author: WILLIAMS, Justice.

text:
    H. L. WHISENANT, Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 15949.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 26, 1962.
    Rehearing Denied March 2, 1962.

      Harris, Anderson, Henley & Rhodes, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Timothy E. Kelley and Rust E. Reid, Dallas, for appellee.
   WILLIAMS, Justice.

H. L. Whisenant sued The Fidelity and Casualty Company of New York seeking to recover workmen’s compensation benefits resulting from an injury sustained October 21, 1958 in an automobile accident in the City of Dallas, while on his way from home to his employer’s plant. By way of defense, the insurance company denied that Whise-nant sustained his injuries while within the course and scope of his employment for his employer, Columbia Packing Company, and also denied that Whisenant had “good cause” within the meaning of the law for failing to file a claim for compensation within the statutory time. Trial was to a court and a jury. At the conclusion of plaintiff’s testimony the insurance company filed its motion for a directed verdict, which motion was overruled. The case was submitted to the jury on the usual and customary issues in such case and the jury returned its verdict, answering all issues in favor of Whisenant with the exception of the issue on course of employment. As to this issue the jury was unable to agree. Thereafter the defendant insurance company filed its motion for judgment non obstante veredicto, or, in the alternative to reconsider its motion for instructed verdict previously filed and denied, and, in the further alternative for judgment based upon the proposition that the jury answer to the question of “good cause” was not supported by sufficient legal evidence and should therefore be disregarded. The trial court rendered judgment for the defendant insurance company, non obstante veredicto, and overruled defendant’s alternative motions. Whisenant’s motion for new trial contained an assignment that the trial court was without authority to render a judgment non obstante veredicto on an incomplete verdict. The trial court, sustaining this assignment, reformed its prior judgment by sustaining defendant’s motion for instructed verdict and rendering judgment for the defendant.

Appellant, Whisenant, seeks a reversal of the judgment, based upon two points of error : (1) that the trial court erred in granting an instructed verdict that appellant take nothing, on the specific ground that he was not in the course and scope of his employment, when the evidence was sufficient to raise a fact issue; and (2) that the trial court was without authority to render judgment based upon the motion for instructed verdict after having rendered judgment non obstante veredicto.

We shall first consider appellant’s second point relating to the alleged procedural error. As stated above, defendant had, prior to the submission of the case to the jury, filed its motion for instructed verdict contending, among other things, that there was no evidence to support plaintiff’s contention that he was injured within the scope and course of his employment. After the receipt of the jury verdict, defendant filed its motion entitled “Defendant’s Motion for Judgment notwithstanding the verdict of the jury, or in the alternative, a renewal of its motion for instructed verdict, or in the alternative, for judgment in its favor as regarding the answer of the jury to special issue No. 16”. On December 2, 1960, the trial judge entered his judgment which recited that defendant’s motion for judgment notwithstanding the verdict was sustained and that plaintiff take nothing by his suit. Thereafter plaintiff filed, on December 27, 1960, his amended motion for new trial, the first assignment therein attacking the authority of the trial court to enter judgment non obstante veredicto under Rule 301, Texas Rules of Civil Procedure, based upon an incomplete verdict. Thereafter, on January 3, 1961, the court entered a reformed judgment, wherein the trial court recited that defendant’s motion to renew its instructed verdict should have been sustained upon the specific ground that as a matter of law the plaintiff was not in the course and scope of his employment at the time of the accidental injury complained of, and therefore proceeded to render the judgment against the plaintiff. In his order accompanying the entry of the judgment on January 3, 1961, the trial court agreed that he did not have the authority to grant the defendant’s motion for judgment notwithstanding the verdict, and that he “now reforms said judgment to conform with these findings that defendant’s motion for instructed verdict should have been granted and that it was the intention of the court to enter a judgment to reflect accurately its findings that as a matter of law plaintiff was not in the course and scope of his employment at the time of his accidental injury * *

The court correctly concluded that he did not have authority to .render judgment notwithstanding the verdict when there was an incomplete verdict as in this case. Handy v. Olney Oil & Ref. Co. (Civ.App.), 68 S.W.2d 313; Fitts v. Carpenter (Civ.App.), 124 S.W.2d 420. Appellant contends that when the trial court sustained this assignment in its motion for new trial that in effect, the new trial was granted and therefore the court had no authority to do anything except place the case back on the jury docket for a new trial. We cannot agree with appellant’s contention. The action of the trial court in entering the second judgment took place within thirty days from the entry of the first judgment. The thirtieth day from the rendition of the original judgment was January 1st, a legal holiday, and also a Sunday, therefore, the thirtieth day for the purposes of the reformation of the judgment fell on Tuesday following the Monday following January 1st, or January 3rd. Rule 4, T.R.C.P.; Blackman v. Housing Authority of the City of Dallas, 152 Tex. 21, 254 S.W.2d 103. Under Rule 329b, T.R.C.P., the trial judge has jurisdiction for 30 days following the rendition of judgment to set aside, modify, or amend judgments even without the necessity of a formal written or oral motion. McDonald, Tex.Civ.Practice, § 18.03; O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791; Zachary v. Home Owners’ Loan Corp., (Civ.App.) 117 S.W.2d 153; Gulf, C. & S. F. R. Co. v. Muse, 109 Tex. 352, 207 S.W. 897; 4 A.L.R. 613; Pride v. Pride, (Civ.App.) 318 S.W.2d 715. Appellant’s second point is overruled.

We turn now to a consideration of appellant’s main contention concerning the vital question of course of employment. Since resolution of this question depends upon the facts of each case we have made a careful analysis of the undisputed facts in this record. Appellant, 78 years of age, had been continuously employed for about 18 years as a cattle buyer for Columbia Packing Company of Dallas at the time he sustained the injuries made the basis of this suit. He resided at 2638 Grafton Street in Dallas. His employer’s plant was located at 2807 East 11th Street in Dallas. He was not required to perform any work at the Dallas plant, his employment consisting of buying livestock in Fort Worth, and, in some few instances, at other places near Fort Worth. For many years appellant would drive his own automobile from his home to the company plant in Dallas, leave it there, pick up his buying instructions and drive to Fort Worth in a company-owned automobile. After completing his day’s work he would return to the plant in Dallas, leave the company car, and return to his home in his own automobile. The appellant did not have any certain hours, nor did he punch a clock as did the other employees. He was required to appear at the Dallas plant to pick up written instructions as to the number and type of cattle that he should buy that particular day. One of the owners of Columbia Packing Company had a young son who desired to learn the cattle buying trade. This young man was an employee of the packing company and was required to punch a clock at the plant in the morning. Appellant was asked to teach the young man to become a cattle buyer, and for about 3 years prior to the injuries complained of, appellant, in addition to going by the Dallas plant in the morning to pick up the buying instructions, also picked up the owner’s son and took him to Fort Worth. Approximately four months before the injuries complained of, appellant requested permission to use his own personal automobile, the reason assigned being that his car was air-conditioned, whereas the company car was not, and therefore more comfortable during the warm months. This arrangement for use of personal automobile between Dallas and Fort Worth was agreeable to the employer who also agreed to provide gasoline and oil from the facilities at the Dallas plant. By custom, appellant would usually fill the tank of his automobile with gasoline upon returning from Fort Worth in preparation for the trip the following morning. On October 21, 1958, appellant was injured in an ■automobile accident on the public streets in the City of Dallas after leaving his home and on the way to the Dallas plant to pick up his buying instructions and also to pick up the owner’s son.

Based upon these facts the sole question is presented: was Whisenant injured within the scope and course of his employment for Columbia Packing Company? Appellant correctly contends that since the trial court sustained the motion for instructed verdict on this issue that such judgment must be reversed if there is any evidence of probative force to raise an issue of fact. Underwood v. Security Life & Annuity Co. of America, 108 Tex. 381, 194 S.W. 585; Texas Employers’ Ins. Ass’n v. Ritchie, (Civ.App.) 75 S.W.2d 942; Highway Insurance Underwriters v. Griffith, (Civ.App.) 290 S.W.2d 950.

With awareness of this rule we have carefully considered all of the evidence in this case, construing it most favorably for appellant, as well as what we consider, to be the applicable authorities, and have reached the conclusion that, as a matter of law, appellant was not acting within the course and scope of his employment at the time of the sustaining of his injuries, and therefore, the trial court was correct in his judgment.

It is a well-established rule of law in Texas that an injury occurring in the use of public streets or highways in going to and returning from the place of employment is not a compensable injury. Art. 8309, Vernon’s Ann.Civ.St.; Smith v. Texas Employers’ Insurance Association, 129 Tex. 573, 105 S.W.2d 192; United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370. As stated by our present Chief Justice Calvert in American General Ins. Co. v. Coleman, 303 S.W.2d 370, there are exceptions to this rule. Thus an injury is held to be compensable where the means of transportation is furnished by the employer. Fritzmeier v. Texas Employers’ Ins. Ass’n, 131 Tex. 165, 114 S.W.2d 236. Again the injury is compensable where .the employer pays another to transport the injured employee. Texas Employers’ Ins. Ass’n v. Inge, 146 Tex. 347, 208 S.W.2d 867. The “special mission” cases illustrate another exception. In these cases it has been held that an injury is compensable if in going to and returning from his place of employment the employee undertakes special mission under the direction of his employer, or performs a service in furtherance of his employer’s business with the expressed or implied approval of his employer. Liberty Mut. Ins. Co. v. Nelson, 142 Tex. 370, 178 S.W.2d 514; Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791; Texas Employers’' Ins. Ass’n v. Knipe, 150 Tex. 313, 239 S.W.2d 1006.

In 1957 our Legislature enacted Section lb of 8309, V.A.C.S., which clarified, by legislation, the rule and various exceptions previously discussed in court decisions. The amendment provides:

“Unless transportation is furnished as a part of the contract of employment or is paid far by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring' during the course of such transportation is sustained in the course of employment.”

Thus, by legislation, there are four exceptions to the general rule concerning non-compensability of travel injuries. We apply these exceptions to the facts before us. The first exception, that transportation is furnished by the employer is manifestly not applicable in that appellant, pursuant to his own arrangement with his employer, furnished his own automobile for that transportation previously furnished by the employer. Moreover, even under the original arrangement whereby the employer furnished transportation such was only furnished between the plant at Dallas and Fort Worth. The second exception, that the transportation is paid for by the employer, is likewise inapplicable. There is no evidence in this record that the employer paid for the transportation at the time of the sustaining of the injuries in question. It has been definitely held that the mere furnishing by the employer of gasoline for the employee’s automobile does not constitute the furnishing of transportation. Republic Underwriters v. Terrell (Civ.App.), 126 S.W.2d 752, err.ref. The third exception pertaining to control of the employer of the means of transportation is not applicable here. Appellant testified that his employer made no effort to control his actions between the time he left his residence and the time he reached the company plant. He testified that no effort was made to direct him as to when he should leave home; what route he should take; the speed he should drive his vehicle. As far as this record shows it was completely immaterial to the employer as to how appellant proceeded from his residence to the plant. The .record would indicate that it was immaterial to the employer whether appellant spent the night at home, or elsewhere, or whether he proceeded to the plant in the morning in his own car, by bus, or even walking.

Appellant seems to place great emphasis upon the fourth exception contained in the statute, i. e., that the employer directed the employee to proceed from one place to another, which exception comprehends “the special mission” line of cases heretofore referred to. It is appellant’s contention that requiring him to go to the plant to pick up the employer’s son constituted a “special mission” within the purview of such cases as Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128 (Com.App.); Lehers v. Federal Underwriters’ Exchange (Civ.App.), 79 S.W.2d 925; and Maryland Casualty Co. v. Smith (Civ.App.), 40 S.W.2d 913. With this contention we cannot agree. A careful analysis of the cases cited by appellant makes them immediately distinguishable from the instant appeal. In each of those cases the employee was engaged in specific special mission apart from his regular duties. Not so in this case. Whisenant had for many years, as an integral part of his employment, appeared at his employer’s plant in Dallas for the purpose of picking up purchase orders for the day. Admittedly his work for his employer did not begin until he reached the plant. The additional requirement of picking up the employer’s son at the plant could not increase the hazard of appellant’s employment but was merely incidental to a custom of long standing. It is apparent from this record that appellant would have made the journey from his home to the plant to pick up the orders for the day regardless of whether the employer’s son was to be transported to Fort Worth. Here the additional duty of picking up the employer’s son was merely incidental to his regular employment which did not begin until he arrived at the company plant. Appellee admits that had the accident occurred between Dallas and Port Worth there would be no question concerning course of employment. However, since the accident occurred at a point between the appellant’s home and the company plant at a time when appellant’s duties had not begun, his injuries would fall within the category of those of the general rule concerning street and highway accidents. Appellant was not required by his employer to proceed from one place to another. He was merely required to report to his employer’s plant in time to pick up his orders and his fellow worker so that he could then proceed from the plant to Fort Worth to perform his duties.

Concluding, as we do, that there is no evidence of probative force in this record to raise an issue as to the question of course and scope of employment of appellant at the time he was injured, the action on the part of the trial court in sustaining the motion for instructed verdict was proper

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    Freedom ARCHEY, Appellant, v. NEDERLANDSCH - AMERIKAANSCHE STOOMVAART MAATSCHAPPIJ (HOLLAND-AMERICA LINE), Appellee.
    No. 7370.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1962.
    Rehearing Denied March 13, 1962.

      Mandell & Wright, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Ed Bluestein, Jr., S. G. Kolius, Houston, for appellee.
   CHADICK, Chief Justice.

This action for damages was brought by stevedore injured while storing cargo in a wharfed vessel. A take nothing judgment is affirmed.

The appellant, Freedom Archey, brought this suit as plaintiff against the Neder-landsch-Amerikaansche Stoomvaart Ma-atschappij (Holland-America Line) as defendant in a district court of Harris County, to recover damages for an injury received while working on board the S. S. Alblas-serdyk, the defendant’s vessel engaged in the transportation of cargo in interstate and foreign commerce. Archey was not an employee of the defendant, hereafter referred to as appellee or Holland-America Line, nor a member of the vessel’s crew. Holland-America .Line contracted with a firm named Port Arthur Stevedores to stow cargo on the vessel. In accordance with customary practice the stevedoring firm called upon the longshoremen’s union for stevedores to load the vessel.

A longshoreman gang, including Archey, was dispatched to perform the work. Archey was employed and assigned with seven others to load steel drums filled with oil in the No. 2 hatch of the vessel. Hatch covers were removed and the ship’s booms lowered the drums into the hatch. The drums were released from the boom slings and moved to the deck storage area in the ship’s hold by the longshoremen. A drum would be rolled on the deck floor to a point near the place it was to be upended and stowed. At this point two men would raise the drum on its rim to a balanced position; one man would then maneuver it into place while the other returned for another drum. Raising the barrel from its side to stand on its end is called “heading” the drum by stevedores.

On the morning of September 19, 1956, before the stowing operation began, dun-nage (planks of rough wood used as flooring) was laid on the steel deck floor. To properly serve its purpose dunnage must be in good condition, laid straight and smooth to make a secure footing for the stowed cargo as well as for the men working on it. One of the longshoremen laid some dunnage that he found in the hatch, and Archey with another of his fellow workers began stowing the drums.

After the elapse of some time while doing this work Archey and his work partner were heading a two to three hundred pound drum when Archey’s partner released his hold on the drum to go back for another. The drum suddenly fell over as Archey attempted to maneuver it, jerking him downward and causing injury. Archey was hospitalized and treated.

Archey’s pleading in the trial court alleged that the negligence of the ship line, the unseaworthiness of the vessel, or both, proximately caused his injuries. The jury answered special issues establishing the following facts: (1) Warped dunnage was used to floor the deck where Archey worked at the time of his injury; (2) the warped condition of the dunnage was not the proximate cause of Archey’s injury; (3) Holland-America furnished unwarped dunnage for the storage deck floor; (6) the length of the dunnage furnished was sufficient for dunnage purposes; (8) Archey could, with safety, work upon dunnage of the length furnished; (11) the deck flooring where Archey was working made the area an unsafe place to work at the time of his injury; (12) working on the unsafe floor was not the proximate cause of Archey’s injury; (13) Archey did not exercise reasonable care to ascertain that the steel drum was in a position to be safely headed at the time of his injury; (14) the proximate cause of the accident in which Archey was injured was failure to use ordinary care to ascertain the steel drum he was stowing was in a position to be safely headed; (15) Archey removed his hands from the drum as soon as a person in the exercise of ordinary care would have done so; (17) Archey was not stowing a drum on warped dunnage at the time the accident occurred; (20) Archey failed to use ordinary care to procure other dunnage to be used in stowing the drums; (21) the failure to procure other dunnage was not the proximate cause of the accident; (22) the conduct of Archey was 50% the proximate cause of the accident. The jury answered all issues the court’s instruction required to be answered. Only the numbers of the issues answered are indicated. A take nothing judgment was entered on the basis of the jury’s answers.

The appellant’s brief finds no fault with the submission of the negligence theory of the case or to jury answers to issues propounded thereunder. The attack on the judgment is directed to the submission of the action on the unseaworthiness theory. Briefed as error is the trial judge’s action in refusing after timely written request to ■instruct the jury as follows:

“You are instructed that the applicable law imposes an absolute duty upon Defendant to furnish dunnage in the hatch where it was to be used that was reasonably suitable for the purpose .of stowing the steel drums with safety. Defendant cannot delegate such duty to .any stevedoring company nor can it contract such duty away to any other party.”

The appellant’s somewhat informal and unorthodox brief marshals in support of his complaint four general lines of argument. The condensed version that follows loses much of the intricate quality and power of the argument but space limitation prohibits more detail. In general outline the argument is that the requested instruction should have been given because:

(1) The substantive and procedural rights of the appellant must be determined by maritime tort law; and as a corollary, the procedural rules of state courts cannot be invoked to deprive the appellant of substantive rights and remedies accorded him by maritime tort law or any applicable Federal enactment.

(2) The definition of “proximate cause” given in the charge to the jury, to-wit,

“By the term ‘proximate cause’ as used in this charge is meant a cause which in a natural and continued sequence produces an event and without which the event would not have occurred, and to be a proximate cause of an event it should have been reasonably anticipated and foreseen by a person of ordinary care and prudence in the exercise of ordinary care that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause,”

contained the language emphasized, thus, as a prerequisite to recovery under the seaworthiness theory, imposing more onerous conditions than the law prescribes absent the requested instruction.

(3) Admission of evidence that Holland-America Line contracted with the steve-doring firm to supply and lay dunnage was prejudicial, as admission thereof allowed the jury to reason or assume that duty in this respect shifted from the ship line to the stevedoring firm, in the absence of the requested instruction.

(4) The right of recovery under the doctrine of unseaworthiness was effectively denied the appellant by refusal to give the requested instruction.

The first line of argument as a legal proposition requires but little discussion other than to mention that no rule of procedure associated alone with maritime tort actions or a Federal enactment involved in this case is claimed to have been violated. Both parties seem to be in agreement that as a general statement of law applicable to cases of this nature the argument is correct. Such case as Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143, McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272; Arnold v. Panhandle & Santa Fe Railway Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889 and Givens v. Missouri-Kansas-Texas R. Co. of Texas, 5 Cir., 195 F.2d 225, are among those cited by the appellant. By this concession it is not to be understood that because Archey’s actionable rights are to be so measured the requested instruction was necessary to protect them.

To reverse the judgment on such ground, Archey must show that assertion of some substantive or procedural right was not allowed in the State court. In this connection the record shows Archey chose the State court as the forum for the trial of his claim. When he made such choice he subjected himself to the State courts’ practice insofar as it did not deprive him of rights or remedies accorded by maritime tort law or some Federal enactment. The principle is stated in a Jones Act Case (46 U.S.C.A. § 688), Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, where it is said:

"* * * By the institution of his suit petitioner invoked the jurisdiction of the state courts and the suit should be tried as any other suit for damages for negligence is tried in the state courts, provided there is compliance with the specific requirements of the Federal Statutes, that is to say, that assumed risk and negligence of fellow servants are not to be defenses and contributory negligence not a complete defense, and that the injured seaman or employee is entitled to trial by jury.”

See also: Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292; 240 S.W.2d 751.

The second line of argument reflects no error when considered in the light of the record. It has previously been noticed that Archey plead an action based in part on Holland-America Line’s negligence as the proximate cause of his injury. To sustain this theory the burden was on Archey to prove the ship line’s negligence was the proximate cause of his injury. His brief makes no suggestion that proximate cause was not a fact issue, nor that the submission of a special issue thereon was not required by the proof in the case and a necessary and appropriate issue to be submitted. As the record stands, a special issue on proximate cause was pertinent under the pleadings and proof, and the explanatory instruction defining the term was proper insofar as the negligence theory of Arch-ey’s case was concerned. Nevertheless, Archey’s contention is that because of the explanatory instruction, the jury “ * * * had to consider and determine whether the defendant [Holland-America Lines] as a person of ordinary care could have reasonably foreseen that the event [mishap] or some similar event would occur as a natural consequence of the kind of dunnage the contracting stevedores might use. * * * [and] was compelled to consider the elements of notice, foreseeability and exercise of due care when answering” the issues of proximate cause as the issues affected his right to recover under the doctrine of unseaworthiness.

The vice of the definition of proximate cause, so his argument runs, would have been removed by instructing the jury that Holland-America Lines had an absolute non-delegable duty to furnish "dunnage in the hatch where it was to be used, reasonably suitable for the purpose of stowing the steel drums with safety. The point of the argument being that the jury with knowledge of the Holland-America Line’s duty would not have been misled by improper elements of the proximate cause definition, and certain evidence yet to be discussed, and led to assume that Holland-America Lines discharged its duty and responsibility when it contracted with Port Arthur stevedores to stow the drums. Presumably, the argument charges, the jury could and would have, but for the proximate cause definition and the evidence alluded to, disregarded and overridden the instruction on proximate cause, or at least the objectionable elements of it, and applied the law of the requested instruction.

If the definition of proximate cause as given by the court contains elements incompatible with the requested instruction, or if Archey was not required to prove the warped condition of the dunnage (special issue 2) or the unsafe floor (special issue 12) was the proximate cause of his injury as a pre-requisite to recovery under the doctrine of unseaworthiness, (it is unnecessary to decide either proposition under the record presented), the procedure Archey advocates would permit the jury to choose the law it would follow in making a determination of the facts. Allowing the jury such latitude would conflict with and infringe upon the trial judge’s duty to instruct the jury as to the law governing it in the performance of its fact finding function and the jury’s duty to be guided by such instruction. Obviously, such procedure is contrary to the established practice in Texas. A purpose of special issues is to eliminate the need for instruction upon the law.

Archey could have had the benefit of every right afforded him by the unseaworthiness doctrine by following the rules of practice. These rules allow him time to call the trial judge’s attention to errors or deficiencies in the charge. Rule 272, Vernon’s Ann.Civ.St. He was authorized by Rule 273 to request such issues, instructions, explanations and definitions deemed controlling or appropriate to his case. But failure to timely object to the definition of proximate cause or make any request for a definition in other or different form constitutes a waiver of error in it on appeal. A. A. A. Air Conditioning & Mfg. Corporation of Texas v. Barr, Tex.Civ.App., 186 S.W.2d 825, wr. ref.; Punch v. Gerlach, 153 Tex. 39, 263 S.W.2d 770; Hicks v. Fredericks, Tex.Civ.App., 286 S.W.2d 315, n. w. h.; Bell v. Missouri-Kansas-Texas Railroad Company of Texas, Tex.Civ.App., 334 S.W.2d 513, n. r. e.; Rule 274. A party’s voluntary relinquishment of a right is not the equivalent of a disallowance of it by the court.

Rule 277 authorizes explanations and instructions in the nature of a general charge when necessary to enable a jury to pass upon and render a verdict upon the issues. Instruction in the nature of a general charge is exceptional, and as indicated is to be given only when the necessity therefor exists. Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481. How knowledge of the legal obligation of Holland-America Line’s non-delegable duty to furnish suitable dunnage would have aided the jury in determining from the facts before it that the dunnage used was or was not a proximate cause of Archey’s injury is not apparent. See Bell v. Missouri-Kansas-Texas Railroad Company of Texas, Tex.Civ.App., 334 S.W.2d 513, N.R.E.; Texas Bus Lines v. Whatley, Tex.Civ.App., 210 S.W.2d 626, N.R.E.; Mosby v. Texas & Pacific Ry. Co., Tex.Civ.App., 191 S.W.2d 55, N.W.H.; Tripp v. Watson, Tex.Civ.App., 235 S.W.2d 677, N.R.E. Refusal of the requested instruction was not error.

The third line of argument does not sustain Archey’s assertion of error for basically similar reasons as those just discussed. The appellant did not object to the testimony, or request its withdrawal from the jury or its limitation to particular purposes, or otherwise timely move to prevent its improper admission or use. Instead, after its admission he asked for an instruction embodying the law as to Holland-America Line’s duty to furnish suitable dun-nage. That the jury might have been influenced by the requested instruction in evaluating the evidence before it is purely a matter of conjecture. Intrinsically, knowledge of the legal duty of the ship line would not aid in determining whether the dunnage used or the unsafe floor was or was not the proximate cause of the mishap, or that the ship line did or did not supply dunnage that was not warped (Special Issue 3). If the evidence was inadmissible, objection should have been made, and if overruled assigned as error and the point presented here for review, Rules 324, 374, and 418. Giving the requested instruction was not a substitute for following the rules.

The fourth line of argument is largely a re-assertion of the preceding three. No error is shown. In addition to what has previously been said the records show that issues of fact were submitted by the trial court which, if found to exist by the jury, would support a verdict for appellant under the doctrine of unseaworthiness. The form of issues submitted did not by implication or otherwise relieve Holland-America Lines from any duty imposed on it by the doctrine. The jury was simply asked to find facts and did so. As the appellant’s theory is understood, he concedes that he was obligated to prove the unseaworthy condition of the vessel was the proximate cause of his injury as a prerequisite to recovery. So understanding it may be said that had the jury answered special issues 2 and 12 in the affirmative, rather than in the negative the jury findings would have supported a judgment for Archey. Under liis own theory of the case on appeal the submission of issues pertaining to unseaworthiness in the trial court was adequate and his real complaint is to their form. As ■shown, he waived his complaint.

No reversible error being shown, it becomes the duty of this court to affirm the judgment of the trial court and it is so •ordered.


author: BOYD, Justice.

text:
    OAK CLIFF REALTY CORPORATION, Appellant, v. C. R. MAUZY, Appellee.
    No. 16290.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1962.
    Rehearing Denied March 2, 1962.

      Gragg, Storey & Griffith, and Thomas N. Griffith, Dallas, for appellant.
    Frank Cusack, Dallas, for appellee.
   BOYD, Justice.

Oak Cliff Realty Corporation sued C. R. Mauzy for $1,104.30, alleged to be owing for rent, and for attorneys’ fees. A summary judgment was granted to Mauzy, and the corporation appeals.

The questions in the case are whether the leased premises were sufficiently described in the written lease agreement to meet the requirements of the statute of frauds, Art. 3995, subd. 4, Vernon’s Ann.Tex.St., providing that a contract for lease of real estate for more than one year shall be in writing, with the writing furnishing the means of identifying the property, and whether the case as pleaded by appellant comes within an exception to this statute.

The written lease contract begins: “The State of Texas, County of Dallas.” The term provided was for two years, beginning on June 1, 1956, at a rental of $3,710.40, payable monthly in advance at the rate of $154.60. The property leased is described as “Room or Rooms Numbered 501, on the 5th floor of the building known as Jefferson Tower.” It was provided that the rent.was to be paid at appellant’s office and place of business in Dallas, Texas.

An affidavit of appellant’s agent, which was attached to the answer to the motion for summary judgment, stated that the leased property was known as Jefferson Tower, and was situated at 351 West Jefferson Avenue, in Dallas, Texas. In his answer appellee referred to “such premises” as “Room 501 in the building known as the Jefferson Tower Building.”

In Sorsby v. Thom, Tex.Civ.App., 122 S.W.2d 275, the description of land in a contract of sale was held sufficient where it was described as the “Rock Island Plantation” and as the “Cordsen Rock Island Ranch tract”, although the contract did not mention the survey, city, county, or state in which the property was situated, the only mention of any location being that the contract had a heading of “Hempstead, Texas”. Krueger v. W. K. Ewing Co., Inc., Tex.Civ.App., 139 S.W.2d 836, was a suit by the seller for specific performance of a contract of sale of land, with a dateline including the words “San Antonio, Texas” and describing the property as being the “San Gabriel Apartments”, and “known * * * as the ‘San Gabriel Apartments’ ”, and it was held that the description was sufficient, it having been shown that the property had been known by such name for twelve years, the court saying that “ * * * a contract, we think, may also sufficiently describe property by its common or particular name by which it is known in the locality where situated,” and quoted from 18 C.J., p. 180, as follows : “ ‘The office of a description is not to identify the land, but to afford the means of identification, and when this is done, it is sufficient. Generally, therefore, any description is sufficient by which the identity of the premises can be established, or which furnishes the means of identifica* tion. A conveyance is also good if the description can be made certain within the terms of the instrument.’ ” See, also, Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150; Cunyus v. Hooks Lumber Co., 20 Tex.Civ.App. 290, 48 S.W. 1106; Manning v. Barnard, Tex.Civ.App., 277 S.W.2d 160. In Wilson v. Fisher the court said: “The authorities of many states from an early date have held that a description of land by the particular name by which it is known in the locality is sufficient. 25 R.C. L. 654, Sec. 285; 27 C.J. 272, § 323; Frauds, Statute of, Sec. 186; 18 C.J. 181, § 63, 26 C.J.S., Deeds, § 30.”

In his brief appellee says that at the time of the lease the building in question had been known by the name “Jefferson Tower for only a relatively short time.” There was no such allegation or evidence. We think that the statement in the lease, in the petition, in the affidavit opposing the-summary judgment, and in appellee’s answer, that the building in question is ■“known as Jefferson Tower”, is sufficient for the introduction of evidence that it was so known for a short time, for “a relatively' short time”, or for any number of years. We think the description is sufficient to meet the statute of frauds.

Even if the description is insufficient, we think the facts take the case out of the operation of the statute.

The written lease was signed by both parties, and appellee occupied the premises and paid $153.30 rent per month for seventeen months. Appellant alleged that it erroneously billed appellee for $153.30 per month instead of the $154.60, as provided in the contract, as the result of a clerical error. After seventeen months appellee removed from the building and refused to pay any more rent. In the affidavit opposing the summary judgment it was stated that appellant, relying on the contract, made certain improvements to the premises, as provided in the contract, wherein it is said that “Lessor agrees to partition space according to attached plan.”

When a contract has been fully performed by one of the parties, the statute may not be invoked by the other. The part performance necessary to take a case out of the operation of the statute must be by the party who seeks to enforce the contract. 20-A Tex.Jur.,- p. 419, Sec. 139. In Reeves Furniture Co. v. Simms, Tex.Civ.App., 59 S.W.2d 262, it was held that a case was taken out of the operation of the statute when the lease contract had been signed only by the lessor, and had been accepted by the lessee, who began occupying the premises and making monthly rental payments.

In Sorrells v. Goldberg, 34 Tex.Civ.App. 265, 78 S.W. 711, it was held that even under a parol lease for more than one year, the case was taken out of the statute where the lessee took possession of the premises and paid one or more monthly installments of rent. To the same effect is the holding in Adams v. Van Mourick, Tex.Civ.App., 206 S.W. 721.

The judgment is reversed and the cause remanded.


author: DIXON, Chief Justice.

text:
    Joseph C. CAMP et ux., Appellants, v. Jamie NEWSOM, Indiv. and as Guardian, et al., Appellees.
    No. 16057.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1962.

      J. Alex Blakeley and Rae Ann Fichtner, Dallas, for appellants.
    Shields, Jones & Whittington, Dallas, for appellees.
   DIXON, Chief Justice.

Appellees Jamie Newsom and her husband, Eugene Newsom filed a suit in the nature of a Bill of Review against appellants Joseph C. Camp and wife Hazel M. Camp. In their amended petition appel-lees ask the Juvenile Court of Dallas County (1) to set aside a judgment of adoption of three children; (2) to decline to take jurisdiction of matters pertaining to the custody of said children; and (3) to order appellants to deliver said children to ap-pellees forthwith. Jamie Newsom sued individually and as guardian of the persons and estates of the children.

A summary judgment was rendered in favor of appellees in the case, and an appeal from said judgment is now pending in this Court. The appeal has not yet been, reached by us for submission and determination.

Meantime two motions have been filed by the parties, which motions are entitled to our consideration before the appeal is reached on its merits.

Appellants have filed a motion seeking (1) to have us grant a supersedeas bond and to enter an order that the custody or status of the children shall not be changed or disturbed during the pendency of this appeal; and (2) to enter an order directing the trial court to refrain and desist from conducting or allowing any further proceedings in the case, such as the taking of depositions or the development of further evidence by any method whatever, pending our determination of the appeal on its merits.

Appellees have filed a motion to dismiss the appeal. They contend that the summary judgment entered by the trial court is not a final judgment in that it does not dispose of all the issues presented by the controversy. More specifically appellees say that the summary judgment merely sets aside the judgment of adoption previously entered by the trial court, and leaves undetermined the matters pertaining to the custody of the children.

We shall first consider appellees’ motion to dismiss the appeal. In opposing appel-lees’ motion appellants assert that in passing on the question whether the court’s decree is a final judgment we must confine ourselves to the terminology of the written decree itself, without recourse to extraneous statements by the court. Among other cases cited by appellants in support of this contention are Jones v. Willoughby, Tex.Civ.App., 245 S.W.2d 341; Harrison et al. v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909; Davis v. First Nat. Bank of Waco, 139 Tex. 36, 161 S.W.2d 467, 144 A.L.R. 1; and Austin, Commissioner, et al. v. Conaway, Tex.Civ.App., 283 S.W. 189.

In our opinion the cases cited by appellants are not applicable to the situation presented by the record in this case. Even if we were to confine ourselves to the terminology of the written decree itself, as appellants want us to do, it is our opinion that the judgment does not dispose of the issues involving the custody of the children. In this connection we quote material parts of the judgment:

“This, the 24 day of October, 1961, in the above entitled and numbered cause, came on to be heard Plaintiff’s motion for Summary judgment, * * whereupon the Court proceeded to consider such Motion, and the Court having heard and considered same, * * is of the opinion and hereby finds that there is no genuine issue as to any material fact existing between the parties; that Plaintiffs are entitled to judgment as a matter of law, and that Plaintiffs’ Motion should be and is hereby in all things granted and sustained; and that the Judgment of Adoption heretofore entered by this Honorable Court on the 3rd day of October, 1960, in Cause No. 60 — 1850—J on the Docket of this Court should be in all things set aside and held for naught.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that Plaintiffs’ Motion for Summary Judgment is hereby in all things granted and sustained;
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Judgment of Adoption heretofore granted and entered by this Honorable Court on the 3rd day of October, 1960 in Cause No. 60-18S0-J on the Docket of this Court is hereby set aside and same shall be of no further force and effect and is hereby in all things held for naught;
“AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants here, Joseph C. Camp and Hazel M. Camp, do not stand in the relationship of adoptive parents as to the minor children herein, being SUE ELLEN SCOTT, NORMA JOE SCOTT AND CHARLOTTE JEAN SCOTT, minors.
“SIGNED AND ENTERED this 24 day of October, 1961.
/s/ Lewis F. Russell
Judge.”

We think it is plain from a reading of the above recitations that the trial court was acting only on the question of setting aside the earlier judgment of adoption. Under Rule 166-A, § (d), Texas Rules Civil Procedure it is permissible for the court under some circumstances to render summary judgment on less than the whole case. The court did so in this instance, as is shown by the judgment itself.

However, we need not look to the judgment alone to find support for our holding. Rule 166-A § (d) expressly provides that the court may make an order specifying the facts that appear without substantial controversy and directing such further proceedings in the action as are just. In this case the court filed instruments denominated “Conclusions of Law” and “Additional Conclusions of Law.” Regardless of the form or name given these instruments they are in substance a compliance with the provisions of Rule 166-A, § (d) as above mentioned. We quote from the instrument denominated “Additional Conclusions of Law”:

“ * * * the facts disclosed by the Exhibits attached to Plaintiffs’ Motion for Summary Judgment, as well as the pleadings of the parties in the above entitled and numbered cause, affirmatively disclose that the facts and circumstances which must necessarily be present to authorize the Court to permit an adoption under the terms of Article 46-A, Sec. 6, [Vernon’s Ann.] Revised Civil Statutes of the State of Texas, did not exist at the time of the filing of the Petition of Adoption and at the time of entry of Judgment thereon on October 3, 1960, and by virtue thereof such Judgment of Adoption should be set aside AND HELD FOR NAUGHT. * * *.
“ * * * the only issue which was presented by Plaintiffs’ Motion for Summary Judgment upon which Judgment could be rendered as a matter of law and on which plaintiffs demonstrated there was no fact issue, was the issue that the Court did not have jurisdiction to enter the Judgment of Adoption, dated October 3, 1960, * *. All other relief sought by Plaintiffs in their Second Amended Original Petition remains pending adjudication.
/s/ Lewis F. Russell
Judge.”

It is a well established rule of law that when a suit is brought for Bill of Review to set aside a judgment, an order entered therein which merely sets aside the prior judgment without disposing of the entire controversy is not a final judgment from which appeal will lie. Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022.

Even if this were not a Bill of Review no appeal would lie in the present state of the record. In this case there has been no severance of appellees’ action to set aside the adoption judgment from their plea for adjudication of issues pertaining to custody. In the absence of such a severance a decree failing to dispose of all issues and actions is not an appealable final judgment. Holub v. Nortex Oil & Gas Corp., Tex.Civ.App., 330 S.W.2d 491; Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; and Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173.

We sustain appellees’ motion to dismiss the pending appeal in this matter. It necessarily follows that appellants’ motion for supersedeas and a stay order has been swept away with the dismissal of the appeal and is no longer pending before us. Or if it be thought that appellants’ motion is still before us, then we must overrule the motion, which we here and now do.

Appellants’ appeal is dismissed.

WILLIAMS, Associate Justice, not sitting.


author: COLLINGS, Justice.

text:
    J. C. SHOCKEY et al., Appellants, v. William Louis PAGE et al., Appellees.
    No. 3622.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 16, 1962.
    Rehearing Denied March 9, 1962.

      Cofer & Cofer, Austin, for appellants.
    McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellees.
   COLLINGS, Justice.

Appeal from the 42nd District Court of Taylor County.

This suit was brought by William Louis Page and Mary Page Childress, joined by her husband, Robert B. Childress, against J. C. Shockey and J. W. Rice as original makers of an installment deed of trust note and against Hollis B. Moore and wife whom plaintiffs alleged had assumed said indebtedness. Plaintiffs sought judgment for the deficiency claimed to be due after a sale under the deed of trust of real estate situated in Knox County. Defendants Rice and Shockey admitted the execution of the note but alleged they had been released from liability and, that in any event plaintiffs are now estopped to assert any claim against them thereon. Based upon a jury verdict judgment was rendered against the named defendants for the sum of $14,949.00, together with interest and attorneys fees. J. W. Rice and J. C. Shockey have appealed.

The evidence shows that on February 20, 1951, Rice and Shockey executed and delivered to Carl P. Springer, independent executor of the estate of Daisy D. Page, deceased, a promissory note in the sum of $28,000.00 bearing 5% interest from date to maturity and 10% on past due principal and interest. The principal was payable in annual installments of $2500.00. As security for the note Rice and Shockey executed a Chattel Mortgage on certain personal property and executed and delivered to Carl P. Springer a deed of trust, covering the real estate involved.

By warranty deed dated February 15, 1953, Rice and Shockey conveyed the property described in the deed of trust to one Hollis B. Moore, who assumed payment of the unpaid balance of the note. On July 17, 1954, Moore and wife conveyed the property to S. W. Bryan and wife, Ollie Bryan, who took subject to the indebtedness and lien.

On or about June 3, 1955, Carl P. Springer died and the independent administration upon the estate of Daisy D. Page ceased. Title to the note and all liens securing same thereupon vested in appellees, William Louis Page and Mary Page Chil-dress, devisees under the will of Daisy D. Page.

Principal payments in the amount of $6,000.00 were made upon the note. On February 15, 1959, the note was in default and there was then due the principal sum of $22,000.00 plus accrued interest. Appel-lees elected to accelerate the unpaid balance, and on June 2, 1959, sold the real estate at a trustee’s sale under the deed of trust for $8,000.00. The personal property covered by the Chattel Mortgage was sold for $1,000.00. Expenses of the sales were $1,-290.65. Applying the remaining receipts from the sales to the note, a balance remained of $14,949.00, plus interest at the rate of 10% per annum from June 2, 1959.

The case was tried before a jury which found that (1) Carl P. Springer, independent executor, did not unconditionally accept the assumption of the note by H. E Moore for the balance of $26,000.00, (2) that Springer did not, upon the assumption by Moore agree with Rice to release Rice and Shockey from further liability, (3) that Springer did not agree with Moore to extend the $2500.00 payment due February 20, 1954, (4) that Springer, prior to his death, and appellees after the death of Springer, did not by their acts, conduct or silence lead Rice and Shockey to believe they would no longer be looked to for payment of the note, (5) that Rice and Shockey did not rely on the acts, conduct or silence of Springer or appellees to the extent that they, in good faith, believed that they would no longer be looked to for payment of the note, and (6) that Rice and Shockey were not, because of any act, conduct or silence of Springer and appellees prevented from acting at some time before the trustees sale to protect themselves from financial loss in connection with said transaction.

Appellants contend in their 1, 4, 5, 7 and 8th points that the court erred in submitting to the jury Special Issues 1 through 6 or any of them and erred in refusing their motion for an instructed verdict, because the undisputed evidence and the overwhelming weight of the evidence show that the appellants Rice and Shockey were released from liability on the note because of the assumption thereof by H. E. Moore and the acts of Carl P. Springer, independent executor, and Alton Ward and S. W. Bryan. These points are not well taken.

Appellants contend that the undisputed evidence shows that Mr. Springer agreed that if Mr. Rice found some one capable of operating the plant and paying off the Page estate, it would be agreeable for appellants Rice and Shockey to sell the property; that Mr. Rice found prospective purchasers, Hollis B. Moore and wife who were people of good reputation, and told Mr. Springer that he had made a deal with the Moores to purchase the property; that Mr. Rice then agreed to pay two interest installments and $2,000.00 on the principal which would reduce the balance of the note indebtedness to $26,000.00; that Mr. Rice and Mr. Shockey thereupon sold the plant to the Moores who assumed payment of the note, and Mr. Springer agreed to the release of Rice and Shockey. Appellants also contend that their conveyance of the land to Moore and his assumption of the indebtedness converted appellants to sureties and that appellants were released from liability because Mr. Springer permitted or agreed for Moore to delay payments on the note for more than a year without their knowledge or consent. We cannot agree with these contentions. See Tenison v. Knapp, Tex.Civ.App., 64 S.W.2d 1071 (Ref.). It is undisputed that Moore assumed payment of the balance due on the note. Upon the assumption by Moore, however, Rice and Shockey did not thereby become mere sureties and they were not released from liability as principal obligors. There was no unconditional acceptance of Moore as the sole principal obligor by the holder of the indebtedness nor was there any agreement to release the original obligors. Dansby v. Stroud, Tex.Civ.App., 48 S.W.2d 1018 (Ref.); Kiel v. Staber, Tex.Civ.App., 116 S.W.2d 809 (Ref.); Caraway v. Fowler, 267 S.W. 672 (Com.).

The claimed acceptance and agreement to release was by Carl Springer, independent executor of the estate which estate was the holder of the indebtedness involved. Even if it should be assumed that Springer had authority to unconditionally accept Moore as the only principal obligor and to release Rice and Shockey, the jury has found that Springer did not so agree. It is appellants’ contention, in effect, that the court erred in submitting the issues concerning an unconditional acceptance by Springer and an agreement by him to release Rice and Shockey because the evidence conclusively shows that Springer did unconditionally accept Moore as the principal obligor and did agree that Rice and Shockey should be released as principal obligors. The evidence does not conclusively show these facts.

The undisputed evidence relied upon by appellants to conclusively establish their release on this theory was the testimony of appellant Rice. Mr, Rice was an interested witness. The general rule is that the undisputed testimony of an interested witness does not conclusively establish the existence of a fact to which he testifies. Mills v. Mills, 228 S.W. 919 (Com.); Simmonds v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332 (Com.). Although there are exceptions to the general rule, no exception was here shown to exist. The testimony of Mr. Rice was not clear, positive with no circumstances in evidence tending to discredit or impeach it, nor was his testimony corroborated by other witnesses or by opposite parties who had means of disproving the testimony and failed to do so. See Owen Development Company v. Calvert, 157 Tex. 212, 302 S.W.2d 640; Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931; McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (Com.). Mr. Rice’s testimony concerned a claimed transaction with Carl Springer who was deceased at the time of the trial and could not reply. Letters between Mr. Rice and Carl Springer in connection with the transaction indicate that Mr. Moore had assumed the indebtedness but did not indicate and certainly did not conclusively show an intention on the part of Mr. Springer to accept Moore as the only principal obligor on the note or to release Rice and Shockey from liability. Mr. Rice was a man of substantial means. Carl Springer was an experienced lawyer, and as independent executor was acting in a fiduciary capacity. He, in effect, so advised Mr. Shockey in one of the letters in evidence. The circumstances tend to render improbable rather than to corroborate the testimony of the interested witness, Mr. Rice.

In other points appellants contend that the court erred in refusing to submit to the jury their defensive issue inquiring whether or not plaintiffs agreed with S. W. Bryan and Alton S. Ward that plaintiffs would extend the payment of the principal on the note involved, and accept the liability of Mr. Ward, and Ward agreed to pay one payment of $1,500.00 on or about February 15th, 1959, and the balance of $1,600.-00 in four monthly installments of $700.00 each, March, April, May and June 1959.

The court did not err in refusing to submit the above requested special issue. The issue was duplicitous and its submission would have been improper. Rules 277, 279, Texas Rules of Civil Procedure. Even if it had been submitted and answered in the affirmative by the jury, it would not have supported a judgment, either alone or in connection with any other issues submitted or requested. Appellants remained principal obligors on the note. The fact that Ward assumed the indebtedness and that appellants extended the time of payment would not relieve appellants of their obligation.

Contrary to appellant’s contention undisputed evidence does not show facts contrary to those found by the jury which are the basis of this judgment. Appellant’s points are all overruled. The judgment of the trial court is affirmed.

WALTER, J., disqualified and not sitting.


author: WALTER, Justice.

text:
    Paul W. DRUMMET, Appellant, v. Thomas W. BEAL et ux., Appellees.

      No. 3662.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 23, 1962.
    Rehearing Denied March 16, 1962.

      Dyche, Wheat & Thornton, Houston, for appellant.
    Boone & Kraft, Houston, for appellees.
   WALTER, Justice.

Appealed from the 113th Judicial District Court of Harris County.

Thomas W. Beal and wife Thelma Beal filed suit against Paul W. Drummet for damages resulting from their eviction, by one having paramount title, from an airport which the Beals had leased from Drummet. Based on a verdict, judgment was rendered for the Beals for $59,678.15.

Drummet has appealed contending the court erred in rendering such judgment because there was no evidence, and insufficient evidence, to support the amount of the verdict and judgment and that the judgment is against the great weight and preponderance of the evidence. He also contends the court erred in failing to deduct the earnings of the Beals and the value of their services to the operation of the airport for the unexpired portion of the lease.

In 1956 Drummet leased some land to the Beals for a term of ten years for a consideration of $40,000.00, payable in one hundred and twenty equal installments. The Beals made all necessary improvements on the property to operate an airport. In February 1958 the Beals learned that the Houston Lighting and Power Company owned a strip of land within the leased premises and that the company was making plans to erect high transmission lines on this property. Drummet represented to the Beals that the transmission lines would be re-routed and would not interfere with his operations at the airport. In 1959 the Beals learned that the lines would not be re-routed and the power company had actually begun work preparatory to the erection of its lines. The Beals then notified Drummet they were vacating the premises because of the impending erection of the power lines.

We copy the following from appellant’s brief:

“This case was submitted to the jury, and judgment rendered, in accordance with the rule of law set forth by Commission of Appeals of Texas in the case of B. F. Avery & Sons’ Plow Company v. Kennerly, et al. (1929), Tex.Com.App., 12 S.W.2d 140, 141:

“ ‘It is conceded that in cases of this character (wrongful eviction) the general rule is to allow the lessee to recover the difference between the market rental value of the leasehold for the unexpired term of the lease and the reserved rentals stipulated therein.’

“The jury was instructed, in this connection, as follows:

“ ‘What do you find from a preponderance of the evidence would have been the reasonable rental value per month on March 1, 1959, of the lands described in Plaintiff’s Exhibit No. 1, together with the improvements constructed thereon by Plaintiff, for use as an airport, if the Houston Lighting & Power Company had not had the right to construct an electric transmission line thereon.’

"In response to this issue the jury answered, $1,100.00 per month. The jury also found that plaintiffs would have been required to pay $55.00 per month additional rental during the remaining term of the lease because of the override provision in the lease on sales of gasoline and oil.

“The amount of the judgment was computed by multiplying the rental value per month found by the jury ($1,100.00) by the number of months remaining in the term of the lease (87), to arrive at $95,700.00. From this sum was subtracted an amount that is the sum of the fixed monthly rental ($333.33) for the remaining term, plus the monthly 'override rental’ arrived at by the jury ($55.00) for the remaining term. This amount to be subtracted was computed at $33,784.71. Accordingly, plaintiffs’ gross damages were computed to be $95,700.00 less $33,784.41, or $61,915.29. From this amount was subtracted the back rentals owing by plaintiffs ($2,237.14), to arrive at the amount of the judgment — $59,678.15.

“The error complained of is that the evidence in the case will not support the answer to the jury respecting rental value”.

Appellees do not agree with the above statement and assert the following:

“Appellees, Plaintiffs in the trial court, do not fully agree with the Statement of Appellant, Defendant below, under his First, Second and Third Points of Error, in which it is said that this case was submitted to the jury, and judgment rendered in accordance with the general rule of law set forth by the Commission of Appeals in the case of B. F. Avery & Sons Plow Co. v. Kennerly, 12 S.W.2d 140 (1929), for the reason that the evidence clearly shows the leased premises to have had no market rental value as of March 1, 1959. Undoubtedly the case was submitted to the jury, and judgment rendered, in accordance with the purpose underlying the general rule, which is stated by the court in that case, at page 141, as follows:

‘ * * * It is the object and purpose of the law to compensate a tenant who has been wrongfully evicted from the premises for the actual loss he has sustained. By permitting him to recover the difference between the market rental value of the leased premises for the unexpired term and the rental reserved in the contract, he is in position to obtain other premises similarly situated and equally desirable, and thus will be adequately compensated for the loss he has sustained’ ”.

The rule is well settled that it is not necessary for a tenant to be actually dispossessed by the holder of the superior title in order for him to have a cause of action for eviction. It is sufficient that the tenant yield possession on demand or hostile or adverse assertion of paramount title by the holder thereof. 7 Tex.Law Review, page 658 and authorities cited therein. “The measure of damages is, primarily, the difference between the actual value of the term and the sum stipulated to be paid as rental.” 27 Tex.Jur. Page 228.

The appellant’s point that there is no evidence to support the amount of the verdict and judgment can not be sustained. Our Supreme Court in Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, speaking through Justice Griffin, said: “In considering the evidence to determine whether there is evidence to support the jury’s answer to Special Issue No. One, we must consider that evidence most favorable to the Barkers, as they were the party prevailing in the trial court. Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357; Hickman v. Hickman, 149 Tex. 439, 234 S.W.2d 410; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R. 1114; Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997.” In passing on the no evidence point, we must therefore, consider the evidence in the light most favorable to the Beals.

Without objection from Drummet, the issue submitted to the jury inquired as to the “reasonable rental value” of the leased premises rather than the “market rental valúe.” On this issue Beal testified substantially as follows: That he had leased Gulf Coast Airport from May 1946 to April 1956 and during such time carried on a comparable operation with similar facilities and that in 1955 at Gulf Coast his net earnings were almost $12,000.00; that he went into possession of Bealine Airport in June 1956, at which time there were no buildings or other improvements other than a sod runway; that he erected a shop building and two aircraft hangars, drilled a water well, erected a $6,000.00 airport beacon, built an office building and pilot’s lounge, built runways, taxiways and parking areas, installed runway marker lights, provided electric service to the premises, installed twenty tie-down anchors for outside storage of aircraft and started erecting an east-west runway, which was not completed because of the eviction. He further testified that the reasonable value of the improvements placed on Bealine was $50,600.00 and that he knew of no other airport with similar improvements that was being rented. Other witnesses testified for Beal and V. P. Ringer and others testified for Drummet and exhibits bearing upon the reasonable rental of the premises were introduced in evidence.

We find that there was some evidence of probative force to support the jury’s answer to the issue of reasonable rental value of the premises.

We have considered all the evidence and find that the verdict of the jury is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

At the time of the trial Thomas Beal was a pilot' for Saturn Airlines, earning from $460.00 to $480.00 per month. Thelma Beal testified that at the time of the trial she was averaging not less than $250.00 per month from office work. No issues were requested or submitted as to the earnings of the Beals for the unexpired term of the lease, nor as to the value of their services in the operation of the airport for such period.

Appellant’s points that the court erred in failing to deduct from the amount of the judgment the earnings of the Beals and an amount equal to the value of their services in the operation of the airport for the unexpired portion of the lease, cannot-be sustained. Assuming, without deciding, that the appellants were entitled to deduct these two items from the judgment, appellant’s failure to request issues or object to the court’s charge constituted a waiver of these points. Texas Prudential Insurance Company v. Dillard, 158 Tex. 15, 307 S.W.2d 242; Texas Rules Civ.Proc. 279.

We have examined all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: STANLEY, Commissioner.

text:
    M. H. SMITH et al., etc., Appellants, v. Clyde HENSLEY, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1961.
    As Modified on Denial of Rehearing March 2, 1962.

      Roy W. House, Manchester, Denney & Landrum, Lexington, for appellants.
    A. E. Cornett, Hyden, for appellee.
   STANLEY, Commissioner.

The action is by Clyde Hensley, one of eight partners constituting the firm of Mary Gail Coal Company, against all the partners, including himself by name, to recover damages for the value of a motor truck owned individually by the plaintiff, which he alleges was destroyed by the negligence of employees of the partnership.

The partnership operated a coal mine near Hyden and had its production transported by a fleet of thirty or more trucks to a tipple on a railroad at Manchester. Sometimes the trucks made several round trips a day. They were serviced by their several drivers at a gasoline filling station owned and operated by the company at the mine scales. Hensley’s personally owned truck was one of the fleet. The evidence is skimpy. There is no evidence as to the contractual relationship, but the appellants do not question appellee’s statement that his truck and driver had been “hired” by the company.

On June 10, 1958, plaintiff’s driver had filled his gasoline tank preparatory to hauling a load of coal to the tipple when gasoline became ignited and fire destroyed the truck. The plaintiff alleged this was caused by the defendants’ negligently permitting gasoline to be spilled from the pumps and to remain exposed on the ground. The defendants pleaded sole or contributory negligence of the plaintiff’s driver or that the loss was an unavoidable casualty. Upon a verdict judgment for $4,000 was entered for the plaintiff against his seven partners.

The defendants have contended that the plaintiff may not maintain the action against his co-partners. Specifically, they say the manager and other employees of the mining partnership were agents of the plaintiff as well as agents of the defendants, and their negligence, if any, was imputable to the plaintiff as well as to the defendants. The record fails to disclose the articles or contract of partnership, but we may assume that it was a general, ordinary partnership, without limitations or reservations inter se.

The situation presents a novel question in the field of partnership law.

Various legalistic concepts could be invoked as a basis for denying a right of recovery to the plaintiff. One would be that a partner cannot sue the partnership because a litigant cannot sue himself. Another would be that if negligence of the partnership employees is to be imputed to the defendant partnership to establish a basis for liability, by the same token the negligence must be imputed to the plaintiff so as to bar recovery.

It is our opinion, however, that under a realistic approach, seeking to achieve substantial justice, the plaintiff should be held entitled to maintain the action.

It is true that an action at law ordinarily is not maintainable between a partner and his firm. Simons v. Douglas’ Ex’r, 189 Ky. 644, 225 S.W. 721; Hibbard v. Browning, 237 Ky. 754, 36 S.W.2d 371; 68 C.J.S. Partnership § 109, p. 552. But the situation here presented is not an ordinary one. The law is well settled that a partner who has paid an obligation of the firm out of his own funds may obtain contribution from his co-partners. 68 C.J.S. Partnership § 116, pp. 557, 558. Also, a partner is entitled to reimbursement from the firm for losses suffered by him in the ordinary and proper course of the firm affairs. 68 C.J.S. Partnership § 82, p. 521. Compare Bower & Bower v. Collinsworth, 187 Ky. 1, 218 S.W. 455.

As concerns use of the doctrine of imputable negligence, courts have recognized that the doctrine is of artificial creation and must in particular cases yield to reason and practical considerations. 65 C.J.S. Negligence § 157, p. 797. As with the related doctrine of respondeat superior, it had its origin in considerations of public policy, convenience and justice, and has been developed and extended out of the necessities of changing social and economic conditions. 35 Am.Jur., Master and Servant, sec. 543, p. 974. It has been held by this Court that the doctrine of imputed negligence is inapplicable in an action between members of a joint enterprise or partnership. See Dorris v. Steven’s Adm’r, 266 Ky. 602, 99 S.W.2d 755.

Clearly, if negligence of the partnership had caused damage to the property of a stranger, the partnership would be liable. KRS.362.210, 362.220. We do not find any just reason for denying recovery where the damaged property is that of a partner. It seems to us that the damage should be considered an ordinary business loss.

It perhaps could be argued that while public policy imposes liability upon a partnership for damages to property of strangers, there is no public policy requiring partners to share the loss from damages to property of one of their number sustained in carrying on the partnership business. However, in both instances the considerations of public policy grow out of the realities of the economic world, and we find in those realities no basis for saying that if there is damage to property of a stranger, or to property owned by the partnership, the partners must share the. loss, but not so if the property is owned by one partner.

The law is well settled that if one partner negligently damages the property of another partner, the latter may recover from the former. 40 Am.Jur., Partnership, sec. 493, p. 468. Thus there is no basic public policy or rule of law to the effect that a partner who uses his own property in connection with the partnership business does so completely at his own risk. Why then, should he be held to assume the sole risks when the damage is done by a partnership employee rather than by another member of the partnership? It is a common practice for partnerships to carry on their business through employes. The practical realities of the business world dictate that the partners should share the loss of damage to property resulting from the negligence of the partnership employees, regardless of who owns the property.

If it be considered, as appears actually to have been the case here, that the use of the plaintiff’s truck was not in the partnership business but was a collateral use in connection with an independent contract between the plaintiff and the partnership, then there is more reason to impose a duty on the partners to share the loss, because there is no basis upon which it could be said that the plaintiff contributed his truck to the use of the partnership with an intent of the parties that he would assume all risk of loss.

We hold the action is maintainable.

On the merits, the appellants argue that the evidence did not go beyond permitting conjecture of negligence, or, at most, that the evidence was as consistent with the absence of negligence for which the defendants were responsible as with the existence of their negligence, hence, that the plaintiff failed to establish a legal cause of action, and the court should have directed a verdict for the defendants. McAtee v. Holland Furnace Co., Ky., 252 S.W.2d 427.

The evidence may be summarized. The several truck drivers filled their tanks at the company’s pumps, withdrawing 1,000 to 1,500 gallons of gasoline a day. They often spilled gasoline on the ground and nothing was done about it. There was no contradiction. There was corroboration of the plaintiff’s driver that on this occasion he had not spilled any gasoline in filling his tank. He testified he had not noticed any gasoline on the ground, but had not looked for any. The scales and gasoline pumps were together. Jones testified he had had his load of coal weighed and filled his tank, got in the truck and started the motor. As he was pulling out, the motor backfired and fire blazed up through the floor of the truck. A bystander testified “the exhaust set the fumes on fire” and the fire started from the ground under the truck. There was evidence that gasoline ignited in three or four spots or places on the ground around the pumps.

For the defendants, one witness testified that gasoline was “pouring out of the tank” and the backfire of the motor set it on fire. On re-direct examination he stated the backfire “caught the gas on the ground and followed up to the tank.”

In short, there was evidence that the cause of the fire and loss of the truck was igniting gasoline or gas vapor on the ground around the pump for which the driver was not responsible.

The plaintiff’s driver was a business invitee on the defendants’ premises. Standard Oil Company v. Hagan, 309 Ky. 767, 218 S.W.2d 969. The defendants’ duty to him was, generally, to use ordinary care and vigilance to have the place in a reasonably safe condition, commensurate with hazards to be foreseen in the handling of such a potentially dangerous commodity as gasoline. Watson v. Ky. & Ind. Bridge & R. Co., 137 Ky. 619, 126 S.W. 146, 129 S.W. 341; Standard Oil Co. v. Marlow, 150 Ky. 647, 150 S.W. 832; 24 Am.Jur., Gasoline Stations, sec. 21; Standard Oil Co. of Kentucky v. Evans, 154 Miss. 475, 122 So. 735, Note 116 A.L.R. 1206. See Annotations 33 A.L.R. 774; 16 A.L.R.2d 799, p. 816.

The case was submitted to the jury by an instruction which permitted recovery by the plaintiff upon the finding of the failure of the defendants “to use ordinary care in the operation of their filling station, which included the further duty not to permit gasoline to be spilled and remain upon and around its premises in such quantity as to create a fire hazard to the vehicles of its customers.” The instruction, of course, included the factor of proximate cause. An instruction was given on contributory negligence of the plaintiff’s driver.

We think negligence of the defendants could reasonably and legitimately be inferred from the evidence, so it was for the jury to say whether or not there was negligence or contributory negligence as defined in the instructions. They appear to have properly submitted the law of the case. Blashfield, Cyclopedia of Automobile Law, sec. 5071, 5072, 5077.

The judgment is against the plaintiff’s seven co-partners by name “doing business as Mary Gail Coal Company.” This recognizes that the liability was that of the partnership firm, even though the plaintiff was a partner. 68 C.J.S. Partnership § 235. The negligence was that of the firm’s employees, acting within the scope of their employment. The partners, who are liable jointly and severally (KRS 362.-220(1)) for obligations of the firm should bear their respective proportionate shares as may be determined by the contract of partnership. Moore v. Malis, 292 Ky. 106, 166 S.W.2d 52. The plaintiff, Hensley, must bear his part. So the judgment should provide that satisfaction be out of the assets of the partnership, as an “association” (KRS 362.175), before resorting to the individual members thereof. Planters’-Farmers’ Warehouse Co. of Louisville v. Citizens’ Bank of Falmouth, 224 Ky. 466, 6 S.W.2d 720; 40 Am.Jur., Partnership, secs. 18, 398, 399, 412, 453; 68 C.J.S. Partnership §§ 236, 240.

The judgment may be so modified and as modified it is affirmed.


author: CULLEN, Commissioner.

text:
    Arthur SCHIRMER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 27, 1962.
    John W. Coomes, New Castle, for appellant.
    John B. Breckinridge, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., James Ford, Commonwealth’s Atty., Owenton, for ap-pellee.
   CULLEN, Commissioner.

Arthur Schirmer, confined in jail pending retrial under an indictment for murder (after a first trial had resulted in a hung jury), made a motion for bail, which was denied. He then sought release on bail through habeas corpus proceedings. Judgment was entered in those proceedings upholding the denial of bail, and Schirmer has appealed from that judgment.

The question is whether the evidence considered on the motion for bail warranted the conclusion of the judge that “the proof is evident or the presumption great,” which is the ground specified in Section 16 of the Kentucky Constitution for denial of bail to a person accused of a capital offense. We shall briefly summarize the evidence.

Sam Ryle, accompanied by Bertha Harmon, was driving his truck along a highway near Carrollton, around 1:30 a. m. Schirmer’s automobile came up from behind and pulled alongside the truck, and a shotgun blast was fired from the automobile, striking Ryle and causing his almost immediate death. Two city policemen, who had been following the Schirmer automobile as a routine patrol measure, were a short distance behind the two vehicles when the shooting occurred, but not close enough to distinguish the act of shooting. They had been following the Schir-mer automobile for several minutes and on occasions had been as close as 10 feet to it. Neither policeman had observed the presence of any person in the automobile other than the driver. The truck came to a stop after the shooting and when the policemen stopped to investigate, Bertha Harmon came out of the truck and said, “It was that damn Arthur Schirmer.” In the meantime Schirmer’s automobile had driven on. Schirmer was arrested later that night and it was discovered that he had caused his ex-wife to conceal his shotgun shortly before the police arrived. There was testimony that Schirmer had kept company with Bertha Harmon, that on the night of the shooting he was angered by her associating with Ryle, and that he had threatened to kill Ryle.

Schirmer’s testimony was that Mary Tingle was with him in his car when they drove alongside Ryle’s truck and that on the spur of the moment Mary grabbed his shotgun from the • back seat and shot at the truck, saying "I am going to scare the pants off of Billy (Bertha Harmon).” However, Schirmer did not explain why he had turned his automobile around to follow the Ryle truck a few moments before, when the truck had passed him going in the opposite direction. Mary Tingle denied that she was in Schirmer’s automobile at the time of the shooting.

It is our opinion that the evidence created a sufficiently great presumption of guilt to warrant the denial of bail. The judge hearing an application for bail is vested with a sound discretion in determining the sufficiency of the proof or presumption and there is no indication here 'of an abuse of that discretion. See Wells v. Commonwealth, 299 Ky. 51, 184 S.W.2d 223; Pool v. Commonwealth, 308 Ky. 107, 213 S.W.2d 603; Duke v. Smith, Ky., 253 S.W.2d 242; Holland v. Asher, Ky., 314 S.W.2d 947.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Victor JONES, Appellant, v. CITY OF BOWLING GREEN, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 2, 1962.

      E. R. Gregory, Charles H. Reynolds, Bowling Green, for appellant.
    G. D. Milliken, Jr., Bowling Green, for appellee.
   MONTGOMERY, Judge.

Victor Jones sued his employer, the City of Bowling Green, to recover damages for personal injuries received from a falling tree. The jury returned a verdict in favor of the City. On appeal, Jones argues that the instructions were erroneous and the remarks of counsel were prejudicial.

Jones had worked between four and five years for the City at the municipal cemetery. As such, his duties required that he cut grass, dig graves, cut and remove trees and brush, do planting, and other such tasks. The City had not elected to work under the Workmen’s Compensation Act.

On the morning of January 28, 1958, Jones and other workers had cleaned up some brush and had carried it to a dump in another part of the cemetery. The remainder of the work crew supervised by Claude Thomas, foreman, were engaged in removing a mulberry tree. On the day before, dynamite had been used around the base of the tree in order to make the roots more accessible for cutting.

According to Jones, when he returned to the crew the foreman ordered him to cut an overhanging limb from the tree. As he stepped under the tree, someone hollered, “Look out, Jones,” and the tree fell on him as he tried to escape.

Thomas’ version is that there was a small limb which was in the way of one of the men who was using an ax to cut the tree roots. Pursuant to Thomas’ order, Jones cut the limb while Thomas held it. Jones and Thomas then walked out from underneath the tree and stood fifteen to twenty feet back, with Jones two or three steps further from the tree. After the limb was cut, John Crabtree cut on the tree roots with an ax for several minutes; then two of the other employees used a saw on the roots for fifteen to twenty minutes. When it looked as though the tree was about to fall, the employees under the tree, at the direction of Thomas, sought a place of safety. As the tree fell, Jones ran under it, picked up his spade, threw it down, and was struck across the leg and hip by limbs of the tree.

Thomas’ version of the mishap was corroborated by the testimony of five employees, all of whom said that the dynamite had not weakened the tree roots and that it was necessary to cut and saw the roots before the tree would fall. It was further testified that the use of dynamite to expose tree roots was a known practice of long standing in the cemetery work

Appellant charges that the appellee was negligent in failing to furnish him with a reasonably safe place in which to work and to warn him of a hidden dangerous condition. Southern Mining Company v. Saylor, 264 Ky. 655, 95 S.W.2d 236. The condition created by the use of dynamite was an obvious one which appellant should have observed and should have known about from his long experience on the job. There was ample evidence to show that the condition was neither dangerous nor hidden. Under these circumstances, the rule in the Southern Mining Company case does not control. Skinner v. Smith, Ky., 255 S.W.2d 621, and the cases cited therein. However, the question presented here is whose negligence caused the injury. The respective rights and duties of the employer and employee in such cases are fully discussed in the Skinner case.

By Instruction No. 1, the jury was authorized to find for Jones if the jurors believed that he was injured when he “negligently was ordered to cut a limb from said tree after the same had been dynamited at its roots and was in a dangerous condition.” Appellant argues that the word “negligently” should have been omitted from the instruction.

The rule in such cases is that the employer is not an insurer of the safety of the employee, but such employee must allege and prove that the negligence of his employer was the proximate cause of his injury. Gatliff Coal Company v. Broyles’ Adm’x, 297 Ky. 516, 180 S.W.2d 406. Hence, the use of the word “negligently” in this instruction was necessary to submit the question of appellee’s negligence to the jury.

By Instruction No. 2, the jury was permitted to find for appellee if the jurors believed that Jones “walked beneath the falling tree without any orders so to do from the Superintendent Thomas, but voluntarily and of his own accord.” Appellant contends that this instruction submitted the question of whether he was contributorily negligent and is in violation of KRS 342-410, which denies an employer who has elected not to operate under the Workmen’s Compensation Act the privilege of defending on the ground of contributory negligence.

Instruction No. 2 was based on Instruction H approved in Elcomb Coal Company v. Brock, 300 Ky. 399, 189 S.W.2d 397. In Ward v. Marshall, 293 Ky. 18, 168 S.W.2d 348, it was pointed out that the denial of the plea of contributory negligence under the statute does not mean that the employer is to be denied the opportunity to show an absence of negligence on his part or evidence to the effect that the employee’s own (sole) negligence caused his injury. As was said in Smith’s Adm’x v. Honaker, 303 Ky. 348, 197 S.W.2d 780, “Where no negligence is shown on the part of the employer, the negligence of the employee is not that of contributory negligence, but it is primary negligence on his part.”

The evidence here was in sharp conflict. The two instructions presented the facts as developed on the two sides of the case. The two instructions presented to the jury the question whether the injuries were the result of the negligence of the employer or of the employee. The claimed errors in the instructions are without merit.

Appellant also insists that the remarks of appellee’s counsel made to the jury were prejudicial. They were to the effect that he represented the people and the taxpayers of the City of Bowling Green. It is argued that such Comments constituted an improper appeal to any jurors who may have been taxpayers of the City, since an adverse verdict to the City would have been unfavorable to the juror as a taxpayer.

In referring to a similar contention, Rees, J., said, “It must be assumed that the members of the jury were reasonably intelligent men, and knew that any judgment against the commonwealth would necessarily have to be paid out of taxes collected by it.” Commonwealth v. Hoover’s Adm’r, 274 Ky. 472, 118 S.W.2d 741. It was further pointed out that the source of the funds with which the judgment would be paid was not material.

Great latitude must be allowed counsel in presenting an argument to the jury. Whitney v. Penick, 281 Ky. 474, 136 S.W.2d 570; Elliott v. Drury’s Adm’x, 309 Ky. 814, 219 S.W.2d 3. However, an endeavor on the part of an attorney to influence the minds of the jurors by referring to the financial effect of the verdict on either party is improper, although the reference may not necessarily be prejudicial. Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 141 A.L.R. 105. The better practice would have been to refrain from any reference to the taxpayers, but in the light of Judge Rees’ statement and considering the overwhelming proof showing an absence of negligence on the part of the appellee, the error is not considered prejudicial.

Judgment affirmed.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. R. M. HEATH et al., Appellees.
    Court of Appeals of Kentucky.
    March 2, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Leslie D. Aber-son, Lexington, Atty¿ for Dept, of Highways, for appellant.
    Clyde E. Reed, Frankfort, for appellee.
   MOREMEN, Judge.

Appellant, Commonwealth of Kentucky, Department of Highways, has appealed from a judgment of the Franklin Circuit Court in which appellees, R. M. Heath and others, were awarded the sum of $16,370.00 in a condemnation action instituted by appellant.

In connection with the construction of a new highway, known to the record as 1-64, a limited access highway, appellant condemned a strip of land consisting of 20.42 acres from appellees’ farm. The farm contains approximately 164 acres and is situated about 41/2 miles from Frankfort on the west side of Cardwell Lane. The condemned strip bisects the farm and leaves a 31 acre tract on the south side of the new road and 113 acres on the north side. Most of the improvements are on the north portion and consist of a main house of eight rooms with customary facilities, and two other smaller buildings designated as tenant houses, a dairy barn in good condition with stanchions for twenty milch cows — and other smaller improvements. On the 31 acre tract on the south side stands the tobacco barn with capacity to hold six acres of tobacco. The farm also had numerous fences which divided it into pasture, hay, meadow and crop land. This was a good farm on a blacktop road and in a good neighborhood. The land itself is of the type known as the “Elk formation to the Lexington Highbridge and is Lexington limestone” — the kind of farm we suppose that is known as a “bluegrass farm.”

Appellant contends: (1) That the verdict was excessive and unsupported by sufficient evidence; and (2) The circuit court erred in permitting appellees to introduce evidence of net profits from the operation of the farm. For these reasons appellant asks reversal.

Competent witnesses were introduced by each party who expressed an opinion as to the value of the farm before the right of eminent domain was exercised.

The average of the estimates given by witnesses offered by the owners was $49,-350.00, or $300 per acre. Thus their valuation of the 20.42 acres permanently taken was $6,126.00.

The average of the estimates given by witnesses offered by the Commonwealth was $34,500.00 or $175 per acre. Thus their valuation of the 20.42 acres permanently taken was $3,573.50.

The average of the two valuations is $4,-849.75.

The jury evidently used this last average in reaching their award of $4,872.00. Perhaps the small extra amount ($22.25) was intended as compensation for the use of the temporary easement. In any event, the award was well under the valuation placed upon the strip by competent witnesses and was not excessive.

The jury awarded the sum of $11,498.00 as damages to the remainder of the property. Here again they seem to have obtained an average from all the testimony and the amount fixed was well under an amount which the evidence could have supported.

Appellee and the witnesses introduced in his behalf gave an average estimate of $15,-312.50 as damage to the remainder. The average of the estimate given by the Commonwealth’s witnesses was $5,762.50, so the amount of the award was just about $1,000 over the average of the figures of each set of witnesses.

In connection with damages to the remainder we must remember that originally this was a farm of approximately 164 acres and the proof indicates that it had been developed (Heath had been county agent for many years) as a cohesive unit with each portion of the farm devoted to the use for which it was best suited. Water was not a problem because there was a small but adequate pond situated near the tobacco barn, a small creek running across a portion of it and a non-failing spring. However, the farm was broken up into two tracts which for farm purposes were practically non-accessible to each other. Because of the construction of the new highway, water became a problem. The spring was located on the land which was condemned. Some attempt was made by the Department of Highways to save this spring and conduct the water to the 113 acre piece, but apparently this attempt was unsuccessful because appellee Heath testified that no water from the spring was coming on his property at the time the case was tried and none had flowed the summer and fall before. There was testimony to the effect that a new tobacco barn was required to be built on the 113 acre tract and that the entire farm operation would have to be changed. There was also testimony to the effect that the 113 acre tract was over-improved since there was no longer need for the tenant houses — and it was the opinion of several of the witnesses that it would be difficult to get a desirable tenant to operate the farm in its present condition.

Appellant insists that the rule is well established in Kentucky that the amount of damages is limited to the difference between the fair market value of the property immediately before the taking and the fair market value immediately thereafter and if a witness does not testify as to the value thereafter — if he knows what the after value is — it is impossible for the jury to find damages without such information. This contention is based upon the fact that some of the witnesses, but not all of them, failed to give a final conclusion as to the value; for instance, Mr. Edmond Powers testified:

"Q. Is the farm worth half as much, more than half or less than half since the taking? A. 'Well, the larger piece I would say would be damaged a third anyway. The smaller piece more than that.
"Q. Let us take the 31 acre tract that was severed on the south side. Before the taking it was worth $300.00 an acre, and that would be about $9,300.00. What in your opinion is the damage to the 31 acre tract by reason of the taking? A. I would say it was cut in half.
“Q. That would be about $4,500.00? A. I just don’t know what you would do with it.”

Mr. Powers was not asked to give his totals but we believe the jury had little difficulty in obtaining the totals. As shown by the discussion above, they seemed to wield sharp pencils when it came to figures.

Mr. H. K. Gayle testified in similar fashion.

. Mr. Charles A. Julian, after placing acreage values, testified that the 113 acre tract and the 31 acre tract had been damaged at least fifty per cent, while Mr. Hugh Moore Sr. placed a twenty-five per cent depreciation on the two pieces.

Mr. Ambrose Dudley testified as follows:

“Q. Based upon your knowledge of the farm, the production record of the .farm and comparable sales, did you form any opinion as to the fair and reasonable market value of the farm as of December 1, 1958? A. Yes, I did.
“Q. Assuming that the farm was being sold by someone who wanted to sell it — a willing seller and a willing buyer, Mr. Dudley, what in your opinion was the fair and reasonable market value of this farm immediately before the taking of a portion of it by the Highway Department ? A. The value on the farm, $41,000,00.
“Q. How much is that per acre? A. That is $250.00 an acre.
“Q. And what in your opinion is the value of the remainder after the taking? A. $21,000.00”

The jury would have been well within their rights to base their conclusion upon the testimony above quoted but, as we have pointed out, even if the answers of the other witnesses were not in the best possible form, still the jury was able to obtain the proper form by simple arithmetic.

After consideration of the entire record we have concluded that we should not substitute our opinion for that of the jurors who apparently understood the testimony given very well and, in addition, viewed the premises before returning their verdict.

Finally appellant insists that ' the court erred in permitting appellees to.introduce evidence concerning diminution in the amount of net profits from the farm after the taking. It is true that in Kentucky Water Service Co. v. Bird, Ky., 239 S.W.2d 66 we held that it was permissible to introduce evidence of the gross profits of a farm because in that way the farm’s productivity might be gauged and measured in dollar value. It was indicated in the same opinion that evidence as-to net profits was not acceptable. However when the whole record is considered and it sustains the jury’s verdict we are forced to the conclusion that the introduction of such evidence was not prejudicial and the judgment should not be reversed because of this one small, and we thing inconsequential, error.

The judgment is affirmed.