gossett, Whitney R. Harris, Joe L. Randle, Dallas, Clark, Mathews, Thomas, Harris & Denius, James H. Keahey, Conrad P. Werkenthin, Austin, for appellee.
   ARCHER, Chief Justice.

This suit was brought by appellant against appellee seeking damages for loss of business and expenses alleged to have been caused by the omission of appellant’s name from the “Yellow Pages” of appel-lee’s December 1958 Austin Telephone Directory.

Trial was begun with a jury and at the end of appellant’s evidence, the Court on appellee’s motion, withdrew the case and entered judgment for appellee. It is from this judgment that the appeal is taken.

Appellant in his pleading relied, as a third party beneficiary, upon a written contract for directory advertising dated August 27, 1958, providing for the listing of appellant’s name with Louis H. Owen’s number GR 7-1019 under the heading of “Attorneys” in the “Yellow Pages” in the December 1958 directory, and alleged an oral contract which he had with A. F. Sturrock, on August 28, 1958, contending that under these contracts appellee agreed to carry appellant’s listing, that appellee breached the contracts by omitting his name and telephone number from the directory and that the breach caused loss of business from his law practice in the sum of $7,600.-00 and certain expenses in an amount of $2,300.00. Appellant’s office and home telephone numbers were listed with his name in the white pages of the directory.

Appellee does not deny that appellant’s name was not listed in the classified section of the December 1958 Austin Telephone Directory, but does contend that a directed verdict was properly granted at the close of appellant’s evidence because appellant failed to prove any damages; that the limitation of liability clause precludes recovery under the written contract as a matter of law, and that appellant failed to prove any oral contract with appellee under which he may recover damages.

Appellant sought recovery for (1) $500.-00 for loss of time and inconvenience, (2) $1,800.00 for damages for having obligated himself to share office rent, expenses and purchase law books in reliance upon being listed in the “yellow pages”, and (3) $5,-000.00 for loss of law business during the year 1959 and $2,600.00 for future loss of business. Appellant did not produce any evidence in support of his claim for loss of time. Upon being questioned on how he arrived at a figure of $500.00 appellant answered that he did not recall, just guessed at it, he imagined.

There was no evidence in support of the claim for $1,800.00 for office rent, expenses and law books, appellant testifying that he could not tell of any expense that he incurred as a result of being left out of the yellow pages, and on being questioned as to why he moved out of the office he replied that law practice wasn’t too profitable and he needed to cut down on expenses and moved to a smaller office.

Appellant’s claim was for damages for loss of business from his law practice, claim for lost profits under the law of damages, and sought $5,000.00 for loss of business in the year 1959 and $2,600.00 for future loss of business.

Appellant did not meet the test in proving damages. The following rules apply to the proof of damages in a suit for loss of profits resulting from breach of contract:

First, plaintiff must prove that he actually did lose some business as a result of the alleged breach of contract.
Second, plaintiff must show that this loss of business resulted in a loss in his net profits for it is only loss of profits for which the law allows recovery.
Third, plaintiff must establish this loss of net profits with a reasonable degree of certainty for recovery may not be had where proof of lost profits is uncertain or speculative, especially where the claim is based upon alleged breach of an advertising contract.

The testimony relied on to establish his loss was that during the entire year of 1958 he collected a total of $790.00 in legal fees and that his income from the practice of law during the year 1959 was in gross $3,122.49.

Appellant called several witnesses, none of whom supported appellant’s claim for damages, and all of whom testified that when they sought to contact appellant they did so, with or without regard to the listing, or lack of listing in the yellow pages.

The burden was upon appellant to allege and prove the loss of profits and that such loss resulted from the alleged breach of contract by appellee and that such loss of profits must be established with a reasonable degree of certainty and cannot be left to speculation. Augustine v. Southern Bell Telephone & Telegraph Company, Fla., 91 So.2d 320; 17 Tex.Jur.2d, Damages, Sec. 229, p. 290; Whiteside v. Trentman, 141 Tex. 46, 170 S.W.2d 195; Mitchell v. Southwestern Bell Telephone Company (St. Louis Ct. of App., Mo.), 298 S.W.2d 520.

There was no proof of loss of any particular piece of business. Appellant had not been in the practice of law but for a year or two and was new to the practice and could not establish to any degree of certainty, his loss, which the law demands, but such claim for loss as offered was wholly speculative. Southwestern Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097.

We believe that the motion for directed verdict was properly granted, because there was no issue before the jury on damages supported by evidence. The basis for an instructed verdict is summarized in McDonald, Tex.Civ.Practice, Vol. 3, p. 1031; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1; Webb v. Karsten, Tex.Civ.App., 308 S.W.2d 114, no writ history.

Mr. Owens testified that he had agreed to pay $1.00 per month for the listing under the contract for Mr. Wade’s listing but that he had not made such payments.

Appellant was not a party to the contract, he adopted it by bringing suit thereon and introducing it in evidence and had to accept the contract as it was made. Western Union Telegraph Co. v. Douglass, 104 Tex. 66, 133 S.W. 877; Purcell v. Metropolitan Casualty Insurance Co. of New York, Tex.Civ.App., 260 S.W.2d 134, no writ history.

The appellant contends that the contract for listing was an oral one had with A. F. Sturrock the day after the date of the written contract was executed; that he had heard Mr. Sturrock was a representative of the Telephone Company and that such agreement was had for a listing in the yellow pages for $1.00 per month; that nothing was had in writing but was strictly a conversation between Mr. Sturrock and the appellant. Such an oral conversation having been had on the day following the written contract confirmed the order which Owen had already given and was not sufficiently definite to support the cause of action. Universal Credit Co. v. Cole, Tex.Civ.App., 146 S.W.2d 222, no writ history; National Cash Register Co. v. Wichita Frozen Food Lockers, 172 S.W.2d 781, Tex.Civ.App., affirmed 142 Tex. 109, 176 S.W.2d 161.

The contract of listing was introduced in evidence by appellant and he is precluded by the limitation of liability clause of the contract, which is as follows:

“4. The applicant agrees that the telephone company shall not be liable for errors or omissions in directory advertising beyond the amount paid for the item or items omitted, or in which errors occur, for the issue life of the directory involved.”

Limitation of liability clauses of this type have been upheld in a number of cases. Russell v. Southwestern Bell Telephone Co., 130 F.Supp. 130 (E.D.Tex.1955); Faber v. Southwestern Bell Telephone Co., 155 F.Supp. 162 (S.D.Tex.1957).

We are conscious of the rule that in an instructed verdict case that the presumptions are in favor of the losing party and every intendment reasonably deducible from the evidence must be indulged in favor of such party and against the instruction. As we have stated, appellant in his testimony did not raise a fact issue to go to a jury, but is so meager that reasonable men could not differ as to the conclusion that the proposition or theory of recovery is not established.

The judgment of the Trial Court is affirmed.

Affirmed.


author: YOUNG, Justice.

text:
    Edwin DeWayne BIRDWELL et al., Appellants, v. Sammie Rue ASHCRAFT, Appellee.
    No. 15926.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 1, 1961.

      Leland Johnson and Burt Barr, Dallas, for appellants.
    Warren Berzett, Dallas, for appellee.
   YOUNG, Justice.

This is a child custody case, initiated by application for writ of habeas corpus, filed by the mother Sammie Rue Ashcraft (formerly Birdwell) and joined by her present husband Rayburn Ashcraft against De-Wayne Birdwell and parents, Mr. & Mrs. Edwin Birdwell, alleging that said respondents are illegally withholding the person of above minor child, seeking a return of said Annie Laurie Birdwell to its mother, the relator, pursuant to a previous decree of divorce rendered March 15, 1960 and styled Sammie Rue Birdwell vs. Edwin DeWayne Birdwell.

The habeas corpus proceeding was filed August 18, 1960 and heard to the merits before the trial court on November 9, over some 195 pages of testimony; with the result that the writ was granted, the child awarded to its mother, the relator, and all relief prayed for by respondents denied from which this appeal has been duly prosecuted.

All respondents answered by allegations that since the original award of custody in the March 1960 divorce suit, there had developed a change of conditions whereby the mother Sammie Rue Ashcraft (formerly Birdwell) had abandoned said child and voluntarily placed it in the care, custody and control of respondents, even before the decree of divorce; the child at that time being of neglected and dependent status, having no one to properly care for it except respondents, the father and his own parents; said parties having since retained the child’s custody and care to the present time; and praying for judgment for permanent custody, first to the father DeWayne Birdwell and alternatively to the grandparents, Mr. & Mrs. Edwin Birdwell.

Respondent, DeWayne Birdwell, answering separately, reiterated that, owing to changed conditions since award of custody to relator Mrs. Ashchaft, the care, custody and control should be changed from its mother to this defendant. He further alleged that he had not lived with relator since November 4, 1958, but that notwithstanding this, his former wife was pregnant at date of divorce by Rayburn Ashcraft, marrying him on March 18, 1960 with another child born some two months thereafter which is not this defendant’s child; that the relator, mother of Annie Laurie Birdwell, did not take this child with her at time of the March 1960 divorce, has attempted to visit it only once in August 1960, “has sent the child no birthday presents, has not contributed one cent to the support or sent it any clothes of any kind nor provided it with any medical care.” That instead, this defendant has “cared for said child, has furnished it food, clothing, home, love and affection, that the natural mother does not care for said child, that she turned it over to her mother for care, that the maternal grandmother turned it over to defendant and his mother and they have cared for said child since said time”; likewise praying for final custody.

Points of appeal complain of court error “in sustaining the writ and turning the minor child over to its mother for by her own conduct she had forfeited any rights she might have had to said child”. Also of error because the court judgment is not supported by substantial evidence.

The child in question was some 16 months old at time of trial; the earlier divorce decree of March 1960 was obtained on waiver of defendant DeWayne Birdwell and without his appearance. Relator, the mother, candidly admitted to a prenuptial affair with her present husband; that she, while enceinte was without employment, funds or place to rear Annie Laurie; turning said infant over to her own mother temporarily, who becoming sick, turned her over to respondents on a like basis; that at time of trial the Ashcrafts were living at 1202 Strickland Street, Dallas, with adequate home facilities; respondents refusing to return the child to her. Relator is now employed with Dallas Community Chest, her husband at Dallas Osteopathic Hospital; Annie Laurie being cared for during the day by the maternal grandmother, Mrs. Eitel who lives less than two blocks away.

On the other hand, respondents, the Bird-wells, parents and son DeWayne, have a comfortable home on Glenfield Street, West Oak Cliff, all employed and leaving the child with a baby sitter when necessary, and all contributing to its support and proper raising. It is admitted that said child developed a vitamin deficiency while with its mother, appellants claiming that same was due to lack of needed medical care. It is plain from the record that this child will be properly cared for and reared in either environment.

Appellants recognize the settled rule that a child’s mother should be given preference in award of custody if she be a fit person, especially so of a girl of tender years, but arguing that such right has been forfeited by relator’s earlier indiscretions, apparent neglect and voluntary relinquishment of custody. However, these considerations should not be allowed to weigh too heavily against relator in view of her present fitness and strong desire to regain possession of her child and demonstrated ability to properly care for it now and in the foreseeable future.

The March decree of divorce at time of its entry was res adjudicata of the child’s best interest and of the custody. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790, and any change of conditions since that time has worked in favor of relator rather than respondents. Obviously the right of custody by the father DeWayne Birdwell is subordinate to hers, he being only a resident of the home rented by his parents; and likewise, the rights of the latter respondents as a matter of law are seen to be inferior to that of relator with respect to custody of her infant child. The trial court’s rendition to that effect involved no abuse of discretion, it having support in sufficient evidence of probative force. Says Taylor v. Meek, supra, “The question of whether a trial court has abused its discretion is one of law requiring an appraisal of the facts. ‘The trial court must look, in the light of all the circumstances, to the best interest of the child. With the opportunity to observe the appearance and demeanor of the witnesses, to weigh their testimony, and evaluate the virtues of parties, no one is in a position to do this better than the trial court.’ Valentine v. Valentine, Tex.Civ.App., 1947, 203 S.W.2d 693, 696.”

The judgment of the trial court is accordingly affirmed.