author: BELL, Chief Justice.

text:
    Jerry Richard MANSELL, Appellant, v. Norma HENDRICKSON et al., Appellees.
    No. 14816.
    Court of Civil Appeals of Texas. Houston.
    June 29, 1967.
    Rehearing Denied Aug. 24, 1967.

      Carey Williams, Houston, for appellant.
    D. L. McClure, Jim Brannon, Houston, for appellees.
   BELL, Chief Justice.

Mrs. Norma Hendrickson, administratrix of the estate of Jack Leroy Hendrickson, Deceased, brought suit in behalf of herself, Jack L. Hendrickson, Jr., and Michael Hendrickson, the minor children of Jack Leroy Hendrickson, Sr., and Mr. and Mrs. Ralph Hendrickson, the father and mother of the deceased, against Jerry Richard Mansell, Herder Truck Lines, Inc., and Raymond Kloesel, to recover damages resulting from the death of Jack Leroy Hendrickson. Mr. Hendrickson was killed in an automobile collision that occurred on the Eastex Freeway in Houston on January 24, 1961. Trial was to a jury, but the trial court sustained a motion for an instructed verdict in favor of all defendants except Jerry Richard Mansell. Appellees make no complaint of such action. The jury convicted appellant Mansell of negligence in the particulars hereinafter mentioned. The court rendered judgment in favor of the appellees in the amounts found by the jury, the amount for each being as follows:

1. Norma Hendrickson $77,149.00
2. Jack L. Hendrickson, Jr. 20,000.00
3. Michael Ray Hendrickson 25,000.00
4. Mr. and Mrs. Ralph Hendrickson 5,000.00

The jury found appellant negligent in failing to keep a proper lookout, in driving at an excessive rate of speed, and in failing to make proper application of the brakes on his vehicle. Each negligent act was found to be a proximate cause of the collision. The jury found, however, that at the time of and immediately before the collision appellant did not drive his vehicle from one lane of traffic to the other.

The jury found that the deceased did not change the course of his pickup truck and move to the right just before the collision. This was the only contributory negligence issue submitted, though appellant requested others.

On the night of January 24, 1961, appellant was driving his Volkswagen north on Eastex Freeway between eleven and eleven thirty o’clock. At some point between the Griggs Street entrance to the Freeway from the east and the Lyons Avenue exit from the Freeway on the east the Volkswagen and a pickup truck were in collision. This is what we refer to as the first collision. There were no witnesses to this collision. Appellant asserts he remembers nothing about what happened, and Dr. Greenwood gave it as his opinion, based on injuries received by appellant and what had been told him about appellant’s claim of inability to remember anything about the collision, that appellant was suffering from retrograde amnesia. Dr. Greenwood had never examined appellant. We, therefore, have a circumstantial evidence case. We must find the facts concerning the first collision largely from the physical evidence found at the scene.

Eastex Freeway is a six-lane highway running in a north-south direction. There are three lanes of travel on each side of an esplanade. Each lane is 12 feet wide. At a point between the Griggs Street entrance and the Lyons Street exit the collision occurred. The distance between such entrance and exit is,.according to the investigating officer, about three long city blocks. The collision occurred nearer the Lyons Avenue Exit. The point of impact was 15 feet west of the east curb. Thus, it was about 3 feet west of the line (and there were lines marking the lanes of travel) marking the east side of the middle lane of travel going north. Both the Volkswagen and the pickup truck skidded across the esplanade into the lanes for southbound traffic, where they ‘‘Collided with the Herder truck, driven by Kloesel in the inside lane. This is referred to as the second collision.

The evidentiary story begins at the automobile repair shop of Mr. Alderson. Appellant had taken his Volkswagen to have damage repaired that had occurred in a previous accident. When appellant first came about 3 or 3:30 the car was not ready and he was told to return about 5:30 or 6 o’clock. When he returned, the car was not ready. He was somewhat unhappy; appeared to be drinking, and left saying he would' return in a little while. Finally he returned about 8:30 or 9. At this time appellant appeared to be drinking pretty heavily. Mr. Alderson didn’t want to turn the car over to him. His face was flushed and Mr. Alderson smelled liquor on his breath. However, he turned the car over to appellant about 9 o’clock p.m. Ald-erson would not say whether he was intoxicated or was incapable of driving a car, but he did say he felt appellant should not drive. A previous statement of Mr. Aider-son was used in an effort to impeach him concerning whether appellant had been drinking.

Mr. Mansell lived and worked at Cleveland. On the afternoon of the day of the accident appellant came from Cleveland with a friend. On the way to Houston the friend bought some whiskey. Appellant testified that he had one drink of about an ounce or two on the way in and this was all he drank on that day. The balance of Mansell’s testimony just dealt with his activities January 24 and really shed no light on the collision. We only note that he testified he drove down Navigation Boulevard to Chartres Street, which latter street feeds into the Eastex Freeway. He started to get on the Freeway via Chartres, and feeder street. Mr. Bailey, his friend, was at this point driving his own car but went on ahead. He understood Mr. Bailey did not see the collision. Mr. Bailey did not testify. He was not subpoenaed. He was called to see if he could testify but was, so appellant reported, unable to get off from work. Mr. Mansell estimated it was from one-half to one mile from where he entered the south end of the Freeway to where the collision took place. The last thing he remembered prior to the accident was being on the feeder street. He did not remember actually getting on the Freeway. He was injured in the accident, was in the hospital about a month, and was off work about three months.

The controlling testimony comes largely from Mr. McGill, the City of Houston Police officer who made the investigation of the accident. He received the call at 11:37 p.m. The scene of the collision was in the 1200 block of Eastex Freeway. The point of the collision was just south of the Lyons Avenue exit. The lanes of traffic were well marked. The esplanade dividing the north and southbound traffic is about six inches high, has a curbing and there was dirt filling between. When he got there the Volkswagen was astride the esplanade headed in a southerly direction. The Chevrolet pickup truck was on the west shoulder of the Freeway facing west and a little to the northwest of the Volkswagen. Hendrickson was lying on the Freeway and was semi-conscious. McGill was unable to talk to him because of his condition. He was sent to the hospital in the first available ambulance. Appellant was lying partially out of his car with only his feet still in his car. He appeared fairly seriously injured. He was sent to the hospital in the second ambulance.

The officer reconstructed the accident from tracing the path of the Volkswagen and the pickup truck from the point of impact between them to where they came to rest. This was done by following the skid marks on the pavement. As previously stated, the point of impact was in the center lane for northbound traffic 15 west of the east curb line. The point of impact was located by tracing the skid marks laid down by the Volkswagen prior to the impact. From the initial point of impact, because of the characteristic width of Volkswagen tracks, he was able to trace them to the point of the second collision. From the initial point of impact the vehicles went into a side skid in a northwesterly direction, to and across the esplanade. There was a small amount of debris, but no glass, but the point was located by following the Volkswagen skid marks that ran straight north for a distance and then the sideways skid began. The first skid marks straddled the mark between the middle and east lanes of travel. The marks were approximately straight. There was then the side skid for 94 feet to the esplanade and 41 feet in the inside lane of south-bound traffic to the point of the second collision.

The damage, on initial impact, to the pickup was to the right rear side. He could not locate the damage to the Volkswagen caused by the initial impact because its front was so badly damaged by the second collision.

The rear bumper on the pickup, as shown by pictures introduced, was sharply rounded toward the front on each side. On the right side, near the end of the rear bumper of the pickup, there was paint resembling that on the Volkswagen. Too, the right side of the bumper was slightly bent. In addition to the outside of the bumper being slightly damaged, it also seemed to be pulled back slightly. Appellant told McGill he had had a few beers. He had the odor of alcohol on his breath, both at the scene and at the hospital. His eyes were bloodshot and his face was flushed. His speech was slightly slurred. Appellant had received some facial injury and had lost some teeth. He exhibited characteristics, of a person who was very near intoxication.

After the initial impact and all during the side skid to the northwest, the skid marks left by the Volkswagen were on the east side of those left by the pickup. Based on the physical evidence, it was the officer’s opinion that after the initial impact until the second collision the cars were locked together. There was also a dent in the right rear fender of the pickup. From examining appellees’ Exhibits 7, 8, 9 and 15 and appellant’s Exhibits 2 and 3, all of which are photographs of the right rear, particularly the fender, of the pickup, a pronounced dent appears at the top edge of the fender that would seem to be unrelated to the extensive damage done to the right front side and door of the pickup. Said Exhibits 7, 15 and 3 show damage beginning near the lower part of the fender with a groove extended upward.

Police Officer Chance helped investigate. His testimony is really not enlightening because he was asked few questions. He did confirm the point of impact and the skid marks as related by McGill. He testified that at the scene of the collision he smelled the odor of alcohol on appellant, but he did not feel he was intoxicated. Mr. Chance was primarily handling traffic movement at the scene.

On the day of his death deceased was working at the Manolia Park Garage of the Houston Lighting & Power Company located at 104 North Greenwood. This would be just off Canal Street at the 5200 block. Canal runs generally in an east-west direction. This would be some distance east of the; Freeway." • H-e- had worked for that company continuously for ten years. He was a journeyman mechanic. His earnings for 1960 were $5,561.10. At that time he was making $2.69 per hour. Pay for overtime was either time and a half or double, depending on the period of the day or night the hours were put in. Since deceased’s death there have been two increases in pay for journeymen mechanics. In 1964 the hourly pay was $3.04 and in May, 1965 this was increased to $3.15. For January, 1961, the pay for deceased’s work up to his death was $687.97.

Mrs. Hendrickson testified that they lived near Spring, which is a community on U. S. Highway 75 located in north Harris County. Highway 75 is west of the Freeway. She and Mr. Hendrickson were married April 1, 1947, and lived together continuously until his death. She was born November 15, 1929. Mr. Hendrickson was born February 5, 1927. Three boys were born to the marriage, but one of them died prior to trial. The surviving children were: Jack, Jr. and Michael Ray. Jack, Jr., was born January 9, 1948. Michael Ray was born August 26, 1951. Deceased had been working at this particular location for about a year. Mrs. Hendrickson would from time to time ride with him to and from work. He usually drove on Canal to the Eastex Freeway and on the Freeway to Lee Road, and then home by what they call the “back way”. We judicially know that Lee Road is some distance north of the point of the collision. She did not, of course, know the route he traveled on his way home. Obviously, however, he was on the Freeway but the evidence does not show where or exactly when he entered the Freeway.

Without quoting each point of error bearing on the issues submitted inquiring as to negligence of appellant, it suffices to say that appellant contends there was no evidence of probative force authorizing the issues or the proximate cause issues. His approach is that there was no evidence showing any negligence that caused the first collision^. and nothing showing that any negligence, if there., was any at all, that proximately caused the death of deceased who was in all probability actually killed in the second collision.

In a circumstantial evidence case the burden is on the plaintiff to establish that under all circumstances in evidence the ultimate facts as found by the jury on issues submitted by the court probably occurred. It is not necessary that he exclude that it might possibly have occurred in another manner. It is a matter of balancing probabilities. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; Burlington-Rock Island Ry. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723; Collier v. Hill & Hill Exterminators, 322 S.W.2d 329, 73 A.L.R.2d 1141, (Tex.Civ.App.), n.w.h.

We have recited the evidence above and it clearly shows that at the time of the impact the deceased was wholly in the center lane of traffic proceeding north. The pickup he was driving was hit from the rear by the Volkswagen that was traveling astride the mark dividing the east and middle lanes of travel. The evidence shows that the pickup was hit at the right end of .the rear bumper. There were skid marks laid down by the Volkswagen just before the collision. We do not know just when the pickup entered the Freeway, but on the basis of the evidence it probably entered at Griggs Street. Whether it was at that time ahead of the Volkswagen, we do not know. However, even if it was not, but later passed the Volkswagen, would seem to make no difference under the facts here because the pickup had gotten wholly in the center lane of traffic. There is nothing to show it cut in front of the Volkswagen suddenly because no evasive action by the Volkswagen is indicated. The first collision occurred a few hundred feet north of the Griggs Street entrance and nearer the Lyons Street exit. There would have been no reason for the pickup to turn off at Lyons. Even if he were doing so, the probability is the cars would have skidded northeast or east instead of northwest. We think in all probability, based on the circumstances in evidence as shown by the physical facts, that the appellant, who had been drinking heavily, failed to discover-the pickup ahead of him in time to stop his car at the speed he was going. The pavement was dry as it had not been raining. The highway is a straight one. There was nothing to keep appellant from seeing the pickup. With the pickup ahead that appellant was overtaking, that he should see, it could reasonably be inferred that if he was going to drive partially in the middle lane he was going too fast to stop to avoid a car using either lane because he was unable to do so. The reasonable inference could be drawn that when the Volkswagen hit the right edge of the pickup bumper, the bumpers overlapped. This is particularly true in the light of the damage to the right rear fender of the pickup. It is reasonable to infer from the evidence that the bumpers became locked and that was how the pickup bumper was pulled slightly backward.

We are of the view that there was evidence of probative force to call for the submission of issues on appellant’s excessive speed and his failure to keep a proper lookout, and that the jury’s answers find support in the evidence and that the answers are not contrary to the overwhelming weight and preponderance of the evidence.

It is unnecessary for us to discuss the question of proper application of brakes.

Appellant complains there is no evidence of casual relation between the deceased’s death, which undoubtedly occurred when his pickup and the Volkswagen were hit, as above related, by the Herder truck. Appellant says there is no finding that appellant’s negligence caused the second collision or the death of the deceased. He had objected to each proximate cause issue because it merely inquired if the preceding negligent act was “a proximate cause of the collision in question.” The effect of this, it is urged, since this was an action for wrongful death and there were two collisions, was to omit an ultimate or controlling issue, that is, which collision caused the death.

It had been stipulated that death resulted from a “collision or series of collisions”.

The court had defined “proximate cause” as follows:

“By the term ‘proximate cause’, as used in this charge, is meant a cause which in a natural and continuous sequence, unbroken by any new and independent cause, 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 of an event.”

Here under the facts the negligent acts of appellant, that continued to operate, drove the pickup into the path of the oncoming truck. He should have foreseen some such or similar result. There was no legally new and independent cause to break the negligence causing the first collision. The original cause in a natural and continuous sequence produced the second collision and the latter would not have happened if the appellant’s negligence had not set in motion the whole event.

The court did not err in refusing to submit appellant’s requested issues as to whether deceased failed to keep a proper lookout and was driving at an excessive rate of speed. There was no evidence of probative force raising such issues or the related proximate cause issues.

There was no error in the court rendering judgment for an amount of damages in excess of that prayed for under the peculiar facts of this case. The prayer was for $126,100.00 for damages resulting to the appellees because of the wrongful death of deceased. The total amount 'of the judgment was $127,149.00. The difference is represented by property damage and funeral expenses. The statement of facts reflects an agreement that these amounts could be added to such amount of damages as the jury found were suffered by Mrs. Hendrickson from the death of her husband.

Appellant by one point complains • of the excessiveness of damages as to each appellee and has suggested certain remitti-turs. We have read and carefully considered the evidence bearing on damages as to Mrs. Hendrickson and the children and find them not to be excessive. The judgment as to them will be affirmed.

However, we find the award of $5,000.00 in favor of the parents, Mr. and Mrs. Ralph Hendrickson, to be excessive in the amount of $3,000.00. If, within fifteen days from the date hereof a remittitur of $3,000.00 is filed the judgment will be reformed so as to award them $2,000.00, and, as reformed will be affirmed. If the remittitur is not so filed, their cause of action will be severed and the cause as to them will be reversed and remanded.

On Filing of Remittitur

On June 29, 1967, we indicated by an opinion in writing that if appellees Mr. and Mrs. Ralph Hendrickson would file a remittitur of Three Thousand and No/100 ($3,000.00) DOLLARS on or before July 14, 1967, the judgment of the trial court would be reformed and, as reformed, would be affirmed; and that otherwise the cause of action of such appellees would be severed and the cause as to Mr. and Mrs. Ralph Hendrickson would be reversed and remanded. Such appellees have filed the suggested remittitur of THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS.

Accordingly, as of this date, the judgment of the trial court in favor of these appellees, Mr. and Mrs. Ralph Hendrick-son, is reformed by deducting the amount of THREE THOUSAND AND NO/100 ($3,000.00) DOLLARS from the judgment recovered by said appellees, and, as so reformed, is affirmed.

All of the costs of appeal will be taxed against the appellant. The trial court costs will be taxed as they were taxed in the court below.

Appellant has already filed his motion for rehearing and a motion for conclusions of fact and law. They are each and both overruled.

Reformed and affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Albert M. BILLINGSLEY, Appellant, v. Harley R. WALKER, Individually, etc., et al., Appellees.
    No. 15082.
    Court of Civil Appeals of Texas. Houston.
    Aug. 24, 1967.

      Stuart Haynsworth, Houston, Sacco-manno, Clegg & Martin, Houston, of counsel, for appellant.
    Stanley B. Binion, Houston, Reynolds, White, Allen & Cook, Houston, of counsel, for appellees.
   BELL, Chief Justice.

Appellant sued Harley R. Walker and Gulf Construction Company, a corporation, in their individual capacities, and also sued Walker, Joe H. Reynolds and Helen Carlin Walker as Trustees of a profit-sharing trust created by Gulf Construction Company. The object of the suit was to recover what appellant contended was his vested interest in the trust together with earnings thereon to March 31, 1961, which he asserted to be $11,547.10, plus earnings on his vested portion from March 31, 1961, the amount of the latter being unknown. He also sought to recover $1,000.00 salary, but this is not involved on appeal. Trial was to a jury but at the conclusion of the evidence the trial court sustained appel-lees’ motion for an instructed verdict in their favor. On the verdict, rendered in conformity with such instruction, the court rendered a judgment that appellant take nothing.

The theories of appellant, as shown by his pleading and his brief here, are that he has a vested right, because of the length of his employment with Gulf Construction Company, to the amount set aside to his account as of March 31, 1959, together with earnings thereon since that date, and that the trust has become dry or passive and that distribution should be made to the beneficiaries. He contends in his argument in his brief that at least the provisions of the trust agreement relating to whether an interest becomes vested are ambiguous and evidence might resolve the ambiguity or at least raise a fact issue for the jury as to what was intended concerning the time of the vesting of his interest.

Appellees answered by filing a general denial, the statutes of limitation as prescribed by Articles 5526 and 5527, Vernon’s Ann.Tex.Civ.St. and the one year statute as applied to any claim based on any oral agreement. Further, they pled the trust, which was established effective as of April 1, 1953, was to last until twenty-one years after the death of the last surviving participant, or on action by the Board of Directors of Gulf Construction Company or upon said Company’s being adjudicated a bankrupt. It was alleged that neither event had occurred. Further, it was alleged that an employee’s interest would vest only if the Company should make contributions for five successive years and the Company was not required to make any contributions and that contributions had not been made since 1956. The result of these allegations is that contributions were made for only four years.

The basis of appellees’ motion for instructed verdict was that any claim appellant had arose August 24, 1959, when he left the Company as an employee and suit was not filed until February 9, 1965, and is therefore barred. Further, it was asserted in the motion that there was no evidence to support recovery because the trust agreement provided that an interest should vest only if the Company made contributions for five years or failed to make a required contribution and the evidence showed the Company was not required to make any contribution and that it had made contributions for only four years.

The record does not reveal upon what ground the court sustained the motion.

The case is before us only on the transcript which contains the pleadings, the motion for instructed verdict and the judgment. There is no statement of facts so we are unable to appraise appellant’s complaint that the court erred in granting ap-pellees’ motion for instructed verdict.

Appellant contends that there are judicial admissions by appellees that at least show the relevant portions of the trust agreement and show an ambiguity concerning when his interest vested and parol evidence might clarify this and show the real meaning of the trust instrument.

We are unable to agree. The trust agreement does not appear in the record. The provisions set out in appel-lees’ pleadings and motion for instructed verdict and appellees’ statements made in ■connection therewith show no vested interest in appellant. The quoted provisions show no ambiguity but are subject only to the construction given by appellees. Too, it is noted that the court’s judgment recites that evidence was introduced. There being no statement of facts, and the appellees having cast the burden of proof on appellant by filing a general denial, appellant may have wholly failed to raise a fact issue on any of his theories including any explanation favorable to him on any claimed ambiguity.

Affirmed.


author: SHARPE, Justice.

text:
    Alex ANGERSTEIN, Appellant, v. Dolly ANGERSTEIN, Appellee.
    No. 297.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 3, 1967.
    Rehearing Denied Aug. 31, 1967.

      Clyde W. Woody, of Woody & Rosen, Houston, Charles W. Tessmer, Dallas, for appellant.
    Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, Armond G. Schwartz, Hallettsville, for ap-pellee.
   OPINION

SHARPE, Justice.

This appeal is from a judgment granting a divorce to Dolly Angerstein, appellee, plaintiff below.

On April 15, 1965 we dismissed a prior appeal of this cause because the judgment there involved, dated January 29, 1965, was not final and appealable. Angerstein v. Angerstein, 389 S.W.2d 519, (Tex.Civ.App. Corpus Christi, 1965, n.w.h.). The instant appeal by Alex Angerstein is from a nunc pro tunc judgment rendered by the trial court on November 2, 1966.

Appellant’s brief contains three points of error, the first two of which assert that the nunc pro tunc judgment was not validly rendered. Upon oral argument of this case, appellant agreed to withdraw his first two points, and thereafter the parties filed written stipulation so providing. No question as to the finality or appealability of said judgment is presented on the record before us. Therefore, we are now concerned only with appellant’s point three and appellee’s reply thereto.

Appellant’s third point reads as follows:

“The trial court erred in granting Ap-pellee a divorce, since the testimony before the court in support of Appellee’s Petition for Divorce was not full and satisfactory.”

Appellee’s third counterpoint is as follows :

“The evidence before the Court in support of Appellee’s Petition being full and satisfactory, the Trial Court did not err or abuse his discretion in granting Ap-pellee judgment for divorce.”

The trial court filed sixteen findings of fact and four conclusions of law. Findings numbers 14, 15 and 16 and conclusions 2, 3 and 4 do not relate to the divorce issues and are not material to this appeal. Findings 1-13 and the first conclusion of law read as follows:

“FINDINGS OF FACT
“1. This Court has venue and jurisdiction of the parties and cause of action made the basis of this suit.
2. That plaintiff and defendant were legally married on March 12, 1919.
3. That there were two children born of this marriage, both of whom are adults over the age of twenty-one (21) years.
4. That plaintiff and defendant separated on September 28, 1961, and have not since lived together as husband and wife.
5. That the defendant requested a divorce from plaintiff on more than one occasion prior to their separation, stating that he hated her and loved her daughter-in-law more than anyone.
6. That defendant accused the plaintiff of immoral conduct and going to a place of prostitution.
7. That the defendant caused the plaintiff to be arrested and incarcerated against her will in the psychiatric ward of Citizens Memorial Hospital in Victoria, Texas, during which time the defendant cursed plaintiff and verbally abrused her and approached her in a menacing manner.
8. That about one year prior to the separation of plaintiff and defendant, defendant told plaintiff ‘God damn your soul, I hope you rot.’
9. That the defendant cursed plaintiff on numerous occasions and indicated and stated that he had no love for her.
10. That the defendant has insisted that plaintiff is mentally ill and needs psychiatric treatment and has indicated that he wants her back so that she can be given psychiatric treatment.
11. That the evidence shows conclusively that the plaintiff is not mentally ill and there is no showing of need for psychiatric treatment.
12. That the conduct of the defendant toward plaintiff has produced, and was calculated to produce, fear, apprehension, nervousness, sleeplessness and weight loss in plaintiff.
13. I find that the defendant cursed and threatened plaintiff’s sisters.”
“CONCLUSIONS OF LAW
“I conclude that the acts of defendant in cursing his wife on numerous occasions, expressing his lack of love for her, requesting her to get a divorce, accusing her of immoral conduct, requesting her to seek psychiatric treatment, causing her to be arrested and placed in a psychiatric ward, continually insisting on her need for further psychiatric treatment in the face of undisputed medical evidence indicating that the same is not necessary, approaching her in a threatening manner while cursing her and generally treating her in an abrusive manner, constitutes the defendant guilty of such excesses, cruel treatment and outrages of such a nature as to render their living together insupportable.”

The testimony given by appellee and other witnesses supports the findings of fact made by the trial court. The testimony of appellant conflicted on many points with that of appellee, and was particularly contrary to findings 5, 6, 8, 9 and 13. Concerning finding number 7, appellant admitted that after appellee had left home and filed suit for divorce, he caused her to be arrested and incarcerated against her will in the psychiatric ward of Citizens Memorial Hospital in Victoria, Texas; however, appellant denied that he had cursed or verbally abused appellee while she was in the hospital. As to finding number 10 there was no substantial dispute, and it is supported by the testimony of appellant as well as appellee. Finding number 11 was strongly supported by the testimony of a psychiatrist and neurologist. Finding number 12 was not seriously disputed in the evidence.

Appellee testified in substance as follows : that she was married to appellant on March 12, 1919 and separated from him oh September 28, 1961; that there had been no reconciliation and the parties had not-lived together since then up to the date of her testimony on November 19, 1964; that she was sixty-nine years of age and her husband was seventy-two at the time of trial; that the parties had two grown married sons; that about the time of separation, appellant asked her for a divorce, as he had done many times previously; that she went to the home of one of her sons to make a telephone call where she overheard a conversation between her son and appellant and heard a statement about “putting me away somewhere”; that prior to that time appellant had told her she had been seen going into a house of prostitution, which accusation was denied by ap-pellee; that appellant cursed one of her sisters; that appellant would not buy her a television set nor an automobile to replace the 15 year old car which she had; that after she filed suit for divorce, appellant had her picked up by peace officers and placed in the psychiatric ward of the Citizens Memorial Hospital, Victoria, Texas; that she was treated by Dr. George Constant; that appellant came to visit her in the hospital, cursed her, started toward her, and a nurse had to intervene; that on prior occasions appellant told her he loved his daughter-in-law better than anyone else; that appellant said he didn’t love ap-pellee and would hate her until she died; that about a year before she filed suit for divorce, appellant told appellee he hoped her soul would rot; that appellee was afraid of appellant; that her health was affected; that her weight fell from about 140 pounds to around 114 when she left home; that appellant threatened to take her life about the time of the separation in 1961, and had made such threat before; that when she filed suit in September, 1961, appellee had concluded that she could not live with appellant any longer; that appellant’s conduct made it impossible to live with him.

Appellant testified, among other things, to the following: that for many years it had been his practice to arise at 3:00 o’clock in the morning, to leave the house shortly thereafter, and work until about 7:30 or 8:00 o’clock at night; that when he got home from work at night his wife would not be there; that for about twenty years appellee was gone from home every night playing canasta and would return from about 11:00 o’clock P. M. to 1:00 A. M.; that appellant asked appellee to not be out so much and to be home earlier, but he did not try to stop her from going out; that he seldom saw his wife during such period of time; that appellee wanted appellant to leave the doors unlocked after he went to bed, but appellant would not do this and would get up to let appellee in when she knocked on the door, and he didn’t see her except on those occasions; and after he went back to bed his wife would sit up and drink coffee. Appellant denied that he had ever cursed his wife; or that he had accused her of immoral conduct; or that he had stated he wanted a divorce; or that he had stated he loved his daughter-in-law more than his wife; and generally denied most of the testimony given by appellee. Appellant further testified that it was his position that everything appellee said was because she was operating under some delusions; that she didn’t intend to lie; that she was confused; that when appellee said that appellant had threatened her with a knife or gun or that he cursed her, that those things were figments of her imagination ; that he was concerned about his wife’s emotional problems and about getting her into a hospital; that she should be at home where he and his sons could help. Appellant said he did not want a divorce and could live harmoniously with his wife if she would go to a hospital and he treated for her emotional or nervous condition. Appellant conceded that after appellee filed suit for divorce and property division against him, he discovered that she was in Hallettsville; that he talked to a justice of the peace, the county attorney and the sheriff and arranged to have papers fixed up so that the sheriff would go and pick up appellee and take her to the psychiatric ward of a hospital; that this action was taken despite the fact that appellant was under a restraining order in the divorce case. There is no showing that any of these proceedings were valid or that appellant was accorded any kind of hearing before she was placed in the hospital.

Mrs. Gladys Brown, of Ft. Worth, Texas, a sister of appellee, testified among other things, that she and Mrs. Nelson, another sister, came to Victoria, Texas, in 1961 when appellee was in the Citizens Memorial Hospital, and talked to appellant about the matter; that when appellant was asked what was wrong, he stated that ap-pellee had sued for divorce, that he was going to put her in the hospital or put her away; that appellant stated “I am going to put her away because she is not going to have this property.” Mrs. Brown also testified that on such occasion appellant said that appellee had been seen going into a house of prostitution; that he kept cursing; that when Mrs. Nelson asked if there was anything wrong with appellee’s mind, appellant ultimately said that there was not, but “she is my wife and I can do with her as I GD please.”

Dr. George A. Constant, a neurologist and psychiatrist of Victoria, Texas, was called as a witness for appellee. His qualifications were stipulated. He testified in substance that he examined appellee in the Citizens Memorial Hospital at Victoria, Texas, from October 3rd to October 10th, 1961; that she was nervous, fearful, apprehensive and restless, but was well oriented as to time, place and persons; that she had no delusions nor hallucinations; that her reactions were normal under the conditions; that he took a history of ap-pellee from her husband and son which, according to them, showed emotional instability and included many related facts which were not favorable to appellee on that subject; that he examined appellee after she had been picked up under court order and brought to the hospital; that it is not unusual for a person who is involuntarily hospitalized to be in a state of nervous activity; that appellee’s reaction was not out of keeping with the situation; that her perception was normal and she accepted reality; that he treated her by psychotherapy and by giving her tranquilizers; that she improved rapidly after 24 — 36 hours; that after a week of examination and treatment his diagnosis was that appellee had a personality disturbance because of the situation she found herself in; that there was no psychosis or neurosis; that appellee said she and her husband were not getting along well and she felt the best thing to do would be to get out of the situation;- that after appellee was released from the hospital, she came to see him about her medication; that he recommended she stay on the medications he had prescribed for her until he saw her again; that he had made psychological tests on appellee and all they revealed was that she was of somewhat anxious and apprehensive nature; that ordinarily it requires about a week to work up a patient completely and for running of studies, observation and evaluation; that he made a complete examination of appellee; that he made a final diagnosis of a transit personality disturbance, which means that a person gets upset and disturbed because of a situation he finds himself in.

Mrs. Lena Beck, called as a witness by appellee, testified in substance as follows: that she was one of the nurses for appellee while she was in the hospital at Victoria, Texas, in October 1961; that appellant visited appellee several times; that on one of such visits the witness saw appellant with his hands in the air and cursing ap-pellee; that the witness walked between appellant and appellee, pushed appellee down on the bed and asked appellant to leave; that appellee was excited at that time; and that appellant then left the room.

In Robinson v. Robinson, 235 S.W.2d 228, 229 (Tex.Civ.App., San Antonio, 1951, n.w.h., opinion per Norvell, J.) the court in passing upon a contention that the evidence of cruel treatment was not of that full and satisfactory character required by Art. 4632, Vernon’s Ann.Civ.St., held as follows:

“This point raises a question of fact to be passed upon by this Court, and ‘It is our duty to determine as to the quality of the evidence in this respect.’ Mayen v. Mayen, Tex.Civ.App., 177 S.W.2d 240, 242. In determining whether or not the evidence meets the full and satisfactory-test, however, our position differs from that of the trial court in that this Court has no authority to pass upon the credibility of witnesses. Bell v. Bell, Tex.Civ.App., 135 S.W.2d 546; Mayen v. Mayen, supra; Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297; Moore v. Moore, Tex.Civ.App., 213 S.W.2d 724; Nix v. Nix, Tex.Civ.App., 218 S.W.2d 242; Ellis v. Ellis, Tex.Civ.App., 225 S W.2d 216.”

In Alexander v. Alexander, 373 S.W.2d 800, 803 (Tex.Civ.App., Corpus Christi, 1964, n.w.h.) this Court, speaking through-Chief Justice Green said:

“It is true that for a divorce to be properly granted on the gound of cruelty, under Article 4629(1), acts constituting excesses, outrages or cruel treatment must be established by full, clear and satisfactory evidence. However, the sufficiency and weight of the evidence necessary to meet these requirements must of necessity be left to the sound discretion of the trier of facts, subject, of course, to review by the appellate courts. McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459; Hogue v. Hogue, Tex.Civ.App., 242 S.W.2d 673; Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794; Daughtry v. Daughtry, Tex.Civ.App., 312 S.W.2d 957; McGinnes v. McGinnes, Tex.Civ.App., 322 S.W.2d 417; Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625; Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112; Armstrong v. Armstrong, Tex.Civ.App., 350 S.W.2d 348.
“As stated in McCullough v. McCullough, Sup.Ct., supra, ‘It is the settled law of this state that the cruel treatment provided by our statute as a ground for divorce is not confined to physical violence alone, but may consist of a series of studied and deliberate insults and provocations.’
“False charges of unchastity or infidelity made by a husband to his wife, or even a single deliberately false accusation, may constitute such cruelty as will entitle the wife to a divorce. Fomby v. Fomby, Tex.Civ.App., 329 S.W.2d 111; 20 Tex.Jur.2d, Divorce and Separation, Sec. 20, p. 368.”

See, also, Emerson v. Emerson, 409 S.W.2d 897 (Tex.Civ.App., Corpus Christi, 1966, n.w.h.), in which we affirmed the granting of a divorce to the husband under Art. 4629(1), V.A.C.S.

An examination of the entire record leads us to the conclusion that the evidence reaches the quality of being full and satisfactory and that the trial court did not err in granting the divorce.

Affirmed.


author: FRASER, Chief Justice.

text:
    Craig GILLILAND, Jr., Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, Ltd., Appellee.
    No. 5861.
    Court of Civil Appeals of Texas. El Paso.
    July 19, 1967.
    Rehearing Denied Sept. 6, 1967.

      Gerald B.- Shifrin, El Paso, for appellant.
    Hardie, Grambling, Sims & Galatzan, John A. Grambling, El Paso, for appellee.
   OPINION

FRASER, Chief Justice.

This is a lawsuit concerning a “homeowner’s policy”. Our examination of the record reveals that coverage for intentional injuries was excluded under the terms of the policy, and a further exclusion provides that coverage is not extended to any business pursuits of an insured except activities therein which are ordinarily incident to non-business pursuits. Plaintiff brought his suit claiming that the defendant insurance company failed to defend plaintiff Gilliland in an original action, and the said insurance company refused to pay any part of the $36,000.00 judgment resulting from the original case. Therefore, this lawsuit is concerned with an attempt by the plaintiff to recover for failure of the defendant insurance company to either defend plaintiff in said original lawsuit or to pay any part of the judgment rendered therein.

In said original case (Gilliland v. Pon Lip Chew, Tex.Civ.App., 401 S.W.2d 137), it is a matter of record that judgment was rendered in favor of Pon Lip Chew against plaintiff-appellant solely upon jury findings of an assault and battery, which was defined to the jury as an act of unlawful violence committed with intent to injure. The record from the original case also reveals that the incidents and occurrences which were litigated in said suit were matters occurring at or on the premises of appellant and during the usual business hours, and that Mr. Pon Lip Chew was examining vegetables or merchandise for sale at the time of the incident.

Appellant maintains that the judgment of the trial court in this matter was wrong because the trial court erred in holding as a matter of law that the injuries to Pon Lip Chew occurred during business pursuits of the insured and thus were not covered by the policy; that such holding by the court was actually a factual matter and should not have been decided in a summary judgment; that the court was in error in holding as a matter of law that the bodily injuries of Pon Lip Chew were caused intentionally by, or at the direction of the insured; that the court erred in granting its summary judgment because there were relevant and material fact issues; and lastly, that because appellee here was not a party to the said styled case, the court committed error in holding that these matters were properly disposed of by the original case and were therefore res judicata or constituted estoppel by judgment.

We think all of these points must be overruled because, as stated above, it is a matter of record that the trial court found the injury to have been intentionally caused and to have occurred during the normal course of business, either of which finding is a carefully set-out exclusion in the policy. Travelers Insurance Company v. Newsom, Tex.Civ.App., 352 S.W.2d 888 (ref., n.r.e.); United States Fidelity & Guaranty Co. v. Baldwin Motor Co., 34 S.W.2d 815 (Tex.Com.App.1931). We do not believe appellant’s point relative to res judicata to be applicable in the matter before us.

Appellant’s points are therefore all overruled, and the judgment of the trial court is in all things affirmed.


text:
    Bruce STEELE et ux., Ind. and as Next Friends, etc., Appellants, v. The CITY OF EL PASO, Appellee.
    No. 5851.
    Court of Civil Appeals of Texas. El Paso.
    July 19, 1967.
    Rehearing Denied Sept. 6, 1967.
    Collins, Langford, Pine & Coldwell, Robert S. Pine, El Paso, for appellants.
    Hardie, Grambling, Sims & Galatzan, Morris Galatzan, El Paso, for appellee.
   OPINION

FRASER, Chief Justice.

The appellants brought this action to recover damages against appellee, City of El Paso, arising from their home having been flooded with sewage, effluent and sludge on various occasions during the period between December 1962 and 1964. Appellants further maintained that a lift station had been constructed by appellee in July of 1963, and that after such new lift station was put in operation, sewage back-flooded into and on their property. Therefore appellants are taking the position that they were damaged by sewage and effluent during the years 1962, 1963 and 1964.

Appellants appear to have originated their lawsuit largely on the theory of negligence, and then finally based it on the theory of nuisance. We will not discuss the matter of negligence other than as it affects the matter of our consideration of the allegation of nuisance.

Appellants present one point of error in which they allege that the trial court erred in granting appellee’s motion for directed verdict because the appellants proved sufficient facts to support a recovery under the nuisance theory, and that same should have been submitted to the jury as a matter of law.

With regard to the facts, it appears from the record that during the summer months of 1964, one Marion Ryan, an employee of the Public Service Board, had made several trips to the sewage lift pump as a result of calls and complaints from the appellants. He states that on some occasions he found the pumps working and on other occasions they were not. He further testified that on one or more occasions when the pumps were not working, other operators of the Public Service Board had been down in the pumping station doing their ordinary daily check and maintenance; and lastly, that although on various occasions he had found the pumps and equipment in proper working order, that some two or more hours later, after another call from the Steeles, he went down and found that the pumps were turned off, with the result that there was no force to lift the sewage up to the next gravity level and which resulted in a back-flow of sewage into the Steele apartment building. This would indicate that some of the employees of the Public Service Board had been guilty of negligent acts which probably caused the sewage back-flow. There were, of course, suppositions and speculations on the part of Mr. Steele as to what may have caused the sewage back-flow at his apartment. It is elementary in the State of Texas that the operation and maintenance of a sanitary sewage system by a City is a governmental function and that a City is not liable for the negligent operation thereof, or the negligence of an employee thereof. Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992; Gregory v. City of Garland, Tex.Civ.App., 333 S.W.2d 869 (ref., n.r.e.).

We believe that the appellee is correct in its position that the non-liability of the City for the negligent acts of its employees while engaged in a governmental function cannot be eliminated by merely pleading that such negligent acts constitute a nuisance. This position is, in our opinion, upheld and sustained in the following cases which state that the danger, in order to constitute a nuisance, must be inherent in the thing itself and be beyond that arising from negligence in its use. The record does not indicate inherent danger was adequately pleaded or proved. Walker v. City of Dallas, Tex.Civ.App., 278 S.W.2d 215 (n.w.h.); Parson v. Texas City, Tex.Civ.App., 259 S.W.2d 333 (wr.ref.). Further, it has been held that merely pleading that the alleged negligent acts constituted a nuisance is not sufficient, and again the courts reiterate that the danger must be inherent in the thing itself and the damage, if any, must result therefrom, rather than the negligent acts of the employees of a city engaged in a governmental function. Gonzalez v. City of El Paso, Tex.Civ.App., 316 S.W.2d 176 (n.w.h.); Parson v. Texas City (supra).

It must be noted from the pleadings of appellants that they pleaded that the acts of negligence caused sewage flooding, and further pleaded the theory of nuisance. Situations of this type are unfortunate; but, in our opinion, the law in its present state is clear that one cannot collect from a city due to the negligent acts of any of its employees during the pursuance of a governmental function.

Appellant’s point is therefore overruled and the decision of the trial court is in all things affirmed.


author: PRESLAR, Justice.

text:
    Buck WILSON, Appellant, v. Henry WILLBANKS, Appellee.
    No. 5889.
    Court of Civil Appeals of Texas. El Paso.
    July 26, 1967.
    Rehearing Denied Sept. 6, 1967.

      Walker F. Means, Barstow, for appellant.
    Johnson & Dionne, Hart Johnson, Ft. Stockton, for appellee.
   OPINION

PRESLAR, Justice.

This is an appeal from a second trial of a case originally brought by appellee, as plaintiff, to cancel a written farming lease on the ground that appellant had not farmed the land in a good and farmerlike manner as required by the terms of the lease. Appellant filed a denial and cross-action alleging that he owned an undivided one-half interest in the land and farm equipment by reason of a partnership agreement between the parties, and that appellee held an undivided one-half interest in such lands and equipment in trust for the benefit of appellant. On the first trial, the trial court granted a directed verdict on the issue of cancellation of the farming lease and, upon a verdict on special issues found by the jury, rendered judgment for appellee on appellant’s cross-action concerning the partnership. This court reversed and remanded (393 S.W.2d 649), holding that the instructed verdict was improper in that a fact issue was presented for the jury on the question of the breach of the farming lease. On the trial from which this appeal is taken, a single issue was submitted to the jury, and it found that appellant had failed to farm the land in a good and farmerlike manner. Prior to this trial, appellee had amended to include a count in trespass to try title, and appellant again asserted his cross-action. The trial court instructed a verdict as to-the cross-action and entered a judgment canceling the lease and awarding appellee title to and possession of the land and equipment. We affirm.

The background of this litigation is that appellant Wilson previously held written leases, with an option to purchase on the land and equipment in question, which he assigned to appellee Willbanks, who exercised the options of purchase and obtained deeds and bills of sale. By written instrument dated April 24, 1963, Will-banks leased such land and equipment to Wilson for a term of years with an option to purchase. It was for cancellation of this lease that the suit was originally filed. By the terms of the lease Wilson was to farm the land and pay therefor one-fourth of the cotton crop and one-third of other crops as rent. By a provision of the lease he was obligated to farm the land in a good and workmanlike manner with the use of all his skills and his full ability. The jury found that Wilson did not meet his obligation in that regard, and such finding is supported by the evidence, so that the trial court was correct in declaring the lease canceled. In arriving at this conclusion, we have followed the familiar rules that in passing on “no evidence” points, only that evidence which supports the finding is considered, and in passing on sufficiency, or weight and preponderance, of the evidence, all evidence bearing on the finding is considered. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957).

The trial court properly granted appellee’s motion for instructed verdict in awarding him title and possession of the land in question. Appellee pleaded trespass to try title and made out a case of record title which entitled him to such judgment. His documentary evidence included assignments to him by appellant of options to purchase; the exercise of that option by duly recorded deeds to the realty and bills of sale to the farming equipment in ap-pellee’s name as sole grantee; mortgage liens for the purchase price executed by appellee as owner to third parties; two affidavits by appellant stating that he owned or claimed no interest in the property; and the farming lease executed by appellee as owner and appellant as lessee. Appellant offered no evidence of any record title in himself or to refute the record title exhibited by appellee. It is stated in Portman v. Earnhart, Tex.Civ.App., 343 S.W.2d 294, ref., n.r.e.:

“The spirit of the registration laws is antagonistic to title by inquiry, reputation, hearsay or other character unless the ends of justice and common honesty requires recognition of a title outside the records which the State has provided for prudent purchasers. Strong v. Strong, Tex.Com.App., 128 Tex. 470, 98 S.W.2d 346-348,109 A.L.R. 739.”

The record reflects that during the crop year 1962 the parties hereto farmed the land in partnership, and appellant, by his cross-action, maintains that it was purchased by them as partners, but that the deeds were taken in appellee’s name in order to obtain financing, and therefore ap-pellee holds one-half of the land in trust for him. To establish his equitable title to one-half of the land, appellant offered oral testimony and documents consisting of canceled checks and notes by the partnership and evidence of a joint bank account. This and other documentary evidence offered was excluded by the trial court, and all is before us in appellant’s bill of exceptions. A careful examination of this evidence, and the testimony offered in explanation of it, leads to the conclusion that it was properly excluded as not being the proof allowed or proper to establish a title outside of the record title. Appellant says that the excluded evidence establishes a resulting trust in favor of him. A resulting trust is created by the payment of consideration at the very time of the purchase transaction, or by the claimant binding himself at that time to pay in the future. As said in Bun-nell v. Bunnell, 217 S.W .2d 78, at page 82:

“In the case of Wright v. Wright, 134 Tex. 82, 132 S.W.2d 847, 849, points 4-5, opinion by Commission of Appeals, in speaking of a resulting trust, it held: ‘It is a familiar law that a trust must result, if at all, at the very time a deed is taken and the legal title vested in the grantee. No oral agreement before or after the deed is taken, and no payments made after the title is vested, will create a resulting trust, unless the payments are made in pursuance of an enforceable agreement upon the part of the beneficiary existing at the time the deed is executed. The trust must arise out of the transaction itself. The fundamental idea is that the beneficial title follows consideration, and unless the one claiming the trust has paid the consideration, or become bound for same, at the very time of the making of the deed, no trust is created.’ ”

None of the proffered evidence coincides with the date of purchase of the lands in question, and none shows any payment by appellant on the purchase price, nor any obligation on his part to pay thereon in the future.

Appellant says the agreement entered into by the parties on April 24, 1963 shows a partnership. An examination of such instrument shows it to be a landlord and tenant arrangement for production of agricultural products in much the usual terms of such an arrangement, except for one paragraph regarding the application of any balance of profits to the purchase price. It is this paragraph which appellant urges as showing a partnership, while urging the rule of law that the instrument must be construed within its four corners. There are no pleadings justifying any other construction, and as so construed it is a lease of land and equipment for a term of years, with an option to purchase. It recites that appellee is the owner and appellant is lessee, and it was so executed by each. It does not contain the elements of a partnership agreement.

We have reviewed all assignments of error, and finding no reversible error, the judgment of the trial court is affirmed.


author: STOCKARD, Commissioner.

text:
    Marthalea Montfort POPE, Respondent, v. Wendell COX, Appellant, and Homer Brumley, David Brumley, Caroline Brumley and the Security Bank of Branson, Defendants.
    No. 52499.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.
    Neale, Newman, Bradshaw, Freeman & Neale, Flavius B. Freeman, Jerry L. Red-fern, Springfield, Peter Rea, Branson, for respondent.
    Marvin Motley, Branson, for appellant.
   STOCKARD, Commissioner.

By her petition, in two counts, plaintiff sought to quiet title to certain land in Taney County, Missouri, and to cancel and have declared void an option in favor of defendant to purchase plaintiff’s interest in the land. By his pleadings defendant sought specific performance of the option to purchase, and if successful to partition. The trial court held the option to be of no effect, and denied defendant’s request for specific performance, and defendant has appealed. Appellate jurisdiction is in this court. Beets v. Tyler, 365 Mo. 895, 290 S.W.2d 76.

Plaintiff was the owner of an undivided five-ninths interest in a tract of land containing approximately 160 acres, known as the Montfort homestead, where she had lived for many years. However, for seven months in 1964 she rented and operated a cafe and beer tavern, living in a small back room of the building, located north of Branson on Highway 65, and known as the Skyline.

Defendant was a clothing salesman who had recently moved into the area and purchased 100 acres of land adjoining plaintiff’s land upon which he operated or planned to operate a rodeo. He had become acquainted with plaintiff during the latter part of July or the first part of August, 1964, when he stopped at the Skyline. He testified that about September 21 plaintiff called him and wanted to borrow $150 to make a down payment on a trailer. Although defendant had known plaintiff for only a short time he agreed to loan her the money because, in his words, he “wanted to get better acquainted with her” and thought that “later on” he might be able to purchase plaintiff’s interest in the Montfort homestead. Defendant went to Mr. Marvin Motley, his attorney, gave him a check for $150 and instructed him to obtain that amount of cash and take it to plaintiff and have her sign a note due in 60 days. On September 23 Mr. Motley took the money to plaintiff at the Skyline and obtained her signature on the note. Mr. Motley testified that plaintiff asked him if defendant would loan her additional money, and that she said she wanted the money because she owed $500, she had purchased the trailer, she had “a number of insufficient checks in Moberly,” she was on a “cash basis with the beer people,” and she was tired and would like to get away and take a vacation. This request was communicated to defendant by Mr. Motley. Thereafter on September 24 or 25 defendant had two conversations with plaintiff at the Skyline. According to defendant, plaintiff said she wanted to borrow “around $2,000 at that time” so she could take a trip to Nevada and pay some debts. Defendant told plaintiff that he “would give her the money if she would give [him] an option to purchase the property [Montfort homestead] and also a mortgage,” and that he made her a “firm offer” of $4,500 for her fractional interest. He later directed Mr. Motley to prepare forms of an option to purchase, a note, and a deed of trust. On September 28 defendant went to the Skyline and plaintiff signed the option to purchase. She stated that she could not leave the Skyline so she called Foster Plummer, a notary public, on the telephone, told him she had signed the option, and asked that he notarize her signature. Apparently she did not sign the note and deed of trust at this time. Defendant took the option to Mr. Plummer who signed as notary, and the instrument was delivered to Mr. Motley. Defendant testified that when the option was signed by plaintiff they were in a booth at the Skyline, and in his opinion “she was perfectly sober,” there was no evidence that she had been drinking, and her ability to answer questions was “fairly good.”

An error was discovered in the description of the land as set forth in the option. Defendant does not claim any rights by reason of this option agreement. Later during the day of September 28, defendant returned to the Skyline with a new option agreement, a form of a note in the amount of $2,000, and a form of a deed of trust. He took with him Mr. Boyd Fitch, a notary public. They met with plaintiff in a small room at the back of the Skyline which defendant described as a combination office and bedroom. At the time plaintiff was dressed in a robe. Defendant testified that he and Mr. Fitch were there forty-five minutes to an hour, and that plaintiff signed the three instruments, and that. Mr. Fitch acknowledged her signature on the option and deed of trust. According to defendant, plaintiff “looked at each document” and said, “I know about these papers, I have been instructed by Mr. Motley what they contain, I don’t need to read them clear through.” Defendant testified that plaintiff did not drink anything while he was there, and that he did not see anything to drink. Plaintiff wrote a note on a portion of a cigarette carton, which defendant testified was a message to Jim Owen “advising him that I could have the pasture on the farm for my livestock.” This was not, however, what the note said. It was as follows: “I want Wendell to get the key from you Jim, he’s going to [the word appears to be ‘finally’] clean the spring to use it, let him in, it’s all his!! Monty!! ” Defendant gave plaintiff a check in the amount of $1,-850 for the $2,000 note, and he explained that the difference represented the $150 he had previously given her for the trailer. Plaintiff gave the check back to defendant and told him to give it to Mr. Motley to deposit to her account in the Security Bank.

Mr. Fitch testified that there was “quite a conversation” as to the contents of the documents, and that plaintiff examined them before signing. He stated that he had heard that plaintiff was a “drinker,” but that her physical condition appeared “normal in respects of the human being,” and that there was nothing about her conduct that raised any question as to whether he should take the acknowledgments.

Plaintiff testified that she was 43 years of age, married but separated from her husband, and that for seven months she lived at and operated the cafe and beer parlor known as the Skyline. She described herself as a “drinker” and as a “blackout drinker,” and she stated that it takes “two drinks to black [her] mind out.” She stated that a “blackout drinker” is one who “can go ahead drinking yet function but * * * just don’t remember anything.” She further stated that she was a member of alcoholics anonymous, and that previously she had been treated many times for acute alcoholism. She admitted that she had talked to defendant about an option before September 28, but she said that she thought an option meant that if she decided to sell “he would be first in line to buy.” She -could not remember if defendant told her the purpose of an option to buy, but that she “took it for granted the option would be all over and done with when I paid my debt.” According to plaintiff she had not been drinking for seven months prior to September 21, but on that day which was her birthday there was a party for her and she went “off the wagon,” and thereafter until she entered a hospital on October 21 she was “blind drunk,” and was drunk on September 28 and could not remember anything that happened that day. She identified her signature on the option agreement, but described it as a “very sloppy signature” and as her “drunken signature.” She identified another signature written on March 8, 1966, as her “normal signature” when she was “in [her] right mind.” A comparison of these two signatures does reveal a substantial difference. Plaintiff further described herself as a “sporatic drinker,” and stated that when she starts to drink she “will do anything to get it” and “would sell my eyes probably.” Plaintiff asserted that she never intended to sell her property, and when asked if she could remember whether she received $150 for the option, she said that she could not remember anything after September 21, and did not recall signing the deed of trust. On cross-examination plaintiff admitted that in September of 1964 she was in a bad financial condition and needed money.

Mr. Les McCord, the state liquor control agent for Taney County, visited the Skyline “two or three days” after plaintiff’s birthday. Plaintiff was in bed, was in the process of drinking a bottle of beer, there were empty bottles around the room, the “whole place” smelled of alcohol, and in his opinion she was “on an extended drinking period,” but she responded to questions and gave intelligent answers. He did not know her condition on September 28.

Mr. Kenneth Nickens worked at the Skyline as a cook. He testified that plaintiff “got drunk” after the birthday party and stayed drunk, and that she was drunk on September 28 when she signed the papers, but he was not in the room at the time she signed.

Mrs. Lois Clark worked at a cafe in Branson, and was a member of alcoholics anonymous. She visited plaintiff as an alcoholic and took her to meetings on Monday nights for almost a year. In the fall of 1964 plaintiff had been sober for almost seven months, but it was then reported to Mrs. Clark that plaintiff was drunk. She visited plaintiff eight to ten times in September, and visited her several times toward the end of September. In her opinion plaintiff was “not only in the state of complete exhaustion she was also I would say in a mental blackout,” and she was “in a blackout for a period of six or seven weeks from the time [she] saw her” and until plaintiff’s mother died in October.

Mr. Donald Lee Conner also worked at the Skyline, and was working there on September 28 when defendant and Mr. Fitch were there that evening. At that time “she [plaintiff] was drunk” on beer. He remembered that Mr. Motley was there on September 23, and in his opinion plaintiff was drunk at that time. Neither on September 23 nor on September 28 did he caution Mr. Motley or defendant that plaintiff was drunk.

Plaintiff was admitted to the Skaggs Community Hospital on October 21, 1964. She had gone to the hospital to visit her mother, who was seriously ill and who died that day. The notation on the hospital record was that plaintiff “seemed to be near collapse, so was put to bed by nurses.” She stayed in the hospital one week. She later closed the Skyline, and one of the reasons for doing so, according to plaintiff, was that Mr. McCord told her that she “had better get off of it,” apparently referring to her drinking, and had asked her “if [she] wouldn’t please go ahead and [close] it.”

Plaintiff offered in evidence certain statements made by defendant in his deposition in which he said that he did not read or explain the option to plaintiff; that Mr. Fitch did not read to plaintiff “the contents of the whole option;” that he did not “think that [plaintiff] went through it all;” and that he replied “I don’t know” when asked if it was “possible that [plaintiff] could have been intoxicated.”

There was a substantia] difference in the testimony of the value of the property. Generally stated, plaintiff’s evidence from expert witnesses was to the effect that the 160 acres was worth $16,000, and defendant’s evidence from expert witnesses was that it was worth $60 an acre or $9,600. Defendant testified that the reasonable value was between $6,500 and $8,000.

At the time of the trial the note in the amount of $2,000 had been paid and the deed of trust released, and plaintiff offered to return the $150 paid by defendant for the option to purchase.

The trial court held the option to purchase “should be and is held to be of no force and effect and is void” because (1) plaintiff “was intoxicated from the use and consumption of alcoholic beverages and that intoxication was so deep and excessive as to deprive the plaintiff of her understanding and that her ability to understand and comprehend the legal significance of her act and the contents and legal significance of the said option was impaired and that due to said intoxication at the time of the execution of said option plaintiff was unable and incapable of assenting to said option,” and (2) “the consideration paid for said option and the consideration offered for said lands was and is grossly inadequate and far below the value of the property and as such was and is unfair and insufficient.”

Defendant contends on this appeal that plaintiff has not met her burden to show by clear, cogent and convincing evidence that (1) by reason of intoxication she did not have the mental capacity to execute the option to purchase, and (2) the consideration paid for the option and the consideration offered for the land was grossly inadequate.

In this equity action we review the case upon both the law and the evidence, and we determine the credibility, weight and value of the oral testimony and other evidence in the case, but in doing so we give due deference to the trial court’s findings, and we do not set aside the judgment unless it is clearly erroneous. Long v. Kyte, Mo., 340 S.W.2d 623. Defendant argues that this rule of deference does not relieve us of our primary responsibility to make our own determination of the facts, citing Cleary v. Cleary, Mo., 273 S.W.2d 340, 341, 346, and we agree. However, when there exists sharply conflicting oral testimony, our determination of the facts involves a certain degree of deference to the findings of the trial court who heard and observed the witnesses.

Defendant does not challenge the general rule, relied upon by plaintiff, that intoxication to such a degree as to deprive one of his reason and understanding, that is, that he is incapable of comprehending the nature and consequences of his act, constitutes grounds for equitable relief from the terms of a contract made while in that condition, even though the intoxication was voluntary. See Masterson v. Sheahan, Mo., 186 S.W. 524; Haneklau v. Felchlin, 57 Mo.App. 602; Miller v. Chinn, Mo.App., 203 S.W. 212; 17 C.J.S. Contracts § 133(2); 26 C.J.S. Deeds § 54f.

The evidence establishes that plaintiff was an alcoholic, and that when she started drinking she would continue to drink but would still be able to “function” in that she would be able to talk and move around. Her testimony was to the effect that she was a “blackout drinker” in that she could not remember, or could remember only imperfectly, what occurred when she was under the influence of alcohol. She also testified that she “fell off the wagon,” that is, started drinking, after her birthday party on September 21, and that she remained drunk or under the influence of alcohol until admitted to the hospital in October. This was supported by the testimony of Mr. McCord, the liquor control agent who was a disinterested witness. He testified that in his opinion (and no objection was made to his qualification to express an opinion) when he visited plaintiff shortly after her birthday that she had been on “an extended drinking period.” Mrs. Clark, also a disinterested witness, supported plaintiff by her testimony that during the latter part of September plaintiff was in a state of exhaustion and in a “blackout” by reason of the use of alcohol. As to this opinion there was no objection. While neither of these witnesses could state precisely plaintiff’s condition on September 28, this testimony does support plaintiff’s contention in that plaintiff’s condition was shown to have been one which continued over a period of time. See Rogers and Powers v. Warren, 75 Mo.App. 271. Two former employees supported plaintiff by their testimony that plaintiff became drunk after her birthday, remained drunk, and was drunk on September 28 when she signed the option to purchase. We also have the testimony of plaintiff that she was in need of money at the time, and that when drunk she would do almost anything to obtain alcoholic beverages. While plaintiff’s testimony as to this latter characteristic may not be given particular weight, it is a recognized fact that one under the influence of alcohol is inclined to exercise poor judgment in business as well as other matters. In addition to the above, there is the circumstance that on October 21, plaintiff was admitted to the hospital under circumstances indicating a long period of drinking which was consistent with her history of being an alcoholic. This testimony clearly supports the conclusion and findings of the trial court that plaintiff was so intoxicated when she signed the option to purchase as to deprive her of her ability to understand and appreciate the legal significance of her act.

In contrast to the above we have the testimony of defendant, Mr. Motley and the notary public. Mr. Motley saw and talked to plaintiff on September 23 and on two other occasions within the next day or two. Plaintiff appeared to him to be sober, although on one occasion she was drinking a beer. Both defendant and the notary public, whose interest in the case must be considered (as is also the case with the testimony of plaintiff), stated that plaintiff did not appear to them to be drunk. We note though that with considerable less confidence than that indicated by his testimony at the trial, when defendant was asked on deposition if it was possible that plaintiff could have been intoxicated when she signed the option agreement, he replied that he did not know.

We doubt that the evidence of the value of the land would authorize the conclusion that the amount to be paid was so grossly inadequate that, standing alone, it would justify setting aside the option. However, the evidence does indicate that the contract price was substantially below the actual value. This fact can and should be taken into consideration in determining whether by reason of the use of alcohol plaintiff was at the time so intoxicated that she was not able to appreciate fully the legal significance of her act.

When we consider all of the evidence and the circumstances, and consider the oral testimony of all the witnesses and weigh it with their interest or lack of interest in this case, and when in making our determination of the facts we give due deference to the findings of the trial court made after an opportunity to observe and hear the witnesses, an opportunity we do not have, we are constrained to reach the same conclusion as did the trial court that at the time plaintiff signed the option agreement she was under the influence of alcoholic beverages to such an extent that her ability to understand the legal significance of her act was substantially impaired.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


text:
    The COLOR PROCESS COMPANY, Appellant, v. NORTHWEST SCREENPRINT COMPANY, Respondent.
    No. 52532.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 11, 1967.

      Gerritzen & Gerritzen, by Ray A. Ger-ritzen, St. Louis, for appellant.
    Henry H. Stern, Jr., Baron, Stern & Lib-erman, St. Louis, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

Plaintiff, The Color Process Company, a Missouri corporation, filed this suit in the Circuit Court of the City of St. Louis, Missouri, against the Northwest Screen-print Company, an Illinois corporation. The suit was based on a breach of contract. In a first count plaintiff prayed for a judgment in the sum of $12,204.63 and in a second count for a judgment in the sum of $10,000 as punitive damages.

The defendant filed a motion which was captioned “Motion to Dismiss.” In the motion, it was stated that the defendant “appearing specially and for the purpose of this motion only, and specially denies that this court has jurisdiction as to it in this action, and moves to quash the summons and return of service as to said defendant on the following ground: * * The ground stated was, in substance, that the summons was directed to the sheriff of Cook County, Illinois. It was served on Hyman J. Krauss in Chicago, Illinois, alleged to be the registered agent for the defendant corporation.

The trial court sustained the motion and plaintiff appealed.

In the brief plaintiff contends that the service by the sheriff of Cook County, Illinois, is good. The defendant contends otherwise. We need not determine that question for the reason that there is no final judgment in this case and therefore the appeal should be dismissed. Rowe v. Hizar, Mo., 163 S.W.2d 566; State ex rel. Anonymous v. Murphy, Mo.App., 354 S.W.2d 42, 1. c. 43 [1].

The parties have briefed a point pertaining to the so-called “Motion to Dismiss” and the order of the court captioned “Judgment of Dismissal.” Plaintiff argues that the trial court did not have authority to dismiss plaintiff’s petition. The defendant argues that the trial court corrected the order by a “nunc pro tunc” order showing that the court by its order merely quashed the service and did not dismiss the petition.

We rule that while the motion was captioned “Motion to Dismiss,” it was in reality a motion to quash the service. The same is true of the order of the court. It was captioned “Judgment of Dismissal” but the order did no more than quash the service.

Note the prayer of the motion:

“WHEREFORE, by reason of the premises, the defendant, NORTHWEST SCREENPRINT COMPANY, prays the court to quash the writ of summons in this case against it, and the service and return of the Sheriff thereof and thereon.”

The order of the court read as follows:

“The court having heard and duly considered defendant’s motion to dismiss, heretofore filed, and presented and submitted herein, upon the pleadings and arguments adduced, and being sufficiently advised of and concerning the premises, doth order that said motion be and the same is hereby sustained.”

Note that the material portion of the order does not state that plaintiff’s petition be dismissed, but “that said motion be and the same is hereby sustained.” In the motion the defendant stated that it appeared for the sole purpose of presenting “this motion only, * * * and moves to quash the summons and return of service.” Nowhere in the motion was the court asked to dismiss the petition. We rule that the court, by sustaining the motion, did no more than quash the summons and the return thereon.

There being no final judgment, the appeal is hereby dismissed.

PER CURIAM:

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the court.

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting • when cause was submitted.


author: WELBORN, Commissioner.

text:
    E. O. DORSCH ELECTRIC CO., a Corporation, Plaintiff-Appellant, v. KNICKERBOCKER CONSTRUCTION COMPANY, Inc., a Corporation, Defendant-Respondent.
    No. 52479.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.

      Cox, Cox, Cox & Moffitt, Cox & Mof-fitt, William A. Moffitt, Jr., Robert C. Brinkman, St. Louis, for plaintiff-appellant.
    Carter, Fitzsimmons & Brinker, Lee M. Carter, Clayton, for defendant-respondent.
   WELBORN, Commissioner.

This is an action by an electrical subcontractor on a building project against another subcontractor on the project for $21,938.39 damages for negligent damage to the work done and material installed by the electrical subcontractor. The trial court ordered summary judgment in favor of the defendant. The plaintiff appeals.

The dispute here arises out of work on “The St. Louis Plaza Project” located in St. Louis, Missouri. Involved in part are the same contracts which were considered by Division Number Two of this court in the case of E. O. Dorsch Electric Co. v. Plaza Construction Co., Inc., et al., Mo., 413 S.W.2d 167, decided April 10, 1967, shortly before the submission of the present case. In the earlier case, plaintiff’s action was against the general contractor and its agents.

In this case, plaintiff’s petition alleged that it had installed electrical work on the project, pursuant to a contract with the general contractor; that defendant was a subcontractor for concrete work on the project; that, in the performance of its contract, defendant’s agents and employees “negligently and carelessly did damage and destroy certain parts of the electrical work and material which had been previously installed in said buildings by plaintiff, causing said work and material to be unfit for use, which required plaintiff to and it did replace the same, all to the damage of plaintiff in the sum of $21,938.39.”

The defendant filed a motion for summary judgment, as did the defendants in the Plaza Construction Co., Inc. case, and, as in the other case, the trial court sustained the motion. In this case, the defendant’s motion referred to the motion for summary judgment in the Plaza case, in which the plaintiff had acknowledged that the work was done under contracts there produced. The motion in this case alleged:

“ * * * In connection with a motion for summary judgment filed by the defendants in Cause No. 39458, plaintiff has admitted certain contracts marked as Exhibits A, B, C and D, each of which contracts contains the following provision:

“ ‘The title of all materials for which Owner is required to pay and of all work either completed or in the course of construction shall be in Owner. Title of all equipment not purchased by Contractor or Owner shall be in the Agents or in the renter in the case of rented equipment.’

“3. Defendant further states that Article 5 of each of said contracts contains the following provision:

“ ‘The Contractor understands that the work herein provided to be done is to be financed by a Building Loan secured by a mortgage to be insured by the Federal Housing Commissioner, the terms of which are set forth in a Building Loan Agreement between the Owner as Borrower and Manufacturers Trust Company as Lender.’

“4. Article 4 of each of said contracts provides in part as follows:

“ ‘Applications for payments under this Contract are to be made by the Contractor to the Owner, approved by the architect, in quadruplicate on FHA Form No. 2448, on or about the first day of each month after the commencement of work hereunder, for payment for work done during the preceding month or part thereof.’

“5. Defendant further states that the mortgages to which reference is made above cover among other things the following items: ‘all building materials and equipment now hereafter delivered to said premises and intended to be installed therein’ and ‘all buildings and improvements of every kind and description now or hereafter erected or placed thereon, and all fixtures, including but not limited to all gas and electric fixtures * * * ’

“6. Defendant further states that if there was any damage or destruction to the ‘electrical work and material’ after installation, as alleged by plaintiff, plaintiff had no right or title to or interest in the said work and material at the time of the damage or destruction, if any, but the title to the work and material had previously passed to the owners of the property and had previously been subjected to the mortgages on the property.”

The appellant filed no affidavit in opposition to the motion for summary judgment. On this appeal, no objection is made to the formal sufficiency of the motion upon which the trial court acted. The appellant’s position is that the contract provisions relied upon by respondent fail to show, as a matter of law, that plaintiff is not entitled to recover on its cause of action.

“[1,2] Summary judgment is authorized where, but only where, the ‘pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ Civil Rule 74.04(c), V.A.M.R. In addition to the above, it is further provided that ‘In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.’ Civil Rule 74.04(h), V.A.M.R. ‘As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure,’ Cooper v. Finke, Mo., 376 S.W.2d 225, 229, and the appellate court, as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered. Anderson v. Steurer, Mo., 391 S.W.2d 839, 842.” E. O. Dorsch Electric Co. v. Plaza Construction Co., Mo., 413 S.W.2d 167, 169.

In this case, the defendant has seen fit to base its claim for summary judgment solely upon the contract provisions regarding the title to the damaged installations. The defendant did not directly question or controvert the allegations of plaintiff’s petition that it was required to redo the damaged work. Although a party against whom a motion for summary judgment has been filed is not permitted to rely solely upon the allegations of his pleading, a summary judgment should not be granted in a situation where the evidentiary facts set forth in the matters supporting the motion fail to negative a material issue raised by the pleadings. Robinson v. Bench, Mo., 409 S.W.2d 145, 148 [2-4]; Burns v. Weber, Mo.App., 399 S.W.2d 446, 449 [3-5]. See Home Savings Bank v. Bentley, 5 Wis.2d 19, 92 N.W.2d 377, 67 A.L.R.2d 1450.

The title to the damaged work does not necessarily control the obligation of the subcontractor to redo the work. As pointed out in the Plaza Construction Co. case, “[acceptable performance entitling plaintiff to full payment is conditioned on ‘final approval and acceptance of Subcontractor’s work and materials.’ ” 413 S.W.2d 173. Under such provision, the subcontractor might be required to redo work which had not been approved and accepted, even though, by the terms of the contract, technical title to the work and materials had passed to the owner. Viewing the matter in the light most favorable to plaintiff, we cannot conclude that the question of title to the damaged work, by and of itself, negatives the obligation which plaintiff alleged was imposed upon it and which resulted in the alleged loss and damage to plaintiff. We agree with the conclusion of Division Number Two in the Plaza Construction Co. case that the contract provisions relied upon by the respondent fail to demonstrate conclusively as a matter of law that plaintiff is not entitled to recover on its cause of action.

The judgment is reversed and the cause remanded.

HOUSER, and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

HENLEY, P. J. and SEILER and HOLMAN, JJ., concur; STORCKMAN, J., not sitting when cause was submitted.


author: HOUSER, Commissioner.

text:
    Glen NUGENT, Appellant, v. HAMILTON & SON, INC., a Corporation, and Gene Lewis, Respondents.
    No. 52512.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.
    Jones & Stillman, Kennett and James E. Reeves, Ward & Reeves, Caruthersville, for plaintiff-appellant.
    Routh & Turley, Dewey Routh, Rolla, for defendants-respondents.
   HOUSER, Commissioner.

Action by Glen Nugent for $600,000 damages for personal injuries and medical expenses alleged to have been sustained as a result of the negligent operation of a tractor-trailer truck owned by defendant Hamilton & Son, Inc. and driven by defendant Gene Lewis. Following a jury verdict for defendants and the overruling of his motion for new trial plaintiff appealed.

On this appeal plaintiff seeks a reversal of the judgment and a remand for a new trial on two grounds: error in the giving of certain instructions for defendant, and error in refusing to sustain plaintiff’s challenge of juror Brown for cause.

Plaintiff submitted his case to the jury by way of a single verdict directing instruction (No. 2) under the humanitarian doctrine, counting upon failure to slacken speed and swerve. Defendants submitted their defense by Instructions Nos. 7, 8 and 9. All of these were converse instructions. We set them out verbatim:

INSTRUCTION NO. 7

“Your verdict must be for defendants unless you believe:

“First, defendant Lewis knew, or by using the highest degree of care could have known, of plaintiff’s position of immediate danger, and

“Second, at the moment when defendant Lewis first knew, or by using the highest degree of care could have known, of plaintiff’s position of immediate danger, defendant then had enough time by using such care to have avoided injury to plaintiff by slackening his speed and swerving, and

“Third, defendant Lewis had the means available to him to have avoided injury to plaintiff by slackening his speed and swerving, and

“Fourth, defendant Lewis by using the highest degree of care could have avoided injury to plaintiff by slackening his speed and swerving without endangering himself, and

“Fifth, plaintiff sustained damage as a direct result of defendant’s conduct.”

INSTRUCTION NO. 8

“Your verdict must be for defendants unless you believe that defendant Lewis by using the highest degree of care could have avoided injury to plaintiff by slackening his speed and swerving without endangering himself.”

INSTRUCTION NO. 9

“Your verdict must be for defendants unless you believe that at the moment defendant Lewis first knew, or by using the highest degree of care could have known, of plaintiff’s position of immediate danger, defendant Lewis then had enough time by using such care to have avoided injury to plaintiff by slackening his speed and swerving.”

Plaintiff’s first point is that the court erred in giving these three instructions because plaintiff submitted only one verdict directing instruction; that Nos. 7, 8 and 9 were verdict directing instructions which conversed No. 2 in three different ways, in violation of MAI No. 29.01 and Notes on Use of converse instructions under MAI No. 29.03, p. 251.

The General Comment on Converse Instructions, MAI No. 29.01, p. 245, states that “A defendant is entitled to a converse of plaintiff’s verdict directing instruction.” (Our emphasis.) Under Notes on Use, p. 249, it is clearly stated that:

“When plaintiff submits two separate verdict directing instructions, defendant may converse each such submission with any of the approved converse instruction forms. Defendant may give only one converse for each verdict directing instruction.”

Number 7 conversed every element of No. 2 except the element of immediate danger. Number 8 then repetitiously conversed (for the second time) the element of ability to avoid injury by slackening speed and swerving. Number 9 then repetitiously conversed (for the second time) the element of defendant’s knowledge of plaintiff’s position of immediate danger, and conversed (for the second time) the element of adequate time within which to act.

Numbers 8 and 9 clearly violate both the letter and the spirit of MAI No. 29.01 and the positive direction that ONLY ONE CONVERSE INSTRUCTION MAY BE GIVEN FOR EACH VERDICT DIRECTING INSTRUCTION. Slight deviations and inconsequential departures from MAI may be countenanced in some circumstances see Johnson v. West, Mo.Sup., 416 S.W.2d 162, but the giving of three converse instructions in response to one verdict directing instruction is a clear disregard of the mandate of MAI. This violation may not be condoned and constituted error. Under Civil Rule 70.01(c), V.A.M.R. it is our duty to judicially determine its prejudicial effect.

One of the main objectives of the reform movement which culminated in the MAI form book, with its specific directions for use, was to avoid the “sheer volume of words” which it was recognized might in itself be confusing to a juror, by cutting the instructions to the bare essentials. MAI XVII. Numbers 8 and 9 did not constitute a misstatement or misdirection of law. Obviously, however, they were not given to clarify, simplify and inform in a concise manner, but to forcefully hammer home the defense in the minds of the jurors for the purpose of gaining for the defendants an added advantage. It is our conclusion that Nos. 8 and 9 were calculated to confuse and mislead by overemphasizing the defense and that the giving of three converse instructions in response to one verdict directing instruction, contrary to the specific direction of MAI, constituted error prejudicial to plaintiff. To rule otherwise in this situation would be to emasculate MAI No. 29.01 and the last sentence of the Notes on Use on page 249.

The cases cited by defendants, which hold that the giving of repetitious instructions does not constitute reversible error unless it plainly appears that they were in fact calculated to confuse and mislead, do not involve converse instructions given under MAI. The instructions in Harrison v. Bence, Mo.Sup., 270 S.W. 363, related to the scope of the employment of the defendant’s chauffeur and the court, in upholding the judgment, commented that the evidence was all one way and the jury could not well have returned any other verdict. The court further recognized the general rule that “The purpose of instructing a jury is to aid them in arriving at a proper verdict, and in order to accomplish the desired purpose instructions should not be repeated, but when once given, presenting a particular theory of a case, no other instruction should present the same theory, as this would destroy their very purpose and mystify, confuse and mislead the jury.” 270 S.W., 1. c. 364 [2], In Harris v. St. Louis Pub. Serv. Co., Mo. Sup., 270 S.W.2d 850, multiple instructions were not involved; the appellant was complaining of repetition within the body of a single instruction. The matter repeated was the degree of care required of defendant. In upholding the instruction it was noted that it was neither lengthy, complex nor verbose; that there was no undue repetition, and that as written it could not have confused or mislead the jury or materially affected the merits of the case. In Dudeck v. Ellis, Mo.Sup., 399 S.W.2d 80, the court was concerned with a charge of repetition and under emphasis on questions of reliction, recession and accretion in a quiet title action. There were numerous parties, and cross claims and a third-party procedure. The issues were complicated. Some repetition was inevitable. The court found no undue repetition or emphasis under the circumstances and that the instructions were not calculated to confuse or mislead. These rulings are not governing in an MAI situation, in which bench and bar are directed to follow certain forms and adopt prescribed procedures in the giving of instructions. From and after January 1, 1965 our former rules relating to repetition in instructions must be read in the light of the reformation occasioned by MAI.

Since the cause must be remanded on the first point we need not consider the further point that the court erred in overruling plaintiff’s challenge of juror Brown for cause.

Judgment reversed and cause remanded for a new trial.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

HENLEY, P. J., and SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.