text:
    Margaret K. HOVEY, Respondent, v. Charles E. HOVEY, Appellant.
    No. 50134.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.

      James H. Wollbrinck, St. Louis, for appellant.
    John P. Sullivan, Clayton, for respondent.
   COIL, Commissioner.

Margaret Hovey was granted a divorce from Charles Hovey on October 27, 1960. Charles counterclaimed to establish a resulting trust in real estate at 17 Washington Terrace in St. Louis, the title to which was in plaintiff’s name. Subsequent to the divorce decree and in May 1960, the counterclaim was tried in equity resulting in a judgment for the plaintiff based on a finding that defendant had made a gift of the property to her at the time it was purchased in February 1953.

Defendant has appealed and contends that the trial chancellor erred in the admission and exclusion of evidence and in failing to find that defendant had established that plaintiff held title to the Washington Terrace property in trust for him.

Plaintiff and defendant were married in August 1945. Defendant was in the insurance business in various capacities and plaintiff worked throughout the period of their marriage for different automobile dealers as office manager or secretary (which type of work she had done prior to her marriage and since 1936). Shortly after their marriage, late in 1945 a house in Richmond Heights was purchased, the title to which was in both their names, both executing the necessary mortgages and notes. Defendant testified that he purchased the Richmond Heights property, made the payments thereon by checks on his separate bank account; while plaintiff testified that she made at least one payment on the mortgage and had purchased all the furnishings for the house, having expended therefor $4,500 to $5,000. In any event, and here pertinent, the Richmond Heights house was sold in January 1953 for $10,500 and they received a check payable to both in the amount of $6,100. That money was used in the purchase of the 15-room Washington Terrace house in February 1953. The purchase price was $27,000 including the carpets and draperies then in the premises.

Defendant testified that he alone executed the contract of purchase and that his wife was not present but that the seller’s warranty deed at his direction conveyed the title to his wife only. As we understand, there was $7,000 cash paid and a $15,000 first mortgage and a $5,000 second mortgage securing promissory notes in those amounts which were signed by both Mr. and Mrs. Hovey. In March 1953 Mr. Hovey executed an assignment to Mrs. Hovey of certain renewal commissions due him each month from Massachusetts Indemnity and Life Insurance Company. He testified such was done to insure the funds which would ultimately pay the mortgages. Mrs. Hovey testified the assignment was made to insure the gift of the house to her. In any event, at the same time the renewals were assigned, she executed a release of the assignment which her husband held. The renewal commissions received by Mrs. Hovey by virtue of the assignments from 1953 through January 1960 totaled $17,751.04. According to Mrs. Hovey, and not seriously disputed by her husband, the renewal commissions received from 1956 through January 1960 were assigned to the Bureau of Internal Revenue because of a tax lien which had been filed against them on account of unpaid income taxes due by virtue of joint returns which they had filed. Thus, as we see it, about $9,800 of the $17,751 was not applied to the mortgage payments. In addition to the mortgage payments made from renewal commissions defendant testified that he paid an amount of $1,375; that he had paid the insurance premiums for fire and extended coverage; and it was conceded that he had paid some $5,800 for permanent improvements on the property during the period of the marriage. Defendant’s conclusion was that he had paid $14,610.64 against the mortgage indebtedness on the property.

Mrs. Hovey testified that from 1945 through 1960 she spent $20,490.30 of her money to run both the Richmond Heights and Washington Terrace houses, to pay on the mortgages and to purchase furniture and furnishings; and that such sum did not include any money that came from the assignment of the renewal commissions. In addition she paid for her own personal needs during tin entire period of the marriage.

Mrs. Hovey testified that her husband had ability as an insurance man but had failed to apply himself; that he was a heavy drinker during practically all the years of the marriage; that she felt insecure by reason thereof; and that by July 1960 things had reached the point where they agreed there was no reason to continue their marriage and they separated, she remaining in the Washington Terrace home.

Defendant’s income varied, sometimes greatly, from year to year. In 1949 it was $5,274; in 1950, $5,000; in 1951, $3,770; in 1952, $13,096; in 1953, $20,561; in 1954, $12,522; in 1955, $2,779; in 1956, $4,000; in 1957, $4,000; in 1958, $5,700; and in 1959, $6,800. In 1954 an insurance agency partnership was dissolved and defendant received $40,000 as a result. Mrs. Hovey testified that the money lasted two years, that he practically retired, that he spent all the money, that she received no part of it, and that she worked every day.

During the period of their marriage Mrs. Hovey’s income remained fairly constant at about $4,000 a year. She testified that she had paid $3,500 on the indebtedness due on the Washington Terrace property up to the time of the divorce and from the divorce to the date of trial about $4,620. Since the divorce Mr. Hovey had made one payment of $200.

Defendant testified that he did not discuss with his wife the possibility of placing the house in her name at the time he was attempting to arrange financing for it; that he did not intend a gift to his wife at the time the title was placed in her name; that he did not make a gift to her of the renewal commissions; and he offered to testify that the reason for placing the title in her name was because he was a member of a partnership and, as we understand, if title to the Washington Terrace property was in his name, that property would be an asset liable for partnership debts; that Mrs. Hovey knew the reason for placing the title in her name and acquiesced in that arrangement and understood that he was not making a gift of the house to her; that he had suggested after they moved into the house that the title be placed in both their names but she had refused and he did not insist upon it.

Mrs. Hovey testified that her husband made a gift of the Washington Terrace house to her and that she understood that he had assigned his renewal commissions to her so that the gift of the house would be assured, even though she executed at the same time a release of that assignment which he held. She testified that Mr. Hovey told her that she should have the property because she had worked hard and "tried to put things together, and he wanted to assure me, since he offered no other security, that at least I would always have a piece of property in my name,” and it was understood that he was to have no interest in the property.

There was evidence that in February 1953 defendant had a $74,000 term insurance policy on his life in which his wife was beneficiary. Further evidence showed, however, that the term insurance policies, which perhaps totaled $84,000 or $85,000 (two policies) had short and sporadic lives; one policy was issued in October 1951 and expired in March 1952, was reinstated and expired in February 1954; the other policy was issued in July 1953, lapsed a month later, was reinstated in February 1954 and lapsed in August 1954.

A witness testified that he was a resident in Washington Terrace from 1947 to approximately 1961 and from 1952 to 1960 was a trustee for the residents’ organization; that in 1958 or 1959 there was a meeting in his home of the Washington Terrace property owners, pertaining to the modernizing of restrictions in the Terrace; that it was necessary that the document setting forth the modifications of existing restrictions be signed by the property owners; that Mr. Hovey hesitated, and then said to his wife, “You go ahead and sign, I don’t have any interest in this property.” Mr. Hovey did sign, however, because the witness advised him that counsel had said it was necessary that both husband and wife sign the instrument.

Defendant contends that the trial court erred in excluding certain testimony and in rejecting certain offers of proof. We have examined all of the instances to which defendant refers in his brief and find either that the court did not exclude the answer made by defendant, or did not prevent or prohibit defendant’s counsel from pursuing the subject of the inquiries in question, or did not adversely rule upon offers of proof. Be that as it may, however, we have in summarizing the evidence above and shall in reaching our conclusion herein, consider the evidence which defendant claims the court excluded and the testimony, and the inferences apparently intended to be drawn therefrom, which defendant proffered by way of offers of proof.

Defendant also contends the trial chancellor erred in admitting evidence pertaining to “work habits, personal habits and financial circumstances that existed after the instant that the deed to the real estate was taken, and the Court erred in basing its finding of fact and decree upon said evidence, * * * ” because the intention at the time the title was acquired determines whether there was a resulting trust, and thus evidence as to what happened later was immaterial and irrelevant.

It is true, of course, that a resulting trust arises, if at all, by reason of facts which exist at the time title is acquired and does not arise by reason of subsequent occurrences. It is also true, however, that evidence of the parties’ conduct with reference to the property subsequent to the time of the acquisition of title may he admissible to prove that there was no intent to make a gift to the transferee. Hampton v. Niehaus, Mo., 329 S.W.2d 794, 799, 800. It follows that evidence by plaintiff in this case tending to explain defendant’s conduct with reference to the property subsequent to the acquisition of title was properly admissible.

It is the law that where a husband pays the purchase price and causes title to property to be transferred to his wife, a rebuttable presumption arises that the husband intended to make a gift to or a provision for the benefit of his wife and the burden to prove that he did not so intend was and is upon him. The evidence adduced to rebut the presumption of gift must be strong enough to convince the trial chancellor in the first instance and this court on a de novo review that the husband did not intend that his wife have the beneficial interest in the property despite the fact that he caused legal title to be placed in her name. Hampton v. Niehaus, supra, 329 S.W.2d 799 [1-5] and cases there cited.

We review this equity case de novo and reach our own conclusions as to the weight of the evidence, taking into account the trial chancellor’s opportunity to judge the credibility of the witnesses who testified before him. So reviewing the relevant evidence in the light of the aforestated applicable principles, and assuming arguendo that defendant paid the entire purchase price (despite evidence to the contrary), we are of the opinion that he failed to sustain his burden to prove that at the time he caused the property to be placed in his wife’s name, he did not intend to make a gift of that property to her.

The only evidence which tends to refute that conclusion is defendant’s conclusory and self-serving statements that he did not intend to make a gift of the house to his wife but intended that she hold it in trust for him; that Mrs. Hovey acquiesced in that arrangement and understood that the reason was to exempt the house from liability for some possible, and apparently entirely speculative, partnership obligation.

Opposed to that evidence is the testimony of Mrs. Hovey to the effect that her husband did make a gift of the house to her at the time he directed the title be placed in her name only, and that he did so, as he said, in order that she might have the security of owning a home, inasmuch as he had been unable to offer her other financial security and in recognition of the fact that she had worked during the period of their marriage trying “to put things together.”

The facts that Mr. Hovey made payments on the mortgage (the $187 monthly payments included taxes) through the assignment of renewal commissions and otherwise, paid fire insurance premiums and paid for some permanent improvements, do not rebut the presumption of gift under the circumstances of this case. We have in mind the husband and wife relationship, that Mr. Hovey continued to live in the house, and the fact that the property was heavily mortgaged and in need of repairs and improvements. That he performed the above-noted subsequent acts with respect to the property under the stated circumstances is not inconsistent with the theory that he made a gift of the property to his wife. Hampton v. Niehaus, supra, 329 S.W.2d 800, 801 [7, 8],

This case, like most cases involving the question whether a divorced husband has established a purchase money resulting trust in property he caused to be placed in his wife’s name, depends essentially upon the credibility of witnesses and, in this case, the credibility of the testimony of Mr. and Mrs. Hovey. We defer to the trial chancellor’s finding in that respect, as evidenced by the decree adjudging that defendant had made a gift of the property to the plaintiff, and a consideration of all the relevant evidence convinces us that defendant failed to sustain his burden to prove that he did not intend to make a gift of the house to his wife.

While, as we have heretofore noted, defendant’s counterclaim alleged that plaintiff 'held the property in trust for defendant and prayed for a decree declaring that defendant was the sole owner of the property and while appellant contends in his brief that “the presumption of a gift was rebutted” and that a “resulting trust was established * * * by clear, cogent and convincing evidence,” defendant seems also to suggest that he wants this court, by entering its own finding and decree to “do equity under the law.” While appellant does not specifically seek other relief on any definite theory, such as a claim that a resulting trust arose by reason of a part payment of the purchase price by him, the cases which ■appellant cites (without any demonstration of their application to the present facts) suggest that defendant may mean that he , should be granted some relief under all the evidence. For example, his cited case of Taylor v. Taylor, Mo., 270 S.W.2d 806, was a suit to establish ownership of a half interest in realty, title to which stood in the wife’s name only; and another cited case, Fisher v. Miceli, Mo., 291 S.W.2d 845, was an action for a judgment to declare a former husband the owner of a one-half interest in certain real estate, title to which had been conveyed to his former wife during their marriage.

It seems clear, however, that our holding heretofore that defendant failed to sustain his burden to rebut the presumption that he made a gift of the Washington Terrace property to his wife, precludes any relief to him based upon the proposition that he has or' should be declared to have any interest in the property.

Although the trial chancellor’s decree adjudged that plaintiff held title to the furniture and furnishings in the Washington Terrace house free and clear of any right, title, or claim of defendant, the parties here agree that since the divorce they hold title to the furnishings and furniture which were in the Washington Terrace property at the time of the separation as tenants in common. The judgment below should be modified to give effect to that agreement.

The case is remanded with directions to modify the judgment as herein directed, and the judgment as so modified is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM:

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

All concur except HENLEY, J., not sitting.


source: Caselaw Access Project

author: BARRETT, Commissioner. PER CURIAM:

license: Public Domain

text:
    Margaret L. PHOENIX and Thomas F. Gordon, Plaintiffs-Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, and Melvin Krah, Executor of the Estate of Charles O. Fleck, deceased, Defendants-Respondents.
    No. 50225.
    Supreme Court of Missouri, Division No. 2.
    May 11, 1964.
    Motion for Rebearing or to Transfer to Court En Banc Denied June 8, 1964.

      August W. Jaudes, St. Louis, for appellants.
    Frank Bild, St. Louis, for respondent Melvin Krah, executor of the estate of Charles O. Fleck, deceased.
    Fordyce, Mayne, Hartman, Renard & Stribling, William W. Sleater, Jr., St. Louis, for respondent Metropolitan Life Ins. Co.
   BARRETT, Commissioner.

Charles O. Fleck was the insured in three policies of life insurance in the Metropolitan Life Insurance Company in the principal sum of $22,000, and his wife Linnie B. Fleck was the named beneficiary. Mrs. Fleck died on January 14, 1962, and on May 29, 1962, Mr. Fleck died without changing or designating another named beneficiary. Upon proof of death and surrender of tile policies the company paid Melvin Krah, the executor of Fleck’s estate, the proceeds of the policies. Whereupon the plaintiffs, Margaret L. Phoenix and Thomas F. Gordon, children of Mrs. Fleck by a former marriage, instituted this-action against the executor and the Metropolitan claiming that as Mrs. Fleck’s only heirs they were entitled to the proceeds of the policies. The parties all moved for summary judgment, the court sustained the company’s and the executor’s motions and accordingly entered judgment and the plaintiffs have appealed.

The plaintiffs-appellants now claim that “there were material fact questions;” namely, 1. “To determine the intent of the insured” and 2. “To determine whether the insured attempted to change the named beneficiary after her death,” and that therefore the court erred in entering summary judgment. There is no disposition to alter the general rule: “The fact that both parties have moved for summary judgment does not establish that there is no issue of fact. A party may concede that there is no issue if his legal theory is accepted and yet maintain that there is a genuine dispute as to material facts if his opponent’s theory is adopted.” 3 Barron & Holtzoff, Federal Practice & Procedure, Sec. 1239, p. 176. The difficulty with the appellants’ position and the reason the general rule is not applicable is that this court of necessity must take the record as the parties have made it. Pursuant to the rules (Sup.Ct. Rule 82.12, V.A.M.R.), the appellants and the respondents have approved and agreed to a transcript and it nowhere appears in that record that there are material questions of fact as to the insured’s intention or that there was ever an attempt on his part to change the beneficiary, and the belated assertions in the appellants’ brief may not be employed to supply the omission. In their petition the appellants asserted the facts to be as outlined in the first paragraph of this opinion, and the basis of their claim then and now is that by reason of the statutes, V.A.M.S. §§ 376.540, 376.560, the proceeds of the policies should have been paid to them. In their motions for summary judgment the appellants asserted that, reading the statutes and the policies, they were entitled as a matter of law to recover. There were no other pleadings and no other relevant facts asserted in the pleadings, there were no depositions or affidavits and thus upon this record there were no other facts or issues, hence it does not appear that there are any disputed or controverted material facts within the meaning of the summary judgment rule. Sup.Ct. Rule 74.04; Engl v. Aetna Life Insurance Co., 2 Cir., 139 F.2d 469, 472.

This is not an instance of a wife insuring the life of her husband and paying the premiums out of her separate funds, thereby securing an absolute or vested right in the proceeds upon his death. V.A.M.S. § 376.530. Sovereign Camp, Woodmen of the World v. Downing, Mo.App., 201 S.W. 951. Neither is it an instance of a wife by contract securing a vested interest in a policy on the life of her husband so that even after divorce and despite his right to change beneficiaries she would be entitled to the proceeds as against his administrator. Thomson v. Thomson, 8 Cir., 156 F.2d 581; Annotations 52 A.L.R. 386; 175 A.L.R. 1220. And, as indicated, this is not an instance in which the insured had attempted to change beneficiaries after his relationship to the originally named beneficiary had changed. Orthwein v. Germania Life Ins. Co., 261 Mo. 650, 170 S.W. 885; Persons v. Prudential Ins. Co. of America, Mo., 233 S.W.2d 729; Prudential Ins. Co. of America v. Gatewood, Mo., 317 S.W.2d 382.

It is said that the insured intended that Linnie B. Fleck “or her heirs” should receive the proceeds of his life insurance. It is urged that his intention in this regard was manifest from two things; one, the applications for the policies named Linnie as beneficiary and did not designate a contingent beneficiary, and, two, that after Linnie’s death he “made no effort to change the beneficiary as required by statute.” V.A.M.S. § 376.560. This contention overlooks the force of the fact that in both the applications and the policies the insured, after designating Linnie as beneficiary, reserved the right without her consent to change the beneficiary. Furthermore, the intent argument overlooks the fact that when issued the policies provided that “(i)n case of the death of any Beneficiary or contingent Beneficiary the interest of such Beneficiary shall revert to the Insured unless otherwise provided in his Policy or by written notice filed at the Home Office of the Company.” In view of these factors and in these circumstances it may not be said that Mr. Fleck intended that Linnie’s “heirs” should be entitled to the proceeds of his life insurance or that in the policies he expressed or made manifest any such intention. As a matter of fact, in the trial of the cause the appellants’ reliance was not upon some unexpressed intent, as stated their basic claim was and is that under the applicable statutes they as heirs of the designated beneficiary wife who predeceased her husband are entitled to the proceeds of the policies.

In 1948, when the policies were issued, and now there were two statutes: V.A.M.S. § 376.540 provided “In case of the death of the wife before the decease of the husband, the amount of the insurance shall be payable to her heirs, for their use, and to their guardian, if under age, unless otherwise provided for and stipulated in the policy.” V.A.M.S. § 376.560 provided, in part, that “[a]ny policy of insurance heretofore or hereafter made by any insurance company on the life of any person, expressed to be for the benefit of the wife of the insured, shall inure to her separate benefit, independently of the creditors, executors and administrators of the husband; provided, however, that in the event of the death or divorcement of the wife before the decease of the husband, he shall have the right to designate another beneficiary * * *. But when the premiums paid in any year out of the funds or property of the husband shall exceed the sum of five hundred dollars, such exemptions from such claims shall not apply to so much of said premiums so paid as shall be in excess of five hundred dollars, but such excess shall inure to the benefit of his creditors.” The appellants say that in case of a conflict in statutes and policy provisions directing the disposition of life insurance the statutes “over-ride(s) the policy.” They urge that these statutes in “plain words, with plain meaning” provide that “heirs of a designated beneficiary are entitled to the proceeds of insurance when the beneficiary is the wife of the insured and she dies prior to the insured and insured has not changed beneficiary during his lifetime.”

It is entirely possible that one or two -cases involving these and similar statutes are in conflict in principle with the majority of cases, for example Smith v. Grand Lodge A. O. U. W., 124 Mo.App. 181, 101 S.W. 662, and Postal Life & Casualty Insurance Co. v. Tillman, Mo.App., 287 S.W.2d 121. It is not proposed here, however, to attempt a reconciliation of the cases other than to say that some of the cases involved other types of life insurance or other types of statutes, as Kindleberger v. Lincoln Nat. Bk. of Washington, 81 U.S.App.D.C. 101, 155 F.2d 281. The Kindleberger case is annotated in 167 A.L.R. 1021 “Construction and application of statute respecting proceeds of life insurance in event of death of named beneficiary before insured.” In connection with the appellants’ argument and construction of the statutes it should be noted that § 376.540 provides, in the event of death of the wife before her husband, that the insurance “shall be payable to her heirs” but subject to this provision "unless otherwise provided for and stipulated in the policy.” And while applicable statutes may be a part of the policies, as stated fifty years ago, “(t)he design of this statute (§ 376.560) was to affect the quality of the estate given to the wife by virtue of her being a beneficiary in the policy, and to make whatever should come to her thereunder a part of her separate estate and exempt from the claims of the creditors of her deceased husband. It was not the design of the statute to disable the husband, in the making of his contract, from entering into an agreement which would render the interest of his wife, as beneficiary, wholly contingent upon the non-exercise of such powers as were reserved to the insured under the conventional and statutory terms of the present policy. The statute did not intend, nor provide, nor could it be rationally construed, that the husband should not have full liberty to contract with reference to the interest which he might desire to give to his wife as beneficiary in a policy upon his life. It only provides that whatever contract he does make — whether giving her an absolute or a conditional interest — shall result in making that interest, if it ever accrues to the wife, a part of her separate estate.” McKinney v. Fidelity Mutual Life Ins. Co, 270 Mo. 305, 318, 193 S.W. 564, 567; Haven v. Home Insurance Co., 149 Mo.App. 291, 130 S.W. 73.

These distinctions aside however, the policies and the case for decision then is in this posture: Mrs. Fleck who had no absolute or vested interest in her husband’s life insurance predeceased him. Mr. Fleck had not designated another beneficiary and the policy provided, in the event the beneficiary predeceased him, that “the interest of such Beneficiary shall revert to the Insured.” As stated, in both the applications and the policies Mr. Fleck reserved the right to change the beneficiary and, no other factor intervening, Mrs. Fleck did not acquire an absolute or vested right in the proceeds. 29A Am.Jur. (Insurance) § 1640, p. 721. In the circumstances of this record and these policies “the proceeds of insurance pass to the insured’s heirs or estate to the exclusion of the heirs or estate of the deceased beneficiary.” 4 Couch, Insurance 2d, § 27.131, p. 673 ; 2 Appleman, Insurance Law, § 1122, p. 561. There is no conflict here in the statutes and the policy provisions, one statute affects the quality of the beneficiary’s estate and the other, § 376.540, governs and the proceeds are payable to the wife’s heirs “unless otherwise provided for and stipulated in the policy.” The policies all “otherwise provided” that if the beneficiary predeceased the insured her interest “reverted to the Insured” and therefore the statutes are inapplicable. 29A Am.Jur. § 1649, p. 731; Annotation 167 A.L.R. 1. c. 1023; Walker v. Peters, 139 Mo.App. 681, 124 S.W. 35. A case quite similar in its facts is Schlereth v. Neely, Mo.App, 285 S.W. 168, and other persuasively comparable cases are Northeast Mutual Ins. Ass’n v. Ford, 241 Mo.App. 40, 229 S.W.2d 705; Stephens v. Stephens, Mo.App, 264 S.W.2d 925; Field v. John Hancock Mut. Life Ins. Co, Mo.App., 142 S.W.2d 816. For these indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: WOLFE, Judge. PER CURIAM:

text:
    BLACKBURN-ENS., INC., Doing Business as North County Realty Company, (Plaintiff) Appellant, v. Raymond ROBERTS and Lillie Roberts, (Defendants) Respondents.
    No. 31565.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 22, 1964.

      Ray Carleno, Carleno & Nick, Ferguson, for appellant.
    Alvin H. Juergensmeyer and Darryl L. Hicks, Warrenton, for respondents.
   WOLFE, Judge.

This is an action whereby the plaintiff seeks a judgment for a commission alleged to be due under an agency contract with the defendants for the sale of real estate. There was a verdict and judgment for the defendants, and-the plaintiff prosecutes this appeal.

The evidence presented reveals the facts to be that the corporate plaintiff was doing business as the North County Realty Company. Its president was a Mr. Blackburn. The defendants owned the house located on Lots 1 and 2 of Honey Locust Acres, in St. Louis County. The house and the lots fronted on Old Florissant Road. The defendants also owned Lot No. 3 in Honey Locust Acres, which was directly to the rear of and adjoining Lots 1 and 2. The defendants were husband and wife, and while the property was in the name of Lillie Roberts, the wife, they considered it as jointly owned. They desired to sell the house and Lots 1 and 2. They wanted a quick sale as they were in arrears in taxes and were unable to meet the mortgage payments.

They planned to sell Lots 1 and 2, upon which the house was built, and retain Lot 3 for the purpose of building- another house. Lot 3 had about $600 to $800 worth of cut building stone upon it. This was left over from another house that Roberts had built. In October of 1960, the defendants had their own “For Sale” sign up, and a man named Stanley K. White, seeing the sign, had stopped to look at the house. But the defendants were not there. Mr. White looked in the garage, and in doing so let the defendants’ dog out. He telephoned defendant Roberts and apologized for having let the dog out, and told him the purpose of his visit to the house.

On November 11, 1960, the defendants entered into a contract with the North County Realty Company, giving that company the exclusive right, for sixty days, to sell the house and Lots 1 and 2 for $27,500. The contract is printed on a card. On one side of the card is a description of the property to be sold, and on the other side is the agency agreement and the signatures. Lots 1 and 2 are set out in the description. In the top corner, apart from the place for the description of the property, there is written “xtra lot 100 x 200”. The defendant Roberts testified that this was not on the card at the time it was signed, and was added without his knowledge.

The plaintiff put up its sign on the property and advertised it. One of the plaintiff’s salesmen showed several people through the house, and among them was the Mr. White with whom defendant Roberts had talked by phone some time prior to the date of the listing agreement. The salesman introduced Mr. White to Mr. Roberts. Mr. White had seen the plaintiff’s sign on the property and arranged to inspect it. He was not interested in buying, as he thought that the price asked was too high.

No sale was made by the plaintiff, and in the latter half of January, the defendant Roberts took down the plaintiff’s For Sale sign and put back his own, which read, “For Sale by Owner.” Mr. Blackburn came by and, according to the plaintiff, they agreed that the listing contract was terminated. He said that he told Blackburn that he would still pay him a commission if Blackburn would sell the property. Blackburn put his company’s sign in the back of his car and drove away with it.

Later, and around the first of February, Mr. White was driving by the property and saw defendant Roberts in the yard. Mr. White stopped to talk to Roberts, and asked him if the house was still for sale. Roberts told him at that time that there was a mortgage against the house which he could not meet, that he owed two years’ taxes, and that he was willing to sacrifice to make a sale. Roberts told White that he would include the third lot, which originally was not included in the deal, and he agreed to sell the three lots and the house for $27,000, which was $500 less than the amount originally asked for the two lots. The transaction was closed with White, through the Bank of Ferguson, on March 10, 1961, and the Roberts transferred to the Whites Lots 1, 2, and 3 for a total sum of $27,000. From this amount the mortgage and back taxes were paid off, leaving a net total to-defendants of $3,032.48.

Mr. Blackburn, the president of the corporate plaintiff, testified that the contract was not terminated at the time of the sale, and that it could only be terminated by sixty days’ notice in writing, and, as stated, he claims a commission of 6 percent upon the sale price of $27,000.

It is first contended by the appealing plaintiff that the court erred in refusing to direct a verdict for the plaintiff on plaintiff’s motion made at the close of its case and at the close of all of the evidence in the whole case. This point is predicated upon two-theories. One is that the contract was not terminated because it provided that “agency shall continue for two months from the date hereof, and thereafter until terminated by us upon and after sixty days’ notice.” The “us” referred to is of course the owners who signed the contract. This is no bar to the sellers and the agent agreeing to terminate the contract, and that is what happened according to the defendant’s testimony. It therefore follows that this clause of the contract afforded no reason for a directed verdict against the defendants.

The second point relied upon is that the contract provided that the agent was to receive a commission if a sale was made within sixty days after the term of the contract to any person procured by any one during the term of the contract. This clause is to protect the agent from a loss of his commission on a sale, if the sale under negotiation could not be terminated within the term of its agency, or if the seller, in order to defraud the agent of his commission, intentionally delays closing a sales agreement until the agency contract expires. It is, however, limited to a purchaser “procured” during the term of the agency. In discussing the meaning of the word “procure”, as used in these contracts, our Supreme Court stated in Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912, 1. c. pp. 913-914:

“Appellants lay great stress upon the word ‘produce’ as used in the letter from Thompson to respondent dated October 31, 1944, wherein it was stated the regular commission would be paid ‘in case you produce a purchaser.’ There is a shade of difference between ‘produce’ and ‘procure,’ but under facts similar to those now under consideration, where the sale was actually made, courts have rarely, if ever, recognized that difference. The general rule is that if a broker procure a purchaser who is ready, willing and able to buy on the seller’s terms, the broker is entitled to his commission whether or not the sale is consummated. Lane v. Cunningham, 171 Mo.App. 17, 153 S.W. 525. If a sale is not consummated, a broker, in order to earn a commissioh, must not only ‘procure’ a purchaser, but he must ‘produce’ him; that is, he must not only find one, but he must put him in touch with the seller.”

There was evidence from both the seller and the buyer in the case before us that the buyer was first attracted to the property and caused to look at it, prior to the agency contract, by the seller’s own sign. It is also true that the agent’s salesman showed White, the buyer, the house while the agency contract was in effect. It is not enough, however, that the agent’s act is simply one of a chain of causes producing the sale. Williams v. Mashburn, Mo. App., 37 S.W.2d 478; Mack v. Mohler, Mo.App., 52 S.W.2d 188. It appears that the word “procured” here has more the meaning of “found”, and the evidence was sufficient for a jury to conclude that the buyer was in this sense procured, not during the term of the contract, but prior thereto. As to who was the procuring cause is ordinarily a question for the jury, and the court did not err in submitting it to the jury. Barnum v. Hutchens Metal Products, Mo.Sup., 255 S.W.2d 807; Earls v. Alsup, 237 Mo.App. 819, 176 S.W.2d 830; Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453.

It is contended that the court erred in giving a verdict-directing instruction for the plaintiff, designated as Instruction No. 1. This instruction contained an alteration of an instruction offered by the plaintiff. With certain exceptions, not here present, the scope of our review is limited to the allegations of error contained in the motion for a new trial. Civil Rule 79.03, V.A.M.R.; In re Alexander’s Estate, Mo.Sup., 360 S.W.2d 92. The only error here alleged and preserved in the motion for a new trial, which is not covered by that which we have heretofore said, is that the court erred in not defining the word “procured.” If an explanation of the word was desired, the plaintiff should have requested an instruction defining or explaining it. In the absence of such a request, the court cannot be charged with error. Thurman v. St. Louis Public Service Company, Mo.Sup., 308 S.W.2d 680, 681, and cases cited therein. This contention must therefore be ruled against the appellant.

The next allegation of error goes to Instruction No. 2, and it is said to be erroneous because there was no evidence that the buyer was procured prior to the listing agreement. That which we have said in relation to the first point raised fully covers this allegation of error, and it, too, must be ruled against the appellant.

Further contention is made that the court erred in refusing the instruction designated as No. 3 A. This instruction directed a verdict for the plaintiff without regard to the time of the procurement, and the court properly rejected it.

Two other instructions were offered and refused. It is contended that the court erred in refusing them both. One, designated as No. 4, was not in fact an instruction, but a mere comment on some of the evidence. The other instruction, designated as No. 5, and refused, was in part a repetition of Instruction No. 1 which was given, and the court did not err in refusing both Instructions 4 and S.

The last point raised by the appellant relates to the jury panel. Counsel for the plaintiff, near the conclusion of the voir dire examination of the jurors, made a challenge for cause against some jurors on the panel who had been represented in the past by Mr. Alvin H. Juergensmeyer, who was counsel for the defendants. The examination disclosed that nine of the jurors had at some time employed him either for closing a real estate deal, examining abstracts of title, or filling out income tax returns. They said that they were satisfied with the services they had received, and would employ him again in the event the need arose. They were asked if the fact that they had employed Mr. Juergensmeyer would prevent them from returning a fair and impartial verdict, and to this question their response was negative.

The case was tried in Warren County, which has a population of less than 8,000 people. In a county of that size, it would probably be difficult to find a panel of jurors that did not contain a number of people who at one time or another had used the services of the few lawyers available in the county. The fact that some had at some time employed Mr. Juergensmeyer, in the absence of a showing that their relationship would in fact prejudice them, did not disqualify them as jurors. As early as 1877, in State v. Jones, 64 Mo. 391, the Missouri Supreme Court held that a father-in-law of the prosecutor in a criminal case was not rendered incompetent to serve as a juror by reason of the relationship. The Kansas City Court of Appeals, in Gardner v. Metropolitan Street Railway Co., 177 S.W. 737, reversed a trial court which had sustained a challenge for cause directed at jurors who knew counsel for the defendant. Again, in Plater v. Kansas City, 334 Mo. 842, 68 S.W.2d 800, it was held that the close association between a juror and one of the attorneys was not of itself a disqualification. We find this point also without merit.

The judgment is affirmed.

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

On Motion for Rehearing

PER CURIAM:

The appellant filed a motion for rehearing or, in the alternative, to transfer this cause to the Supreme Court It is pointed out that we did not specifically rule upon appellant’s assertion that the court erred in refusing to give an instruction offered by the plaintiff, which is as follows:

“The Court instructs the jury that under the law it is presumed where a real estate broker having an exclusive listing on real estate shows the property to one who later purchases said property, that the broker was the procuring cause, and the burden of proving that said purchaser was not procured by said broker is upon the defendants to show by a preponderance of the evidence.”

The court properly refused the instruction as the burden of proof was upon the plaintiff throughout the trial, and for the further reason that it is improper in a civil case to instruct on any presumption where there is evidence on the subject, and such instruction should not be given. Nuckols v. Andrews Investment Company, Mo.App., 364 S.W.2d 128, and cases therein cited.

Otherwise the points raised in the motion are but repetitious of those presented by brief and argument, which were passed upon. We find them also without merit.

The motion for rehearing and the alternative motion for transfer to the Supreme Court are overruled.

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


author: DOERNER, Commissioner. PER CURIAM:

text:
    Robert Earl HARRIS, a Minor, by Servisa Harris, His Natural Mother and Next Friend, Plaintiff-Respondent, v. Richard LANE, Defendant-Appellant.
    No. 31625.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 22, 1964.

      Moser, Marsalek, Carpenter, Cleary & Jaeckel, Burton H. Shostak, R. E. Keaney, St. Louis, for defendant-appellant.
    Gray & Jeans, James W. Jeans, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

On January 31, 1962, about 12:25 P.M., plaintiff, then seven years of age, was struck by defendant’s automobile as he attempted to cross Etzel Avenue near its intersection with Blackstonfe, in the City of St. Louis. In this subsequent suit, brought on his behalf by his mother and next friend, a trial by jury resulted in a verdict and judgment in favor of plaintiff for $4,000. Defendant’s timely appeal followed the overruling of its after-trial motions.

Plaintiff’s only evidence as to the manner in which the accident occurred consisted of excerpts read from the deposition of defendant. Defendant offered no evidence in his own behalf, and stood upon his motion for a directed verdict. As his initial point, defendant strongly contends that the court erred in overruling his motion because there was insufficient evidence to make a submissible case. Since plaintiff’s sole submission was on a failure to keep a careful and vigilant lookout, our inquiry as to the sufficiency of the evidence is limited to such actual submission. Evett v. Corbin, Mo., 305 S.W.2d 469; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91.

Emulating the example set by defendant’s counsel in his brief, we state in narrative form the excerpts read from defendant’s deposition, except where the questions and answers are of special significance. Such evidence was as follows:

My name is Richard Lane. I was involved in an accident on Wednesday, January 31, 1962, about 12:25 P.M. I was driving a ’58 Olds automobile. The weather conditions were good.
“Q. How wide is Etzel Avenue?
“A. Four lanes, two parking and two traveling lanes. It is a two-way street. I was headed eastwardly (on Etzel).
“Q. Did this accident occur near any intersection?
“A. Blackstone.”

Blackstone comes into Etzel from the north. It is not a through intersection. Blackstone, at its intersection with Etzel, is approximately the same width as Etzel. I was driving on the right side of the street. The left side of my car was approximately a foot from the center line as I approached the intersection. My car came in center line as I approached the intersection. My car came in contact with a young boy. I saw the boy before I struck him. He was in the street when I first saw him. He was south of the center line when I first saw him. He was directly in my path. The car I was driving was possibly four and a half, five feet, wide. It would be a fair statement to say that the boy was within five feet of the center line when I first saw him. He was approximately four feet in front of my car when I first saw him. The left front bumper of my car struck the lad. He was struck by the side of the bumper, right at the very corner of the automobile. It would be a fair statement to say that I just barely avoided hitting him, that I came within a very minute second and space of time and distance from hitting the boy. He was running at the time he was hit.

“Q. And did he run from the time you first saw him up until the time he was hit?
“A. Yes.
“Q. He didn’t stop or hesitate or anything ?
“A. No.”

My car was in excellent mechanical condition that day. The brakes were excellent.

“Q. Mr. Lane, I want to make sure that you understood this one question I previously put to you. Is it true that when you first saw the boy that he was only about four feet in front of your automobile; is that what you had said?
“A. Well, that is an approximation. That is approximately, yes.
“Q. I appreciate that we can’t always be too certain, but that is just about the distance that separates me from you here as we are talking. Four feet, that is about— less than even the length of this desk. That is your best judgment then; is that right?
“A. Yes. I was pretty close.”

Mrs. Servisa Harris, plaintiff’s mother, who was away at work at the time of the occurrence, testified that she was then living at 5700 Etzel Avenue, second floor east; that she lived on the south side of Etzel; and that her house faced north-wardly into Blackstone.

Recognizing the paucity of facts furnished by the foregoing evidence, and in answer to various deficiencies pointed out by defendant, plaintiff argues that he was also entitled to those inferences which would tend to prove defendant’s failure to keep a lookout and the causal connection between such failure and plaintiff’s injury. We agree, provided that the inferences may reasonably be drawn from the facts in evidence. State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97; Steele v. Woods, Mo., 327 S.W.2d 187; Hildreth v. Key, Mo.App., 341 S.W.2d 601. Thus we agree that it may be inferred that plaintiff was crossing from the south to the north side of Etzel — because when first seen by defendant, plaintiff was five feet from the ■center line, running northwardly, and continued in that direction until the collision occurred. We also agree that defendant’s car was moving at the time the contact occurred^ — because defendant implied that his ■automobile “struck” plaintiff. We further .agree that the speed at which plaintiff was running and that ,at which defendant’s car was traveling were approximately the same —because plaintiff was five feet south of the center line and four feet in front of defendant’s automobile when first seen, and was approximately one foot from the center line when struck by the car. Lastly, while there was no evidence as to either the speed •of plaintiff or that of defendant’s vehicle, we agree with plaintiff that it may reasonably be inferred that plaintiff, seven years of age, could run at a speed of ten miles an hour for a short distance. Vietmeier v. Voss, Mo., 246 S.W.2d 785; Edwards v. Dixon, Mo.App., 298 S.W.2d 466; and since they covered the same distance in the same period of time, that defendant’s automobile was likewise traveling at a speed of ten miles an hour.

However, having accompanied plaintiff as far as possible down his path of inferences, we come to a parting of the ways. Plaintiff’s argument proceeds on the assumption that plaintiff was five feet from the center line and fifteen feet from the south curb of Etzel when he was first seen by defendant. Based on that assumption, and on the fact that plaintiff almost escaped the collision, plaintiff contends that “ * * * the least evasive action on the part of the defendant would have been effective to have avoided the injury. * * * ” This by no means follows. In the first place, there is no evidence in the record to justify plaintiff’s assumption that Etzel was forty feet wide. All that appears in evidence is that it was four lanes wide, two parking lanes and two traveling lanes. Furthermore, whether defendant had sufficient time to have taken such evasive action as would have averted the accident would depend upon when he could first have seen plaintiff.

We reach, then, what plaintiff correctly calls “ * * * the most important question * * * ” in the case — when could defendant have first seen the plaintiff? The defendant, as the operator of a motor vehicle, was, of course, under a duty to maintain a lookout ahead and laterally. Evett v. Corbin, Mo., 305 S.W.2d 469. This included the duty to see an observable pedestrian even though he was on the shoulder of the highway. Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935. Because of the common knowledge that the acts of children of tender years are wholly unpredictable, our courts have said that greater precautions are necessary to fulfill the duty to children of tender years than to adults. Ozbun v. Vance, Mo., 323 S.W.2d 771; Fortner v. St. Louis Public Service Co., Mo., 244 S.W.2d 10. And to have failed to see what could have been seen by proper observation in the exercise of the highest degree of care would have been as much negligence as not to have looked at all. Wright v. Osborn, supra; Miller v. Williams, Mo., 76 S.W.2d 355. But the duty to see what could have been seen, had one looked, presupposes that the person or object was visible and in plain view. Obviously, one cannot be held negligent for failing to see that which, because of some obstruction to his view, one cannot see, or cannot see until it is too late to take effective evasive action. Levin v. Caldwell, Mo., 285 S.W.2d 655. When, therefore, the negligence charged is the defendant’s failure to maintain such a lookout as would have enabled him to have observed the plaintiff sooner than he did, it is incumbent upon the plaintiff to show that he was in a position where he could have been seen had the defendant looked. O’Neill v. Claypool, Mo., 341 S.W.2d 129; Hartlage v. Halloran, Mo.App., 331 S.W.2d 197. The mere happening of the accident, terrible though it may be, does not establish negligence on the part of a motorist, Joplin v. Franz, Mo.App., 240 S.W.2d 209, and the burden of proving the facts and circumstances necessary to establish the issue of negligence submitted to the jury is on the plaintiff. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316. Nor does the fact that plaintiff was but seven years old and defendant an adult shift the burden of proof from plaintiff to defendant. Vietmeier v. Voss, supra.

The weakness in plaintiff’s case is that there is no evidence tending to prove that plaintiff was in plain view as defendant approached the intersection, or that defendant could have seen him any appreciable length of time sooner than he did. Plaintiff cites Petty v. Henroid, Mo., 313 S.W.2d 688; Scaggs v. Uetrecht, Mo., 244 S.W.2d 17; Hildreth v. Key, Mo.App., 341 S.W.2d 601; and Edwards v. Dixon, Mo.App., 298 S.W.2d 466, in support of his argument that defendant was under a duty to discover plaintiff before plaintiff left the curb. But in each of those cases it was shown that the injured child was in plain view and could have been seen on the side of the road or street at an earlier time had defendant kept a proper lookout. Such evidence is totally lacking in the instant case. Plaintiff deprecates defendant’s suggestion of what plaintiff terms “ * * * the ubiquitous parked car * * and argues that an application of the appropriate rules of evidence eliminates that possibility. This, says plaintiff, because certain ordinances of the City of St. Louis prohibit the parking of cars on a cross-walk or within an intersection (here between the east and west crosswalks across Etzel) ; and because the law presumes compliance with existing regulations, and right and proper conduct. But the application of an equally appropriate rule requires us to reject this ingenious argument. The ordinances referred to by plaintiff were not introduced in evidence, and since 1848 it has been the rule in this state that courts cannot take judicial notice of city ordinances. Cox v. City of St. Louis, 11 Mo. 431; Peterson v. United Rys. Co. of St. Louis, 270 Mo. 67, 192 S.W. 938; City of St. Louis v. Capitol Vending Co., Mo.App., 374 S.W.2d 519. Furthermore, there was no evidence that the accident occurred on a cross-walk or even in the intersection; defendant’s testimony was that it was “near” Blackstone. And even if we assume that plaintiff was running on a cross-walk it may well have been that an automobile parked to the west of and immediately adjacent to the cross-walk might have blocked defendant’s view of plaintiff until he emerged from behind the car. We note, for example, that there is no evidence in the record as to plaintiff’s height, as in Wright v. Osborn, supra.

Absent evidence as to when and where defendant could have seen plaintiff, and where his automobile was at the time, the charge that defendant failed to keep a proper lookout rests on nothing more than surmise and conjecture. Hartlage v. Halloran, supra. We are of the opinion that the plaintiff did not make a submissible case and that the court therefore erred in overruling defendant’s motion for a directed verdict.

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

PER CURIAM:

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

Accordingly, judgment is reversed.

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

On Motion for Rehearing

PER CURIAM:

In his motion for a rehearing or, in the alternative, to transfer this cause to the Supreme Court, plaintiff complains that we overlooked certain evidence favorable to the plaintiff. We believe that in the opinion it was made abundantly clear that the accident involved an almost-escaping situation, but so that there may be no doubt regarding the facts we quote at length defendant’s testimony as read from his deposition:

“Q (By plaintiff’s counsel) What part of your car struck this lad?
“A The left front bumper.”
“And on page 11 at the bottom (reading):
“Q When you say he was struck with the left front bumper, the impact came from the front of your car, I assume; it was the front bumper? Some of these bumpers are wrap-around bumpers. Did you strike him with the front of your bumper ?
“A No, the side.
“Q Right at the very corner of the automobile ?
“A Yes, sir.
“Q With your hitting him at the very corner of the automobile and not proceeding on past him, would it be a fair statement to say that you just barely avoided hitting him; is that right, you came within a very minute second and space of time and distance' from hitting the boy?
“A Yes.
“Q Was he running at the time he was hit?
“A Yes.
“Q And did he run from the time you first saw him up until the time he was hit?
“A Yes.
“Q He didn't stop or hesitate or anything?
“A No.”

Plaintiff also takes exception to our statement that “there is no evidence in the record as to plaintiff’s height” (Emphasis ours.), and points to that part of the transcript showing that plaintiff stood by the jury rail and exhibited the injury to his lip and mouth. All that the transcript reveals is that there was a jury rail, and that plaintiff was tall enough to be seen over it. But the record does not indicate the height of the rail, nor the distance, great or small, which plaintiff rose above it. Are we to be expected to speculate therefrom that plaintiff was tall enough to be seen over the hood of a parked car — or truck ?

Lastly, plaintiff contends that we are compelled to take judicial notice that a four-lane residential street in the City of St. Louis is at least 36 feet wide. We note, in passing, that plaintiff has reduced the width from the 40 feet originally mentioned in his brief. To take judicial notice that the minimum width of such a street is 36 feet would be directly contrary to our personal knowledge of the many four-lane streets in residential areas of St. Louis which are narrower than the figure contended for by plaintiff.

The gist of plaintiff’s charge of negligence was the alleged failure of defendant to maintain such a lookout as would have enabled him to have observed plaintiff in time to have avoided the accident. The burden was on plaintiff to produce evidence that he was in a position to have been seen had the defendant looked. Absent such evidence we" cannot supply the deficiency by speculation, conjecture, or unwarranted judicial assumptions.

Plaintiff’s motion for a rehearing or, in the alternative, to transfer this cause to the Supreme Court, is overruled.

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


author: STEAKLEY, Justice. SMITH, Justice

text:
    CONTINENTAL CASUALTY COMPANY, Petitioner, v. John G. STREET, Jr., Respondent.
    No. A-9706.
    Supreme Court of Texas.
    March 11, 1964.
    Rehearing Denied June 3, 1964.
    Pepper, Markward & McGlinchey, Fort Worth, for petitioner.

      Stone, Parker, Snakard, Friedman & Brown, Lawton G. Gambill, with above firm, John W. Herrick, Fort Worth, for respondent.
   STEAKLEY, Justice.

Our former opinions, delivered December 11, 1963 are withdrawn. The following is the opinion of the Court.

The suit was by Respondent, John G. Street, Jr., against Continental Casualty Company, Defendant below and Petitioner here. It has had quite a history. See the opinions reported in Tex.Civ.App., 339 S.W.2d 680; Tex.Civ.App., 358 S.W.2d 746; and Tex., 364 S.W.2d 184. It reaches us on this occasion from a judgment of the Court of Civil Appeals, with one Justice filing a dissenting opinion, reversing the judgment of the trial court for Petitioner, and remanding the cause. Tex.Civ.App., 367 S.W.2d 894. We reverse the judgment of the Court of Civil Appeals, and affirm the judgment of the trial court.

The suit sought a recovery under the Surgical Expense portion of a Comprehensive Hospital, Nurse, Medical and Surgical Expense policy issued by Continental Casualty Company to Street. The basis of the suit was the performance upon Street by a legally qualified dental surgeon of a series of curettages whereby deposits on the teeth and portions of the periodontal tissue were removed. The treatment was for suppura-tive periodontitis.

The surgical expense section of the comprehensive policy is introduced by an opening paragraph which reads:

“When injury or sickness shall cause any member of the Family to undergo any operation named herein which is performed by a legally qualified physician or surgeon while this policy is in force as to such member, the Company will pay the actual expense incurred for such operation, including post operative care in the hospital, but not in excess of the amount set opposite the operation nor in excess of $500.00 for all operations performed as the result of any one accident or any one period of sickness.”

There follows a specific listing of 198 operations, together with the maximum amount of the actual expense incurred for each operation which the company will pay. The maximum amounts range from $5.00 for a pinch skin graft to $500.00 for a total removal of the stomach, or for the radical removal of both breasts, or for the removal of an intervertebral disc with spinal fusion. Dental surgery is not listed.

This schedule is followed by a concluding paragraph:

“The Company will pay, subject to the limit provided, for operations not named above amounts objectively determined on the basis of comparative severity with operations which are named, but not less than the minimum nor more than the maximum amounts provided for operations named.” (Emphasis added)

Upon the trial of the case, Street offered the testimony of the admittedly legally qualified dental surgeon who performed the series of curettages upon his teeth and gums. This witness sought to compare the dental surgery which he performed to a sinus operation, one of those listed in the surgical expense schedule of the policy. The Court of Civil Appeals found the testimony of this witness to be “that the maxillary sinus operation was the only one of the 198 in the policy schedule that had any comparability to the work he did on plaintiff.” 367 S.W.2d at page 897. Street offered no other testimony upon the question of the comparative severity of that which was performed upon his teeth and gums with any other of the operations listed in the policy.

As pertinent here, the case was submitted to the jury upon special issues inquiring if the acts performed upon the mouth of Street constituted operations, to which the jury answered in the affirmative; upon issues inquiring what amount of money would be comparable and reasonable for Continental Casualty to pay Street upon the basis of a comparison of the severity of the operations upon Street with those specifically listed in the insurance policy, which issues were not answered by the jury; and upon an issue inquiring if the operations performed upon Street were not of comparative severity with the sinus operation listed in the policy, to which the jury answered “They were not comparative.”

Judgment for Continental Casualty Company was entered by the trial court upon the verdict of the jury. Street did not except to the action of the court in receiving, accepting and filing the verdict. He had not previously objected to the issues submitted, or requested any other issues. He made no motion for a mistrial, or for judgment non obstante veredicto, or to disregard the jury findings.

We construe the policy in question as constituting an agreement on the part of Continental Casualty Company to pay the actual expense incurred for any operation, subject to the specified limitations. The maximum amounts of actual expenses which would be paid were predetermined in the policy for those operations specified; for those not specified the amounts were to be determined on the basis of comparative severity with the operations listed. The burden was upon Street to establish that the acts performed upon him constituted operations; that they were performed by a legally qualified physician or surgeon; and, finally, the amount he was entitled to be paid under the policy provisions.

As to the first, the jury found that the acts performed upon Street constituted operations. Cf. Century Indemnity Co. v. Carroll, 126 Tex. 214, 86 S.W.2d 1083. As to the second, we affirm the correctness of the holding of the Court of Civil Appeals in Street v. Continental Casualty Co., Tex.Civ.App., 339 S.W.2d 680 (in which wc dismissed the application for writ of error for want of jurisdiction). It is our opinion that a legally qualified doctor of dental surgery is a “legally qualified physician or surgeon” within the provisions of the insurance policy. The emphasis in the insurance contract is upon the legal qualification of the individual to perform the operation and not upon a particular field in the healing art. Article 4551a, Vernon’s Annotated Civil Statutes, expressly recognizes that a dental surgeon operates. The policy did not expressly exclude dental surgery, or operations performed by a dental surgeon, from its coverage. To effect this exclusion would require the addition of the qualifying words “in the field of medicine” following the phase “legally qualified physician or surgeon.” We made clear in Providence Washington Insurance Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, that a limitation of liability will not be added where none exists in the policy itself. Cf. Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762; Western Reserve Life Insurance Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554; State v. Beck, 21 R.I. 288, 43 A. 366, 45 L.R.A. 269.

But Street failed in the third requirement. There was no basis in the jury verdict for a recovery in his behalf. The jury found against him on the issue of comparative severity with the sinus operation, which was the only operation listed in the policy upon which Street offered evidence. The jury was unable to agree upon answers to the general series of issues inquiring as to the amount of money which would be comparable and reasonable for Street to be paid upon the basis of a comparison of the severity of the operations performed upon him with those listed in the policy. Street did not object to the acceptance of the'jury verdict as incomplete, and thus by timely objection afford the trial court the opportunity, before the jury was discharged, of correcting the error (if such it was) of accepting the verdict with the issues unanswered. Only Street could have benefitted from a reconsideration by the jury of the verdict as it was brought in. He was required to preserve any error there may have been on the part of the trial court in accepting the jury verdict with the particular issues unanswered. Lewis v. Texas Employers’ Insurance Ass’n, 151 Tex. 95, 246 S.W.2d 599. This he did not do. The trial court had no alternative under the jury verdict hut to render judgment for Petitioner, and Respondent waived any benefit he might have claimed under the unanswered issues, and any right he may have had to have them answered.

Respondent’s motion for rehearing is granted, and our judgment of December 11, 1963, is set aside. Judgment is now rendered reversing the judgment of the Court of Civil Appeals and affirming the judgment of the trial court.

ON MOTIONS FOR REHEARING

It is not necessary to decide if Special Issue No. 21 was an ultimate and controlling issue in this case, as insisted by Respondent and supporting amici. The parties consented to its submission as such. Respondent Street offered evidence to establish that the operations performed on his gums were of comparative severity to the sinus operation which was among the 198 operations listed in the policy. Accordingly, Issue 21 inquired of the jury as follows:

“Do you find from a preponderance of the evidence that objectively determined, on the basis of comparative severity, the operations, if any you have so found, performed by Dr. Treadwell as a dentist upon the mouth of plaintiff were not of comparative severity with, ‘Sinus Cutting into other than puncwtre, muffle’, as listed in the policy in question?”

As stated in our previous opinion, Respondent Street did not object to the issue and without doubt would have insisted on judgment in his favor had the issue been answered favorably to' him. But the point is that he tried his case, at least in part, upon the theory represented by Issue 21, and he was not entitled to a new trial upon the later claim that the issue was immaterial and not controlling. Cf. Allen v. American National Insurance Company, Tex., 380 S.W.2d 604.

The Motions for Rehearing of both Petitioner and Respondent are overruled.

SMITH, Justice

(dissenting).

I respectfully dissent. I agree with two of the principle holdings of the Court, but do not agree with the judgment that Street take nothing by his suit.

First, I agree that Street did establish that the acts performed upon him constituted “operations.” Second, I agree with the holding that a legally qualified doctor of dental surgery is a “legally qualified physician or surgeon” within the provisions of the insurance policy.

As the Court points out, the jury found in answer to Special Issue No. 21, that the operations performed by Dr. Treadwell were not of comparative severity with a sinus operation. It is true that the jury could not agree upon answers to Special Issues 4-8 which inquired as to the amount of money which would be comparable and reasonable for Street to be paid upon the basis of a comparison of the severity of the operations performed upon him with those listed in the policy. It is true that Street did not object to the acceptance of the jury verdict as incomplete. However, I do not agree that the foregoing proceedings in the trial court left the trial judge with “no alternative under the jury verdict but to render judgment for Petitioner (Continental Casualty) * *

The trial court rendered judgment for Continental Casualty upon the jury’s answer to Special Issue No. 21 that the operations performed upon Street were not of comparative severity with a particular sinus operation listed in the insurance policy. The Court of Civil Appeals sustained Street’s contention that Special Issue No. 21 was not a controlling issue, and therefore the jury’s answer thereto could not support a judgment for Continental Casualty. I fully agree that Special Issue No. 21 was not a controlling issue. The only basis for this court’s action in affirming the trial court’s judgment is apparently on either the theory that, inasmuch as the jury failed to answer Special Issues 4-8, Street did not carry the burden of proving the amount he was entitled to be paid under the policy provisions, or on the theory that Special Issue No. 21 and the answer thereto was controlling. The trial court’s judgment cannot be affirmed on either theory, nor can it be affirmed on the grounds stated in the Court’s opinion on rehearing.

The policy in question contains the following language:

“The Company will pay, subject to the limit provided, for operations not named above amounts objectively determined on the basis of comparative severity with operations which are named, but not less than the minimum nor more than the maximum amounts provided for operations named.” (Emphasis added.)

The operations performed on Street were not named in the policy list. Furthermore, the jury failed to answer that these operations were of comparative severity with operations which are named. However, Street did obtain a jury finding that he had “operations” performed upon him within the meaning of the policy. Referring again to the policy’s provisions, it states that an insured who has had an operation performed on himself is entitled to be paid “ * * * not less than the minimum * * * amounts provided for operations named.”

Inasmuch as the policy specifically provided that an insured cannot be paid less than the minimum amount for an operation, how could the trial court enter a judgment for Continental Casualty Company? Under my construction of the policy in question, Continental Casualty promised to pay Street a minimum amount ($5.00) for his operations even if he offered absolutely no testimony comparing the severity of his “unnamed” operations with any of those named.

Thus, even though the jury failed to answer Special Issues 4 — 8, and even though Street did not object to the acceptance of the jury verdict with the issues unanswered, there was still a basis in the jury verdict for a recovery in his behalf. Inasmuch as the jury found that the acts performed upon Street constituted operations, the specific terms of the policy entitled him to be paid “ * * * not less than the minimum * * * amounts provided for operations named.” Only by rewriting the terms of the insurance policy can this court hold that “the trial court had no alternative under the jury verdict but to render judgment1’ for Continental Casualty Company. (Emphasis added.)

I come now to discuss the phase of the case that is important. At page 650 of the original opinion, the Court states:

“The jury found against him on the issue (Special Issue 21) of comparative severity with the sinus operation * * =M>

And at page 651 the Court states:

“The trial court had no alternative under the jury verdict but to render judgment for Petitioner, [Continental] and Respondent [Street] waived any benefit he might have claimed under the unanswered issues, and any right he may have had to have them answered.”

Special Issue No. 21 and the answer thereto cannot afford a basis for a take-nothing judgment against Street. The Court did have an alternative. The Court could have entered a judgment, in spite of the finding, by basing its judgment on the express provision of the policy quoted above. Issue No. 21 cannot under any conceivable theory be controlling, chiefly because it does not inquire about any control-lng fact. The policy says to determine “amounts” (which is what issues 4 through 8 sought to determine, but were unanswered) ; it does not say that the policy holder must prove that his operation was “ * * * of substantially equal risk, involvement of time, expense and physical affect upon the human body [the definition of ‘comparative severity’ used in Issue 21] as one of the ‘named’ operations.”

This court is erroneously holding that if a policy holder has an unnamed operation he must prove that it is “ * * * of substantially equal risk, involvement of time, expense and physical affect upon the human body” as one of the “named” operations. This, in effect, is rewriting the policy and putting a burden on the insured which the policy does not put on him. The policy just says compare the unnamed operation with those listed. What is the ordinary meaning of “compare”? If one is asked to “compare” the grades of two students, it certainly does not mean that he can’t compare them unless they are “substantially equal.” If an artist were asked to compare two pictures painted by different artists of different scenes, on different sizes of canvas, he wouldn’t say, “I can’t do it because they are not ‘susbtantially equal.’ ” He would instead say, “Well, both artists used the same brush technique; blue is the predominant color in both, although one artist has used a lighter blue; while both are outdoor scenes, one artist has shown many clouds in the sky and the other has shown very few.”

Universities offer courses in “Comparative Religions”, but the religions studied and compared therein are not “substantially equal”. And, by the same token, two operations in order to be compared on the basis of severity do not have to be “ * * * of substantially equal risk, involvement of time, expense and physical affect upon the human body.” (Issue 21). If there be two operations — regardless of their nature— they can be compared in severity, and in order to so compare them one does not have to first find that they are “ * * * of substantially equal risk, involvement of time, expense and physical affect upon the human body” (Issue 21). For example, let us take two operations named in the policy— (1) “Appendix, removal of .... $150.-00” and (2) “Nail, removal of ... $10.00”. These two operations can be compared in severity. The appellee Continental Casualty Company compared the two operations and obviously felt the removal of an appendix was about 15 times as severe as the removal of a nail for it allowed $150.00 for the appendectomy and $10.00 for the removal of the nail. A policy holder certainly should have the same right to compare without having to prove the unnamed operation is “substantially equal” to a named operation. The policy says to determine an amount to be paid by comparing (not equating) the severity of the unnamed operation with those named. Dr. Treadwell in his testimony compared the unnamed opr erations with a named one, and money damages issues (Nos. 4-8) were submitted based on the language of the policy. The jury failed to agree on the controlling issues, therefore, a new trial should have been granted by the trial court. It erred when it rendered judgment for Continental Casualty Company.

The policy says that any unnamed operation can be compared with those named, for the policy says it will pay for unnamed operations. So if an unnamed operation is had, it is supposed to pay something. The policy says you determine how much should be paid “on the basis of comparative severity with operations which are named, but not less than the minimum * * * ” An insurance policy cannot set up an impossible test, so if the policy says the amount to be paid for an unnamed operation can be determined on the basis of comparative severity it is a recognition by Continental Casualty Company that the amount is what is to be determined and that it can be determined in every instance by comparison regardless of whether the operations are substantially equal.

The dictionary is recognized as giving the common meaning of words. In The Winston Dictionary “comparative” is defined as:

“1, pertaining to comparison, or to the act of comparing; 2, not absolute; estimated by, or resulting from, comparison; relative; using, or founded on, comparison; as, comparative theology; comparative anatomy: ”

“Compare” is defined as:

“1, to liken; refer to as similar; 2, to examine in order to discover likeness and unlikeness * * * ”

Webster’s New Collegiate Dictionary defines “compare” as:

"COMPARE 1. To represent as similar; to liken. 2. To examine the character or qualities of, for the purpose of discovering their resemblances or differences. 3. Gram. To modify according to the degrees of comparison ; to state the positive, comparative, and superlative forms of. See COMPARISON, 2. —v.i. 1. To be like or equal; to admit, or be worthy of, comparison. 2. To vie; to assume a likeness or equality.
“One object is compared with another when set side by side with it in order to show their relative value or excellence; to another when it is formally represented as like it; as, Pope compares Homer with Vergil; he compares Homer to the Nile in boundless flow of riches. Syn. Compare, contrast, collate mean to set side by side in order to show likenesses and differences. Compare implies as its aim the showing of relative values or excel-lences by bringing out characteristic qualities, whether similar or divergent; contrast implies as its aim an emphasis upon the differences; collate implies minute and critical examination in order to note points of agreement or divergence. ■ — n. Comparison; as, beyond compare.”

Applying Webster’s definition to the policy language that unnamed operations are to-be paid for in an amount determined * * * on the basis of comparative severity with operations which are named, * * *” (emphasis supplied), it shows that Issue 21 was not controlling, because Webster says that “One object is compared with another when set side by side with it in order to show their relative value or excellence; to another when it is formally represented as like it; * * * ” The policy says to determine the amounts to be paid for unnamed operations by comparing the severity of the unnamed operation “with” operations which are named; therefore, under Webster’s definition this means-that you set an unnamed operation by the side of a named operation in order to show their “relative value” not to show that they are “substantially equal.”

These definitions and the policy language show that Special Issue 21 is not a controlling issue. The jury’s answer that the two operations “were not comparative” could just as well mean that the jury felt the operations performed by Dr. Treadwell were more severe than the named operation, for under the trial court’s definition in order to answer “they were comparative” the jury would have had to find they were substantially equal.

The trial court based its judgment solely on the answer to Issue No. 21. Street, as appellant, urged in the Court of Civil Appeals that Special Issue 21 was not a controlling issue and that the trial court erred in rendering judgment for Continental. The Court of Civil Appeals sustained this point and remanded the cause to the trial court for a new trial. Continental’s petition for writ of error contains a point that the Court of Civil Appeals was in error in so holding. It is true that Street did not in the trial court and the Court of Civil Appeals pray for judgment for the minimum provided in the policy. However,' Street did, in his motion for new trial, contend that the answer to Special Issue No. 21 of the Court’s charge “ * * * does not -constitute a finding by the jury that plaintiff is not entitled to recover any sum of money from the defendant under said in.surance policy for operations performed upon plaintiff by Dr. Treadwell.” Certainly, the trial court did not base its judgment against Street upon the failure of the jury to answer Special Issues 4 to 8, inclusive. This being a jury trial, neither findings of fact nor conclusions of law were filed. It is logical to conclude that the trial court would have granted Street a new trial, but for its belief that the jury .answer to Special Issue No. 21 warranted a take-nothing judgment against Street.

As a matter of -law, whether Street jrayed for it or not, the Court could have, under the evidence and the jury’s answer to Issue No. 1, entered a judgment for $5.00 in .favor of Street. The answer to Issue 1 was a jury finding that an operation had been performed. The policy said to pay Street at least $5.00 for an operation. The jury verdict forms a basis for a judgment for Street for $5.00, and does not form any basis for a take-nothing judgment or judgment for the defendant, Continental. A valid judgment for Continental cannot be based upon the answer to immaterial Issue 21.

The judgment of the Court of Civil Appeals reversing and remanding this cause to the trial court must be sustained, unless we ■sustain Street’s alternative prayer for a judgment for $5.00, and the statutory penalty, plus all costs.

It is my opinion that this court -could grant Street’s request for judgment, even though Street’s prayer for judgment was filed in this court for the first time. However, if the Court is of the opinion that judgment cannot be rendered in favor of Street, then the cause should be remanded to the trial court with appropriate instructions.

I agree with Street that the case of Lewis v. Texas Employers’ Insurance Ass’n, 151 Tex. 95, 246 S.W.2d 599, has no application. The holding in the Lewis case was predicated on the fact thát. the jury had found facts which supported all the elements necessary for a judgment, “but the jury in the case at bar had not found -any facts which would ‘support all the elements necessary for a judgment’ for the defendant insurance company.”

Street proved he had “unnamed” operations. Continental .Casualty Company promised in 'its policy to. pay him for these operations. Continental Casualty Company promised to pay him a minimum amount even if he offered no testimony comparing the severity .of his. “unnamed” operations with any of those named. -He offered evidence comparing operations, and damage issues were submitted. Yet, Street is, as of now, empty handed. The trial court erred in rendering a take-nothing judgment in favor of Continental Casualty Company.

The Court has written on motion for rehearing that since Street did not object to Issue 21, he “without doubt would have insisted on judgment in his favor had the issue been answered favorably to him.” The record does not support such a conclusion, but, on the other hand, Street has contended in all courts that Special Issue 21 was not a controlling issue. The effect of his position is that an affirmative answer to the issue woud not support a judgment for either party.

The judgment of the Court of Civil Appeals should be affirmed; or, in the alternative, judgment should be rendered for Street for the minimum amount of money provided in the policy, plus penalties, costs, etc.

      . “SPECIAL ISSUE NO. U

      “Do you find from a preponderance of the evidence that objectively determined, on the basis of comparative severity, the operations, if any you have found, performed by Dr. Treadwell as a dentist upon the mouth of plaintiff were not of comparative severity with, ‘Sinus: Cutting into other than puncaíre, mu tiple’, as listed in the policy in question?
      “In connection with the preceding Special Issue No. 21, you are instructed that the term, ‘comparative severity’, means of substantially equal risk, involvement of time, expense and physical affect upon the human body.
      “Answer: ‘They were not comparative’, of, ‘They were comparative’, as you may find.
      “Answer: They were not comparative”

      . “SPECIAL ISSUE NO. 4:
      “Comparing the severity of the operation, if any, which was performed on the plaintiff by Ur. Treadwell on the 22nd day of March, 1958, with the operations which are named in the insurance policy involved in this suit, what amount of money, if any, do you find from a preponderance of the evidence would be comparable and reasonable for the defendant to pay the plaintiff for such operation, if any? Answer in dollars and cents, if any.
      “Answer:_”


author: DICE, Commissioner.

text:
    Jerry COFFMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 37018.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon his plea of guilty and waiver of trial by jury, of the offense of felony theft and his punishment was assessed at confinement in the penitentiary for five years.

No statement of facts of the evidence adduced upon the trial accompanies the record, and there are no bills of exception.

The judgment entered by the court orders that appellant be punished by confinement in the penitentiary for a term of not less than two nor more than five years. An examination of the record reflects that the punishment assessed was five years. The sentence pronounced by the court orders that appellant be confined in the penitentiary for five years.

The judgment is reformed to provide that appellant be confined in the penitentiary for a definite term of five years and the sentence is also reformed so as to give application to the indeterminate sentence law, Art. 775, Vernon’s Ann.C.C.P., and order that he be confined in the penitentiary for a term of not less than two nor more than five years.

As reformed, the judgment is affirmed.

Opinion approved by the Court.