text:
    W. B. FULTZ, Appellant, v. ANZAC CORPORATION, Appellee,
    No. 3900.
    Court of Civil Appeals of Texas. Eastland.
    July 3, 1964.

    Rehearing Denied July 24, 1964.

      Jennings, Montgomery & Dies, Graham, for appellant.
    Woodward & Johnson, Coleman, for ap-pellee.
   GRISSOM, Chief Justice.

Anzac Corporation, successor in title to Mrs. Margaret Cheney, sued W. B. Fultz to establish a trust and the right to purchase 7/24ths of a Vá interest in an oil lease, which one-half interest Fultz had bought from A. G. Hill. The court held that, as a 'matter of law, Fultz held said 7/24ths interest in trust and that Anzac Corporation could compel Fultz to share his purchase with it. Fultz has appealed.

In March, 1939, M. G. Cheney, then the husband of Margaret Cheney, obtained a lease on land in Coleman County. On February 18th, 1948, Anzac Oil Corporation, a distinctly different legal entity than plaintiff-appellee Anzac Corporation, M. G. Cheney and L. J. Maxwell conveyed a Y2 interest in that lease to A. G. Hill. On the same day only Anzac Oil Corporation and A. G. Hill executed an operating agreement wherein Anzac Oil Corporation was appointed only by Hill as operator of the lease and their liabilities and the authority of said operator were stated. That operating agreement also contained in its printed form the following two widely separate provisions:

“In the event any party desires to sell all or any part of his or its interest in the unitized area, the other parties hereto shall have a preferential right to purchase the same. In such event, the selling party shall promptly communicate to the other parties hereto the offer received by him or it from a prospective purchaser ready, willing and able to purchase the same, together with the name and address of such prospective purchaser, and said parties shall thereupon have an option for a period of ten (10) days after the receipt of said notice to purchase such undivided interest for the benefit of the remaining parties hereto as may agree to purchase the same; provided that any interest so acquired shall be shared by the parties purchasing the same upon the basis of their then existing interest in the unitized area; provided, further, the limitations of this paragraph shall not apply where any party hereto desires to dispose of its interest by merger, reorganization, consolidation or sale of all its assets, or a sale of its interest hereunder to a subsidiary or to any company in which any one party hereto owns a majority of the stock.
* # * * * *
“This agreement shall extend to and bind the respective heirs, executors, administrators, successors and assigns of the parties hereto, and it is hereby agreed that the terms and provisions hereof shall constitute a covenant running with the lands and leasehold estates covered hereby.”

On August 1st, 1955, Anzac Oil Corporation conveyed its interest in said lease to W. B. Fultz. On August 4th, 1955, Mrs. cheney and Fultz made the following agreement :

“WHEREAS, heretofore under date of August 1, 1955, Anzac Oil Corporation did assign, transfer and convey to W. B. Fultz all of its right, title and interest in and to certain leases, royalties, oil payments, mineral interest and other of its assets; and,
“WHEREAS there was in existence, and such assignment above referred to was made subject to, certain Joint Operating Agreements wherein Anzac Oil Corporation and/or M. G. Cheney was designated as the Operator by the other parties owning joint interest in and to certain leases, the said Margaret Booth Cheney owning undivided interests in such leases, which were not conveyed to the said W. B. Fultz; and,
“WHEREAS it is the desire of the undersigned parties, that the present status of the parties under such Joint Operating Agreements be set forth in writing.
“NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS, That We, Margaret Booth Cheney, acting individually and as Independent Executrix of the will and estate of M. G. Cheney, deceased, and W. B. Fultz, do hereby mutually agree as follows:
“1. That Margaret Booth Cheney, both individually and in the capacity aforesaid, shall hence-forth be deemed as a Non-operator on all of the Joint Operating Agreements in force and effect and covering the leases which were the subject of the above assignment, it being here specifically provided that the liability of the said Margaret' Booth- Cheney shall be limited as further provided in said Joint Operating Agreements and in the same manner as the other Non-operators on same.
“2. Insofar as the said Margaret Booth Cheney is concerned, she does hereby state and declare that W. B. Fultz shall be the Operator of the lease properties, insofar as said lease properties are covered by the Joint Operating Agreements now in force and effect, and subject to all of the terms and provisions of each of said Joint Operating Agreements.
“3. It is further understood and agreed that it is not intended that this instrument shall or can affect any of the rights, liabilities or duties of the other parties who own interest in and to such leasehold estates.”

On January 6, 1961, Mrs. Cheney conveyed her interest in said lease to Anzac Corporation, which has no connection with Anzac Oil Corporation. On March 13, 1961, A. G. Hill assigned to Fultz his \/£ interest in said Coleman County lease subject to the provisions' of the operating agreement between Anzac Oil Corporation and Hill, dated February 18, 1948.

Appellee admits that if Mrs. Cheney’s interest in the lease had been assigned to Anzac Oil Corporation before she made said contract with Fultz on August 4th, 1955, that it could not have claimed an option because she was not then a party to the operating agreement executed by Anzac Oil Corporation and Hill in February, 1948. But, appellee says that .by virtue of (1) the 1948 operating agreement between Anzac Oil Corporation and A. G. Hill, which contained said option provision, and (2) the 1955 contract between Mrs. Cheney and Fultz that Mrs. Cheney became a party to said 1948 operating agreement and thereby acquired a right to share with Fultz in his purchase from Hill in proportion to her interest in the lease. The trial court held that said contracts, as a matter of law, had that effect. We think they not only do not compel that conclusion but that they constitute no evidence thereof.

It is evident that the operating agreement executed by Anzac Oil Corporation and Hill bound only those two parties, their successors, heirs and assigns, and that the option Hill and Anzac each gave to the other, so far as that agreement is concerned, granted no option right to any other person, except their heirs, successors and assigns. Mrs. Cheney is none of these. If Mrs. Cheney acquired the asserted right, it was necessarily because of a grant thereof by Fultz in the August 4, 1955, contract. The contract between Mrs. Cheney and Fultz shows that it was executed as a consequence of the assignment four days previously by Anzac Oil Corporation to Fultz of its interests in the Coleman lease. Anzac Oil Corporation had been the operator. It recites that said assignment is subject to certain joint operating agreements wherein Anzac Oil Corporation “and/or M. G. Cheney was designated as the operator by the other parties owning joint interests in and to certain leases. * * * ” The only operating agreement in the record, other than the one between Mrs. Cheney and Fultz, is the one wherein Anzac Oil Corporation was appointed by Hill alone as operator and Hill and Anzac Oil Corporation granted each other an option. Anzac Oil Corporation was not designated as operator “by the other parties” owning joint interests in the lease. Anzac Oil Corporation was designated operator only by Hill. M. G. Cheney was not designated as the operator. No one was granted an option except Anzac Oil Corporation and Hill. That right inured to the benefit of their heirs, successors and assigns. By its terms, Mrs. Cheney obtained no right to purchase any part of any interest to be acquired by Fultz.

The August 4, 1955 contract between Mrs. Cheney and Fultz refers to the sale by Anzac Oil Corporation to Fultz and recites that Mrs. Cheney owned an interest in the lease which had not been conveyed to Fultz and that they desired to state in writing the present status of the parties under all operating agreements. They then agreed only that (1) Mrs. Cheney should be deemed a non-operator under all the operating agreements in effect covering the lease assigned in part by Anzac Oil Corporation to Fultz and that Mrs. Cheney’s liability as a non-operator should be limited as the liability of non-operators was limited in the operating agreements; (2) that Mrs. Cheney declared that Fultz was the new operator of the lease, insofar as said lease was covered by the joint operating agreements then in force, and that, as such operator, he was subject to the terms and provisions of all operating agreements and (3) that it was not intended thereby to affect the rights, liabilities or duties of others who owned interests in said lease.

We find nothing in said contracts that compel the conclusion that Mrs. Cheney thereby became a party to the 1948 operating agreement between Hill and Anzac Oil Corporation and acquired the right to share in Fultz’ purchase from Hill. That right was granted only to Anzac Oil Corporation and Hill and their successors, heirs and assigns. A contract appointing Fultz as operator, subject to previous operating agreements, and stating that the present status of Mrs. Cheney and Fultz under prior operating agreements was that Mrs. Cheney should be deemed a non-operator, with her liability limited as the liability of non-operators was limited in other operating agreements simply did not have the effect of giving Mrs. Cheney the right which her successor here asserts. If it had been intended for Fultz to thereby transfer to Mrs. Cheney the right here asserted, it could have been easily accomplished by a simple provision to that effect in their contract.

Appellee stresses the fact that the conveyances to Fultz were “subject to” existing operating agreements and that the contract between Mrs. Cheney and Fultz appoints Fultz operator “subject to” all operating agreements in effect. The only-other operating agreement in the record is the one between Anzac Oil Corporation and Hill. So far as the right of Mrs. Cheney to share in a sale by Hill is concerned, an agreement between Mrs. Cheney and Fultz that Fultz should be the operator and Mrs. Cheney a non-operator, with her liability limited as in other operating agreements and that the agreement is “subject to” the operating agreement between Anzac Oil Corporation and Hill, does not purport to grant to Mrs. Cheney the rights of an option holder expressly granted only to Hill and Anzac Oil Corporation. Contracting “subj ect to” such a contract, on the contrary, recognizes the right of Hill and Anzac Oil Corporation to purchase from the other but does not make Mrs. Cheney a party to. that contract or make their purchase inure to her benefit. Although the printed form would have been more appropriate had' all owners signed it, nevertheless, it expressly bound only “the parties hereto” and was for the benefit only of the parties signing it and their successors, heirs and assigns. If it meant anything further applicable to-the right asserted by Mrs. Cheney’s successor, it was that their agreement was “subject to” the right of Fultz, as the as-signee of Anzac Oil Corporation, to purchase his proportionate share of any interest sold by Hill.

All parties say the contracts are unambiguous. There was no pleading authorizing introduction of parol evidence tending to show an intention to give Mrs. Cheney such a right. There was no offer of such evidence. There is no suggestion that other material admissible evidence exists. There is no prayer for a remand. The case appears to be fully developed. The contracts are not susceptible to the construction urged by appellee. The judgment is reversed and judgment is rendered for appellant

COLLINGS and WALTER, JJ., concur.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    R. T. MOORE and Carol Moore, Plaintiffs-Respondents, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 8291.
    Springfield Court of Appeals. Missouri.
    July 15, 1964.

      Gerald H. Lowther, James K. Prewitt, Springfield, for defendant-appellant.
    Homer D. Wampler, Jr., B. H. Clampett, Springfield, for plaintiffs-respondents.
   STONE, Judge.

In this court-tried action at law, plaintiffs R. T. (Tarrant) and Carol Moore, who are husband and wife, obtained judgment in the aggregate sum of $1,510.06 (including $1,054.60 for actual damages, $105.46 for statutory penalty [Sec. 375.420], and $350.-00 for attorneys’ fees) against State Farm Mutual Automobile Insurance Company (hereinafter called the Company) under the $50 deductible collision coverage alleged to have been afforded by a policy issued by the Company to plaintiffs as the named insureds. (All statutory references are to RSMo 1959, V.A.M.S.) Defendant appeals.

Plaintiffs are long-time residents of Greenfield, Missouri. In November 1961, Charles Ross Moore, plaintiffs’ son then twenty years of age, lived in the home of his maternal aunt, Mrs. Maxine Thomas, in Columbia, Missouri, and worked as a clerk at Noel’s United Supermarket in that city. Charles’ attention was attracted by a 1958 MG roadster (hereinafter referred to as the MG) on the Columbia used car lot of Copeland Foreign Cars, a co-partnership composed of Kenneth W. Copeland and Gerald Morris. Having determined to acquire the MG but being hindered in financing the purchase by the fact of his minority, Charles called his father, plaintiff Tarrant, over long distance from the Copeland lot on the Saturday before Thanksgiving, i. e., on November 18, 1961, and persuaded his father to “sign for me [Charles].” Thus assured of his father’s cooperation, Charles made a down payment of $200 that same afternoon, signed the note (for the balance of the purchase price) which was to be mailed to his father for signature, and had an understanding with Copeland’s representative (one Ribolt) that he (Charles) would pick up the MG on Thanksgiving Eve, November 22.

On the following Monday, November 20, plaintiff Tarrant received in the mail the note (signed by Charles) and a chattel mortgage, both instruments being “in blank” — “they weren’t filled in.” The same day he talked with Chester Ball, the Company’s agent at Greenfield, through whom plaintiffs theretofore had procured insurance coverage on a 1958 Mercury sedan and a 1949 Chevrolet sedan, the only two automobiles then owned by them, under separate policies issued by the Company. Informing Ball that “my boy was wanting to buy a car,” plaintiff Tarrant asked Ball (1) about signing the note and chattel mortgage in blank and (2) “about insurance.” On the first subject of inquiry, Ball said “it’d be foolish to sign something in blank” so, although plaintiff Tarrant signed the instruments, he returned them to his sister-in-law, Mrs. Thomas, that she and her husband might make sure that the instruments were “filled in correctly” when delivered to dealer Copeland. With respect to insurance coverage on the MG, plaintiff Tar-rant testified that “he [agent Ball] said that he would insure it, but he needed the motor number.” There was no evidence that such information ever was supplied.

On the appointed date, to wit, on Thanksgiving Eve, November 22, Charles took possession of the MG at the Copeland lot. Both partners, Copeland and Morris, were on a business trip to Chicago at that time, and Charles dealt with an employee not identified by name. To the inquiry “did you get any papers at that time, or did anybody say anything to you about papers, or did you just get the car,” Charles responded “I just got the car.” When Copeland and Morris returned that evening, the MG was gone. “Papers” pertaining to this transaction, which Morris had prepared before leaving for Chicago, were still on the office desk, so Copeland and Morris said. Sans “papers” but with a companion, Charles started for Greenfield the next morning, i. e., on Thanksgiving Day, November 23. But before he had gone very far, more specifically about seven miles from Jefferson City, he took the MG into a ditch while passing a truck and meeting another vehicle, and the MG was “pretty well demolished” as it rolled over six times. For the damage then done to the MG, plaintiffs sought to recover under the $50 deductible collision coverage afforded by the Company’s policy theretofore issued to plaintiffs on their 1958 Mercury sedan. We note parenthetically that the Company’s policy on plaintiffs’ 1949 Chevrolet sedan provided liability, but not collision, coverage. The Company never issued a policy on the MG or received any additional premium for coverage thereon.

At this point in our factual review, we backtrack to pick up the thread of title to the MG in the State of Arkansas where on March 28, 1961, an Arkansas certificate of title was issued to William M. Durham of Arkadelphia, Arkansas. On October 16, 1961, Durham sold the MG to Proctor and Brown Used Cars (a copartnership composed of Waldo Proctor and Oscar Brown) at Columbia, Missouri, and executed the “Assignment of Title” on the reverse side of the Arkansas certificate. Oscar Brown, as notary public, purported to take the acknowledgment on the assignment. On November 1, 1961, Proctor and Brown Used Cars sold the MG to Copeland Foreign Cars and executed the form reassignment on the reverse side of the Arkansas certificate of title. Oscar Brown, as notary public, again purported to take the acknowledgment on the reassignment which was signed “Proctor & Brown Used Cars — By Waldo Proctor (Partner).” Neither Proctor and* Brown Used Cars nor Copeland Foreign Cars obtained a Missouri certificate of title to the MG. "*

Just what title “papers” may have been lying on the desk when plaintiffs’ son Charles picked up the MG at the Copeland lot on November 22, 1961, is not clear from the record. When asked, “what papers did you prepare,” Gerald Morris, one of the partners in Copeland Foreign Cars, gave this obfuscous answer, “a bill to make out your title for for [sic] a new title, transferring the title into Mr. Moore’s name.” At another point, Morris said, “I made a new certificate out for a new title for it and notarized it.” But whatever “papers” Morris may have prepared, admittedly none of them were passed to Charles or to plaintiffs prior to the accident on Thanksgiving Day, November 23. According to dealer Copeland (the only witness who testified on this point), it was some time after the following Monday, November 27, before “the application for a new title” passed out of his hands. He thought that it had been picked up by Mrs. Maxine Thomas, Charles’ aunt, but “it could have been mailed.” And it was August 31, 1962, more than eight months after the accident, before a Missouri certificate of title was issued for the MG. At that time, the Arkansas certificate of title to the MG was surrendered to the Missouri Department of Revenue (Motor Vehicle Registration), “Missouri Certificate of Cancel [sic] Title Number 1670232” was issued in the name of “Copeland Foreign Cars” upon the application of that firm signed by Gerald Morris, and Missouri Certificate of Title Number-1670233 was issued in the name of “Dr. Tarrant Moore” upon his application which showed November 22, 1961, as the date of purchase of the MG and was accompanied by his “Affidavit of Non-Use” of that vehicle.

Instant plaintiffs’ pleaded theory, and the only theory suggested prior to judgment, was that the Company’s policy in force on plaintiffs’ 1958 Mercury sedan at the time of the accident under consideration (hereinafter referred to as the policy) afforded $50 deductible collision coverage on the MG as "a newly acquired automo bile." Under Coverage G of the policy, the Company agreed “to pay for loss to the owned automobile caused by collision * * in excess of the deductible amount stated in the declarations [$50] * * (All emphasis herein is ours.) In its “Definitions” section, the policy provided that “owned automobile means the private passenger automobile * * * described in the declarations [plaintiffs’ 1958 Mercury sedan] and includes * * * a newly acquired atitomobile * * *,” and that “newly acquired automobile means an automobile, ownership of which is acquired by the named insured [plaintiffs] if (1) it replaces an automobile owned by the named insured and covered by this policy, or the company insures all automobiles owned by the named insured on the date of its delivery, and (2) the named insured notifies the company within thirty days following such delivery date. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.”

Since the Company insured “all automobiles” then owned by plaintiffs, namely, a 1958 Chrysler sedan and a 1949 Chevrolet sedan (although there was no collision coverage on the latter), whether or not, at the time of accident, the policy afforded collision coverage on the MG as a “newly acquired automobile” depended upon whether or not plaintiffs then had acquired ownership of that automobile. In considering this question, we assume (without, however, so deciding) that, when Charles took possession of the MG on November 22, 1961, Copeland Foreign Cars owned that vehicle and could have conveyed ownership thereof to plaintiffs. We thus pass, as unnecessary to proper disposition of this appeal, determination of defendant’s point running along the line that a properly-acknowledged assignment of the Arkansas certificate of title for the MG was essential to vest title in Proctor and Brown Used Cars and likewise a properly-acknowledged reassignment of that Arkansas certificate was essential to vest title in Copeland Foreign Cars; that the acknowledgments on the assignment and reassignment of the Arkansas certificate were invalid because Oscar Brown, the notary public, being a partner in Proctor and Brown Used Cars which firm had no legal existence apart from its members. [Davison v. Farr, Mo.App., 273 S.W.2d 500, 502-503(1, 2), and cases there cited], had no authority to take such acknowledgments; and that, therefore, ownership of the MG had not been acquired by Copeland Foreign Cars in November 1961 and thus could not have been conveyed by Copeland to plaintiffs. Cf. Pearl v. Interstate Securities Co., 357 Mo. 160, 165, 206 S.W.2d 975, 978(10-11); Peper v. American Exchange Nat. Bank in St. Louis, 357 Mo. 652, 210 S.W.2d 41; Fitzgibbon Discount Corp. v. Roberts, Mo.App., 283 S.W.2d 906, 908(1, 2).

Section 301.210 is applicable and controlling “[i]n the event of a sale or transfer of ownership of a motor vehicle or trailer [in Missouri] for which a certificate of ownership has been issued,” either in this or another state. In subsection 4 of the cited statute, the General Assembly has made it “unlawful for any person to buy or sell in this state any motor vehicle” so registered [Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827, 829-830] “unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided,” and has declared that any purported sale “without the assignment of such certificate of ownership, shall be fraudulent and void." The cases are legion in which our appellate courts have stated emphatically that the provisions and requirements of Section 301.210 are absolute and mandatory and that the purported purchaser of a motor vehicle to whom a properly-assigned certificate of ownership is not passed at the time of delivery of such vehicle not only does not become the owner thereof hut also does not acquire any insurable interest therein.

In the case at bar, the Arkansas certificate of title to the MG never was reassigned to plaintiffs as it might have been by execution of a form “Reassignment by Registered Dealer” to be attached to the Arkansas certificate. Whether the plain mandatory requirements of Section 301.210 would have been satisfied if, at the time of delivery of the MG to Charles on November 22 (or prior to the accident on November 23), Copeland Foreign Cars had delivered to Charles the Arkansas certificate not reassigned to plaintiffs or to plaintiff Tarrant, but with Copeland’s application for a “Missouri Certificate of Cancel [sic] Title” and an application for a Missouri certificate prepared for signature by plaintiffs or by plaintiff Tarrant, is a provocative but academic question. For, although partners Copeland and Morris testified that some title “papers” had been prepared and left on an office desk at the Copeland lot, and although they may have intended that those papers be given to Charles when the MG was delivered to him, the simple and un-gilded truth of the matter is that nothing whatever passed between the parties when Charles took the MG on November 22 (or, for that matter, at any time prior to the accident). Section 301.210 contains “no exceptions to conform to intentions” [Allstate Insurance Co. v. Hartford Acc. & Ind. Co., Mo.App., 311 S.W.2d 41, 46; Public Finance Corp. of Kansas City v. Shemwell, Mo.App., 345 S.W.2d 494, 498], and “under the law as written there can be no exceptions in favor of those not intentionally guilty of wrongdoing.” Robertson v. Snider, Mo.App., 63 S.W.2d 508, 509; Mackie and Williams Food Stores v. Anchor Casualty Co., 8 Cir., 216 F.2d 317, 322. In short, the courts are not authorized to accept mere intention to comply with the law as the equivalent of compliance [cf. Mathes v. Westchester Fire Ins. Co. of New York, Mo.App., 6 S.W.2d 66, 67], or to determine cases in this general category on the basis of what may seem to be the fireside equities of the situation. See Hoshaw v. Fenton, 232 Mo.App. 137, 142, 110 S.W.2d 1140, 1143; Weaver v. Lake, Mo.App., 4 S.W.2d 834, 835.

There is in the case at bar no factual basis to invoke application of the one continuous transaction' doctrine under which the validity of purchase money notes and mortgages was sustained in Ashby v. National Bond Finance Co., Mo.App., 343 S.W.2d 218, and World Investment Co. v. Kolburt, Mo.App., 317 S.W.2d 697, cited and relied upon by instant plaintiffs. Viewed in the light most favorable to plaintiffs, the transaction under scrutiny was one in which their son Charles took possession of the MG under an executory contract to complete a sale of that automobile in the future. Cf. Allstate Insurance Co., supra, 311 S.W.2d loc. cit. 47; Sabella v. American Indemnity Co., Mo. (banc), 372 S.W.2d 36, 40. Ownership of the MG had riot been acquired by plaintiffs (or by plaintiff Tarrant) prior to the accident on November 23, 1961, and they are not entitled to recover on their pleaded trial theory that, at the time of accident, the policy afforded coverage on the MG as a “newly acquired automobile.”

While the case was under submission in the trial court, plaintiffs in an after-trial brief presented for the first time an alternate theory, to wit, that, if plaintiffs had not acquired ownership of the MG at the time of accident, nevertheless the collision loss was payable to them under the so-called “non-owned automobiles’ coverage afforded by the policy. By Insuring Agreement II in the policy, the Company agreed that “such insurance as is afforded under coverages A, B, * * * G and H with respect to the owned automobile applies to the use of a non-owned automobile by the named insured or a relative * * and, in its “Definitions” section, the policy provided that' “relative means a relative of the named insured who is a resident of the same household.” Plaintiffs’ counsel present this theory here as if a finding that Charles was, at the time of accident, “a resident of the same household” as his parents was the only prerequisite to appellate affirmance of their judgment. Although we are not prepared to follow counsel to their conclusion that Charles was “a resident of the same household,” we need not discuss or rule that contention on its merits for other considerations are disposi-tive of plaintiffs’ claim on the “non-owned automobile” theory.

Having pleaded a cause of action on the theory that they had acquired ownership of the MG, i. e., on the “newly acquired automobile” theory, plaintiffs could not recover in the circuit court, and may not support here the erroneous judgment nisi, on the altogether different and wholly inconsistent theory that they had not acquired ownership, i. e., on the “non-owned automobile” theory. Furthermore, nothing is better settled than that an appellate court will review a case only upon the theory upon which it was tried and that a party will be held on appeal to his theory upon trial.

But if the case properly were for consideration on the “non-owned automobile” theory, there would be an insuperable legal impediment to plaintiffs’ recovery on that theory. As a prerequisite to enforcement of an insurance policy insofar as it may afford coverage against damage to property by reason of fire, theft or collision, public policy demands that the insured have an insurable interest in such property at the time of loss. Otherwise, the policy would be a mere wagering contract condemned by the law. Having had no insurable interest in the MG at the time of the collision loss on November 23, 1961, plaintiffs could not have recovered in the instant suit on any theory. The definitions of “insurable interest” in plaintiffs’ cited cases [American Central Ins. Co. v. Kirby, Mo.App., 294 S.W.2d 556, 561(3); Bernhardt v. Boeuf & Berger Mutual Ins. Co., Mo.App., 319 S.W.2d 672, 674(1)], which'were suits to recover for damage to buildings, can find no application in this action. involving a motor vehicle. See Still v. Travelers Indemnity Co., Mo., 374 S.W.2d 95, 99. “Our legislature, in its wisdom, has placed the sales of used automobiles in a class of its own, with different requirements from those concerning the sales of other chattels. The courts, and the public alike, must recognize and be bound by the action of the legislature, and its effect on the rights of sellers, purchasers and mortgagees of such automobiles.” Bordman Investment Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72, 79(9).

The judgment for plaintiffs is reversed.

RUARK, P. J., and HOGAN, J., concur.

      . Pearson v. Allied Finance Co., Mo.App., 366 S.W.2d 6, 8(2); Bordman Investment Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72, 77-78(6); Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827, 830(2, 3); Craig v. Rueseler Motor Co., Mo.App., 159 S.W.2d 374, 378 (5-7); Platner v. Bourne, Mo.App., 275 S.W. 590(2); Mackie and Williams Food Stores v. Anchor Casualty Co., 8 Cir., 216 F.2d 317.

      . Sabella v. American Indemnity Co., Mo. (banc), 372 S.W.2d 36, 40; Kelso v. Kelso, Mo., 306 S.W.2d 534, 538(5), 539 (6), 71 A.L.R.2d 258; State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn. v. Cox, 306 Mo. 537, 268 S.W. 87, 37 A.L.R. 1456; Pearson, supra, 366 S.W.2d loc. cit. 8-9(3); M. F. A. Cooperative Ass’n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 286; Haynes v. Linder, Mo.App., 323 S.W.2d 505, 511(10); Bordman Investment Co., supra, 320 S.W.2d loc. cit. 78(7); Allstate Ins. Co. v. Hartford Acc. & Ind. Co., Mo.App., 311 S.W.2d 41, 46(3); Kesinger v. Burtrum, Mo.App., 295 S.W.2d 605, 608(6); Fowler v. Golden, 240 Mo.App. 627, 212 S.W.2d 93, 94(1, 2); Personal Finance Co. of Missouri v. Lewis Inv. Co., Mo.App., 138 S.W.2d 655, 656(1); Universal Credit Co. v. Story, Mo.App., 128 S.W.2d 654, 656(1, 2) ; Hoshaw v. Fenton, 232 Mo.App. 137, 110 S.W.2d 1140, 1143(7-9); Boyer v. Garner, Mo.App., 15 S.W.2d 893, 894; Mathes v. Westchester Fire Ins. Co. of New York, Mo.App., 6 S.W.2d 66, 68(2).

      . Sabella, supra, 372 S.W.2d loc. cit. 40; Kelso, supra, 306 S.W.2d loc. cit. 538 (5); Pearl v. Interstate Securities Co., 357 Mo. 160, 166, 206 S.W.2d 975, 979 (17); State ex rel. Connecticut Fire Ins. Co. of Hartford, Conn v. Cox, supra note 2; Haynes, supra, 323 S.W.2d loc. cit. 512 (12); Bordman Investment Co., supra, 320 S.W.2d loc. cit. 78(7); Personal Finance Co. of Missouri, supra, 138 S.W.2d loc. cit. 656(1); Evens v. Home Ins. Co. of New York, 231 Mo.App., 932, 82 S.W.2d 111, 115-116(1); Mathes, supra, 6 S.W.2d loc. cit. 68(3); Mackie and Williams Food Stores, supra, 216 F.2d loc. cit. 320-321(3, 4).

      .It is required in subsection 1 that “the holder of such certificate [of ownership] shall indorse on the same an assignment thereof * * * and deliver the same to the buyer at the time of the delivery to him of said motor vehicle,” in subsection 2 that “[t]he buyer shall then present such certificate, assigned as aforesaid, to the director of revenue,” and in subsection 4 that it shall be unlawful to buy or sell any registered motor vehicle “unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided,” and the attempted sale of any such vehicle “without the assignment of such certificate of ownership, shall be fraudulent and void.”

      . Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684, 687-688(2, 6); Hilderbrand v. Anderson, Mo.App., 270 S.W.2d 406, 409 (2); Ritchie v. Burton, Mo.App., 292 S.W.2d 599, 609(11); Copher v. Barbee, Mo.App., 361 S.W.2d 137, 145(9).

      . Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); Voelker v. St. Louis Mercantile Library Ass’n., Mo., 359 S.W.2d 689, 693 (2); Welch v. McNeely, Mo., 269 S.W.2d 871, 875(2); Griffin v. Anderson, Mo.App., 369 S.W.2d 889, 892(7).

      . King v. Guy, Mo.App., 297 S.W.2d 617, 625(16); Hill v. Seaboard Fire & Marine Ins. Co., Mo.App., 374 S.W.2d 606, 610 (6); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 301(2); Wardin v. Quinn, Mo.App., 324 S.W.2d 151, 154(3).

      . American Central Ins. Co. v. Kirby, Mo.App., 294 S.W.2d 556, 560(2); Estes v. Great American Ins. Co. of New York, Mo.App., 112 S.W.2d 153, 156 (5, 6); Hirsh v. City of New York Ins. Co., 218 Mo.App. 673, 267 S.W. 51(1); Wisecup v. American Ins. Co. of Newark, N. J., 186 Mo.App. 310, 314, 172 S.W. 73, 74; Dupeck v. Union Ins. Co. of America, D.C.Mo., 216 F.Supp. 487, 489 (1); 29 Am. Jur., Insurance, § 433, p. 776 ; 44 C.J.S. Insurance § 175a, p. 869; 4 Appleman, Insurance Law and Practice, § 2121, p. 17; Id., § 2122, p. 19; 3 Couch on Insurance 2d, § 24:1, p. 60; Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 6 — Part 1, § 3501, p. 131.

      . See cases cited in note 3, supra. Consult also 29 Am.Jur., Insurance, § 459, pp. 793-794; 44 C.J.S. Insurance § 177, p. 873 ; 4 Appleman, op. cit. supra, § 2185, loc. cit. 64; annotation 9 A.L.R.2d 181, 191.


author: MONTGOMERY, Judge.

text:
    Marlow W. COOK et al., Appellants, v. Henry WARD, Commissioner, Kentucky Department of Highways et al., Appellees.
    Court of Appeals of Kentucky.
    July 17, 1964.
    E. P. Sawyer, County Atty., Cecil Davenport, Asst. County Atty., Louisville, for appellants.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, for appellees.
    Jack Q. Heath, Louisville, for Kentucky Farm Bureau Federation.
   MONTGOMERY, Judge.

The question is whether Senate Bill No. 6 enacted by the 1964 General Assembly as Chapter 10, Kentucky Acts 1964 violates Kentucky Constitution, Section 51. More specifically, the question is whether an existing statute can be amended by incorporating by reference another existing statute.

The Act is as follows:

“AN ACT relating to State Appropriations for County Roads allocated among counties; statements of disbursements and balances.
“Be it enacted by the General Assembly of the Commonwealth of Kentucky :
“Section 1. Section 179.410 of the Kentucky Revised Statutes is amended to read as follows: The Department of Highways shall allocate the sum appropriated by the General Assembly for the construction, ¡reconstruction, improvement, and maintenance of county roads and bridges in accordance with the provisions of KRS 177.360(1).
“The Department of Highways, at the close of each fiscal year or as soon thereafter as practicable, shall furnish to the Fiscal Courts of the several counties a statement showing the total amount of all disbursements, the un-liquidated and unencumbered balances of the funds allocated to the respective counties for that fiscal year.”

The bill was signed by the Governor on February 28, 1964, and became effective June 18, 1964, as KRS 179.410.

Immediately thereafter, Marlow W. Cook, H. Bemis Lawrence, Maurice W. Archer, and John Skelton, composing the Jefferson County Fiscal Court, sued Henry Ward, as Commissioner of the Department of Highways, asking that Senate Bill No. 6 be declared unconstitutional and that he be restrained and enjoined from proceeding thereunder. The Kentucky Farm Bureau Federation was permitted to intervene. The Fiscal Court appeals from a judgment upholding the constitutionality of the Act.

The pertinent portion of Kentucky Constitution, Section 51, follows:

“ * * * no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.”

Prior to the effective date of the Act attacked, KRS 179.410 consisted of two paragraphs. Its first paragraph provided for the allocation of appropriated funds for county roads and bridges to be made on the basis of the number of counties, area, and rural population. By the new Act, no change was made in the second paragraph. The first paragraph of KRS 179.410 was changed to provide for the allocation of such funds “in accordance with the provisions of KRS 177.360(1).” The formula for the allocation of funds for rural and secondary roads is set forth in KRS 177.360(1). The effect of the change in KRS 179.410 is to place the allocation of funds to be used on county roads and bridges on the same basis as rural and secondary road funds. It may be noted that no question of discrimination in the allocation of such county road and bridge funds is presented or argued.

Appellants argue that the incorporation of the formula set forth in KRS 177.360(1) by reference to that statute is an amendment of KRS 179.410, which violates Section 51 because the pertinent portion of KRS 177.360(1) was not set forth in its entirety in Senate Bill No. 6. They rely on Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017; Hazelrigg v. Hazelrigg, 169 Ky. 345, 183 S.W. 933; Board of Regents, etc. v. Engle, 224 Ky. 184, 5 S.W.2d 1062; and Commonwealth v. Scott, 310 Ky. 537, 221 S.W.2d 64.

Each case is distinguishable on its facts. In the Spencer, Hazelrigg, and Engle cases the title to the Act was held to be bad. Here, appellants admit that the title to the Act is good. In the Hazelrigg and Engle cases the statute was also held to be bad for failure to set forth the statute as amended in its entirety. The new statute contained only the amendatory portion. The latter ground was the basis for .the holding in the Scott case, wherein the amending statute set forth a subsection to be added to an existing statute without setting forth the amended statute in its entirety. In this regard Senate Bill No. 6, now KRS 179.410, did set forth the statute in its entirety, as is shown by a reading of it.

In the Spencer case it was held that it should be the purpose of the Court in construing Section 51 “to enforce substantial compliance with this section, while giving to it a reasonable and liberal construction,” “so as not to hinder or embarrass the Legislature in its efforts to enact laws.” Section 51 was intended to correct a legislative practice in general use before the adoption of the present Constitution where old laws were made a part of new laws merely by reference to the title of the old laws. Board of Penitentiary Commissioners v. Spencer, 159 Ky. 255, 166 S.W. 1017; Lynn v. Bullock, 189 Ky. 604, 225 S.W. 733.

In the Spencer and Bullock cases, Carroll, J., discussed the many problems arising under Section 51. Ignatius A. Spalding, Chairman of the Legislative Committee, in Volume 3, page 3792, Debates of the Constitutional Convention, stated the problem to be solved and the purpose of the section thus :

"The members of the General Assembly did not know what they were voting for half the time, and this section in the report provides when an act is amended it shall not be amended in that way, but that the act, as amended, shall be set out in full, so every man will understand what it is when voting on it, and the people will know what change has been made when they see it.”

A typical example of the problem is quoted from the Bullock case:

"In Acts 1873, p. 120, the Legislature enacted a law, the title of which read, rAn Act to incorporate the Oak Ridge Turnpike Company in Mercer county,’ and in the body of the act, which only contained three sections, it was provided that
“ ‘The provisions of the act and amendments thereto chartering the Harrods-burg and Cornishville turnpike road are made a part of this act by reference, as far as not inconsistent.’ ”

As will be noted, Section 51 deals with amendment “by reference to its title only.” The title to an Act or statute may, understandably, be vague and indefinite, and the Act or statute may thus be difficult to identify.

There is nothing in its history which indicates that Section 51 was intended to deal with amendment in any manner except by title. The failure to set forth the amended statute in full is intended to insure that the statute as amended is available for the examination of anyone so desiring; thus, no interested legislator would be deceived or misled by its contents. Amendment by reference to the pertinent section of Kentucky Statutes or Kentucky Revised Statutes does not appear to have been included in the purview of Section 51.

The ease of identification by statutory section solves the problem created by reference to title only. The legislator, citizen, or lawyer, interested in any bill in which it is proposed that a statute shall be amended, as in the case here, has only to look to the pertinent statute referred to in order to learn its content. The reading of the bill, as here, would disclose how the amended statute would read upon enactment. The presumption is that the Legislature is cognizant of the Constitution, previously enacted statutes, and the common law. Young v. Grauman, 278 Ky. 197, 128 S.W.2d 549; Inland Steel Co. v. Hall, Ky., 245 S.W.2d 437; Brown v. Hoblitzell, Ky., 307 S.W.2d 739. It is to be presumed that each legislator, upon reading Senate Bill No. 6, was cognizant of the two statutes mentioned therein. Senate Bill No. 6 left no room for anyone to claim deception or fraud in its content.

In Bloxton v. State Highway Commission, 225 Ky. 324, 8 S.W.2d 392, statutory amendment by reference to pre-existing statutes was approved, with the observation that “Were it otherwise, it would be necessary to reprint each chapter of Kentucky Statutes provisions properly placed in other provisions of the collection.”

In Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149, the question was whether a 1940 Act which provided that it should be administered under the provisions of a 1938 Act, properly identified, violated Section 51. Sims, then Commissioner, later Judge, wrote:

“It has been several times written that the manner of procedure may be provided by reference to other sections of the statutes without doing violence to Sec. 51. Hart v. Com., 207 Ky. 343, 269 S.W. 300; Clark v. Com., 209 Ky. 184, 272 S.W. 430; Carey-Reed Co. v. Sisco, 251 Ky. 22, 64 S.W.2d 430.”

In the Clark case cited, Lyman v. Ramey, 195 Ky. 223, 242 S.W. 21, was cited in support. There, it was held that a statute did not violate Section 51 when it referred to, and by reference adopted, wholly or partially pre-existing statutes. The statute there held valid read:

“Said companies shall comply with all provisions of law applicable to fire and marine insurance companies of other states, doing business in this state.”

In Board of Aldermen of City of Ashland v. Hunt, 284 Ky. 720, 145 S.W.2d 814, and Allphin v. Ohio River Company, Ky., 306 S.W.2d 94, the same amendatory procedure used here was approved. A casual study of the Kentucky Revised Statutes reveals that the practice of amending by reference to cited statutes of the Kentucky Revised Statutes has existed for a long time and has been used extensively as a practical device. Perhaps the most common example has been the designation of penalty sections by reference to statute.

The title to Senate Bill No. 6 is admittedly good. The new statute, KRS 179.410, was set forth in its entirety. It, therefore, is concluded that Section 51 was not violated. There was no necessity to republish any repealed portion of the statute amended. Board of Trustees of Policemen’s and Firemen’s Retirement Fund v. City of Paducah, Ky., 333 S.W.2d 515.

Judgment affirmed.

BIRD and MOREMEN, JJ., dissent.


author: GRIFFIN, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Petitioner, v. Charlie LEE, Respondent.
    No. A-9957.
    Supreme Court of Texas.
    July 15, 1964.
    Donald R. Hallmark, Houston, for petitioner.
    James H. Campbell, Houston, for respondent.
   GRIFFIN, Justice.

This is a workmen’s compensation suit brought in a district court of Harris County, Texas, by respondent Lee against petitioner Liberty Mutual Insurance Company, seeking to recover for total and permanent incapacity resulting from an injury sustained by plaintiff.

It is stipulated that Charlie Lee, the workman referred to herein, sustained about September 30, 1960, an injury in the course of his employment by Texas Creosoting Company, at which time he had an average weekly wage-earning capacity of sixty dollars. The stipulation evidences agreement that any award recovered be paid in a lump sum, and that the workman had been paid $805.00 by Liberty Mutual Insurance Company, hereafter called defendant, subsequent to the injury at the rate of $35.00 per week, for twenty-three weeks’ total disability.

Upon the trial, the jury found in answer to special issues submitted to them, that the plaintiff, as a result of accidental injuries, suffered total incapacity which is permanent ; that the total incapacity was not due solely to the loss of the use of his left leg; that the injury to plaintiff’s left leg resulted or will result in total loss of the use of the leg and is permanent in nature; that the injury sustained is not confined to the left leg and plaintiff’s incapacity was not due solely to the loss of use of the left leg; and that there was no partial disability.

On this verdict, the trial court entered judgment for plaintiff against defendant for a lump sum for 401 weeks, less the .amounts theretofore paid to plaintiff by-defendant, plus 4% interest from the date ■the jury returned its verdict.

On appeal, the Court of Civil Appeals affirmed. 377 S.W.2d 781.

Defendant’s petition for writ of error was granted on its assignment that there was no evidence to support the jury’s findings of total incapacity; and that such was permanent; and that the total incapacity is not due solely to the loss of use of plaintiff’s left leg, and that the injury ■to plaintiff’s left leg resulted in the per-manent loss of use of that leg.

We have read the statement of facts to see if there is evidence of probative force to sustain the jury findings. We must consider only that evidence which would sustain the jury’s findings and disregard all •other evidence.

Plaintiff’s witnesses were his wife, the •doctor whom plaintiff had selected to treat 'his injuries, and plaintiff.

With regard to the nature and extent of plaintiff’s injuries and resulting disability, plaintiff testified that on September 30, 1960, the date it was stipulated he sustained an accidental injury, he and other workmen were engaged in unloading poles about 40 feet long, from a freight car by means of an unloading crane. The plaintiff, and •others, would pass a wire line or cable around about five or six of these large poles. The crane would then lift the poles •out of the car and place the poles on the .ground. While in the process of lifting a load of poles from the car, the load swung around and against plaintiff’s leg. When .asked how he was injured, plaintiff testified that after the load was ready to be lifted out of the car, he, plaintiff, walked •down to the end of the car. When the •crane operator picked up the load it swung into plaintiff and mashed his left leg up against the end of the freight car. Five or ■six of these poles swung into plaintiff and "hit his left leg. The main blow he sustained ■was on his left knee which was mashed up against the railroad car. He testified that no part of his body hit the car, but his knee was mashed. In answer to his counsel’s question, “So it knocked your left knee and left side against the car?” he answered, “Yes.”

On cross examination, plaintiff was asked, “What part of your body got mashed up against the side of the car?” He answered, “I don’t know — just my knee and, you know, when I do lots of walking my whole side goes to hurting.” He also testified that no part of his body other than his left knee was mashed up against the box car, but “I believe my hip hit the top end of the car.” He said at the time he was not “interested in nothing” but his knee. He also testified, “I ain’t saying no other part hit my leg.” In his deposition taken shortly after the accident, he testified that no other part of his body hit the box car, and that his knee was mashed, and just his left knee.

Plaintiff went back to his job and worked for a few weeks. His knee swelled up on him and hurt him very badly and he had tó quit his work. In an effort to relieve the pain in his knee, plaintiff was operated on by a Dr. Fain. This operation on the knee did not relieve the swelling or the pain, and plaintiff consulted other doctors, particularly Dr. Zionts, who testified on behalf of the plaintiff.

With regard to how and where plaintiff hurt, and the effects of his trying to work, both before and after the operation, plaintiff testified that he could not do the heavy work he did before the injury; that when he worked his knee and leg swelled up on him and pained him; that after he had worked for a few hours his left leg would swell up on him, and that a little place in his back would hurt; that sometimes when he had worked a few hours a real hard pain would hit “right down here (demonstrating, but the record does not show what part of his body he had in mind, but we will presume from the record he meant his left knee or leg) and goes up my-left side.” He would háve a pain “down here” (demonstrating again, but not identifying for the record) and the pain would radiate up the body. His knee hurt and it was very painful at times, and he could not get any sleep on account of his knee hurting him. There is no evidence that any injury to plaintiff’s side, hack, or hip caused any pain or in any manner interfered with plaintiff working. It was the left knee and left leg which swelled and caused pain that radiated to the side.

There were no pleadings that the injury to plaintiff’s left knee extended to and affected other parts of his body. No issues on this were requested, nor submitted. Plaintiff says in his answer to the application for writ of error that this ground of recovery is not in this case.

Mrs. Lee, wife of plaintiff, testified that he was in good health prior to the injury on September 30, 1960, and was able to work; that plaintiff has complained of pain since the injury; that since the accident and since the operation on plaintiff’s knee she has tried to help plaintiff with his knee by rubbing his knee and back and putting icebags on his knee when it had fever in it. This is the extent of her testimony.

Plaintiff’s only medical witness was Dr. Zionts, to whom plaintiff went for treatment after his operation. Dr. Zionts testified that plaintiff came to his office in April, 1961, after his operation in December, 1960. He testified in detail as to the plaintiffs history of his injury and suffering. Plaintiff told the doctor that the injury was to the left knee and did not mention any other injuries. He did tell the doctor that he had hurt his back in 1957 and 1958. The doctor made an examination of plaintiff’s head, eyes, ears, nose, throat, neck, chest, heart, lungs, abdomen, inguinal area, and back and found all normal. He saw the knee on various occasions when it was swollen and recommended that a second knee operation be offered to plaintiff, as it might help his knee. He testified that due to the condition of plaintiff’s knee he would be unable to hold a job which required heavy labor, walking on uneven ground, climbing or walking up stairs. He attributed the backache which plaintiff had mentioned as resulting from a strain on the muscles of the back in trying to protect the injured leg. The doctor testified that plaintiff’s condition with his knee is permanent. In answer to a question as to whether or not there was a “total disability as to that leg,” the doctor said: “You say totally; he can’t use it at all? No, he can use it. I would say the whole leg is involved. It is not totally disabled like if completely gone, but I would say it is a minimum of fifty percent disuseful to him.” The doctor further testified that as for heavy work, plaintiff’s leg was 100% disabled, but that the functional disability of the use of the left leg was at least 50%.

The defendant put on two doctors, and their testimony was that plaintiff’s injury and resulting disability was from the knee injury. They estimated his incapacity to his leg from 4% to 50% permanent partial.

We find no evidence that would justify the recovery for total, permanent disability and its resulting incapacity.

The evidence shows that the only injury which plaintiff suffered was to his left knee; that his disability to work is a result of this injury; that when plaintiff tries to work, he can only work for four or five hours, when his knee will swell up on him to such an extent that he can no longer work and is forced to quit. There is enough testimony to support the jury finding that the condition of plaintiff’s knee is a permanent condition and one which will prevent his holding a job requiring the use of that left leg.

The law governing this case has been declared by this Supreme Court in two fairly recent opinions:

Texas Employers’ Insurance Association v. Brownlee, 152 Tex. 247, 256 S.W.2d 76 (1953), was a case where the employee, Brownlee, had sustained an injury to two fingers of his right hand. Plaintiff filed suit alleging injury to the two fingers, and also alleging that such injury “extended to and affected his entire right hand” in the performance of labor, and he sought recovery for total loss of use of his right hand. We have no pleading of “extension and affecting” in our present case.

The cause was tried to a jury, and the jury answered special issues that (1) plaintiff sustained 50% partial loss of use of the fingers, which (2) was permanent; that these injuries extended to or affected his right hand other than the fingers, and plaintiff’s incapacity was not confined to his fingers, and that plaintiff sustained 50% permanent partial loss of use of his right hand.

Judgment was rendered for plaintiff for loss of use of his right hand, and the Court of Civil Appeals affirmed. 256 S.W.2d 857.

The Supreme Court reversed and rendered judgment only for the loss of the fingers.

The Court said:
“If there was impairment of the use of the hand, other than that merely resulting to it from the loss of the fingers, there would be liability supporting recovery in proportion to such impairment of the use of the hand; but, if the evidence shows that the hand was not impaired except as it was affected by the loss of the fingers, there would be, under the plain provisions of Article 8306, Section 12, supra, no recovery allowed for the loss of use of the hand. In other words, if the loss of the use of the hand resulted solely from the injury to the fingers, the respondent would be limited in his recovery to that provision of the statute which provides for compensation in the event of the loss of, or the loss of the use of, the fingers.”
Again, the Court says:
“Where injury results to a particular member of the body, compensation for the'loss of which is specifically provided by statute, the liability of the insurer is limited to that amount, even though the loss of or injury to that particular member actually results in total permanent incapacity of the employee to labor. * * (Emphasis added).

In Texas Employer’s Insurance Association v. Espinosa (Tex.Sup.Ct., 1963), 367 S.W.2d 667, in discussing whether a specific partial incapacity could develop into a general incapacity, the Court said:

“It is the policy of the workmen’s compensation law to award compensation for certain specifically designated losses, such as the loss of an eye; such injuries being considered as cases of partial incapacity. Article 8306, § 12. It follows that a specific partial incapacity cannot develop into a general incapacity under Article 8306, § 10 of the Workmen’s Compensation Act, when the disabling incapacity consists of pain and dizziness and results solely from using or attempting to use an eye or other member of the body for which specific compensation is provided by Article 8306, § 12. This question was squarely stated and answered by the Fort Worth Court of Civil Appeals in Coleman v. Hartford Accident & Indemnity Company, 297 S.W.2d 236, in which this Court refused writ of error. We quote from the opinion:
“ ‘Quare: Where a claimant under the Texas Workmen’s Compensation Act sustains an injury to a specific member mentioned in Section 12 of Article 8306, V.A.T.S., and such injury results in a percentage of permanent partial loss of use of such member, may he recover compensation for future general incapacity occasioned as the result of pain incident to any attempted utilization of the member’s remaining use, such pain originating in the injured member and extending to and affecting other portions of his body?
“Answer: No.’”

Although the evidence does not support the jury’s answer to the special issues as to general incapacity, or the trial court’s judgment, the evidence above set out supports the finding of the jury that plaintiff is entitled to recover for the permanent total loss of use of his leg. Under proper pleadings and findings the jury answered that plaintiff does have a permanent total loss of use of his left leg. Travelers Insurance Company v. Seabolt (Tex.Sup.Ct., 1962), 361 S.W.2d 204 (2,3).

The judgments of both courts below are hereby reversed and the cause remanded to the trial court to render judgment in accordance with this opinion.


author: CALVERT; Chief Justice. GRIFFIN, J.,

text:
    Johnnie A. JANAK, Petitioner, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Respondent.
    No. A-9965.
    Supreme Court of Texas.
    July 8, 1964.
    Rehearing Denied July 29, 1964.

      Putman & Putman, Richard G. Strong, ,San Antonio, for petitioner.
    Groce, Hebdon, Fahey & Smith, San Antonio, for respondent.
   CALVERT; Chief Justice.

Suit was by Janak to recover workmen’s compensation benefits. The jury answered all special issues favorably to Janak, and the trial court’s judgment awarded him a recovery of benefits, in a lump sum, in keeping with the jury’s verdict. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that Janak take nothing. 374 S.W.2d 744.

We reverse the judgment of the Court of Civil Appeals and remand the cause to that Court.

Rendition of judgment against Janak hy the Court of Civil Appeals was predicated on its finding that the jury’s answer to Question No. 1 had no support in probative evidence. The answer is vital to Janak’s right of recovery.

Question No. 1 and the Court’s instruction given in connection therewith read:

“Do you find from a preponderance of the evidence that the injuries sustained by Johnnie A. Janak on October 22, 1959, were injuries sustained in the course of his employment for Field Drilling Company ?
“Answer by stating ‘Yes’ or ‘No.’
“We, the jury answer: -
“In connection with the foregoing question you are instructed that by the term ‘injuries sustained in the course of his employment’ is meant injuries of every kind and character having to do with, and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere. Unless transportation is furnished as a part of the contract of employment, expressly or by implication, or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs of [sic] business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel in [sic] sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

The jury answered the question, “Yes.”

Janak was a member of a drilling crew engaged in drilling an oil well near Ecleto. He lived at Yorktown. Five members of the' crew, including Janak, who lived in Cuero and Yorktown traveled to and from the drilling site in a carpool; that is, each member of the crew owned an automobile and each fifth working day used his automobile to transport himself and the others, at his own expense, from Yorktown to the drillsite in going to work and from the drillsite to Yorktown in returning home. Janak’s injuries resulted from an automobile collision which occurred while he and other members of the crew were going to the drillsite in an automobile owned and being operated by Draplia, a member of the crew.

The shortest and most convenient route to Ecleto from Yorktown was over highway 119 northwesterly to Gillett, thence over highway 80 southerly to a point óf intersection with a road leading easterly to Ecleto. On the morning of the accident the crew took a longer route. They were traveling over highway 72 southwesterly to Runge, thence over highway 81 northwesterly to Helena, thence over highway 80 northerly to its intersection with the road leading easterly to Ecleto. The accident occurred, on highway 80 shortly after the crew had left Helena. A map showing the various highways and towns, the drillsite and the place of the accident is shown for clarity.

The purpose of the crew in taking the longer route to Ecleto was to pick up ice at Runge for their water. There was no water available at the drillsite, and Field Drilling Company, the employer, did not furnish ice for the water transported to the site by his employees. It was necessary, therefore, that some member of the drilling crew buy ice if the water was to be cooled. Ice could- not be obtained in Yorktown at the early morning hour at which the crew had to leave in order to reach the drillsite by the time their work day was to begin. While engaged in drilling another well southwest of Yorktown, they had been buying ice at Runge where they would fill two large cans, furnished by their employer, with water and ice. From their past experience, they knew that they could obtain ice in Runge sufficiently early to permit them to pick it up and reach the new drill-site at Ecleto in time for work. On the day of the accident, Draplia started to drive on highway 119 toward Gillett, but the driller, who was in the automobile, directed him to take highway 72 to Runge to get ice.

To be entitled to compensation benefits Janak must have been in the course of his employment when he was injured; and, as stated by the Court of Civil Appeals, whether he was in the course of his employment at that time is controlled by Secs. 1 and lb of Art. 8309, Vernon’s Texas Civil Statutes, as judicially interpreted. The controlling provisions of the sections are included in the trial court’s instruction accompanying Question No. 1, and they need not be set out here.

The general rule, as correctly noted by the Court of Civil Appeals, is that an injury occurring in the use of the public streets or highways in going to and returning from the place of employment is.non-compensable. American General Insurance v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374. The rule is known as the “coming and going” rule. The rationale of the rule is that “in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the cm-ployer.” Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, 353. The rule has been criticized by Horovitz who states that the exceptions to the rule “are so numerous that they have swallowed the rule.” 41 Nebraska Law Review 51.

Sec. lb, Article 8309, enacted in 1957, has two parts. The first part declares injuries during travel to be in the course of employment, and therefore compensable, only when transportation is (1) furnished as a part of the contract of employment, or (2) is.paid for by the employer, or (3) is under the control of the employer, or (4) when “the employee is directed in his employment to proceed from one-place to another place.” The second part deals with the “dual purpose” rule. It declares that injuries occurring during travel for the dual purpose of furthering the affairs or business of the employer and of furthering the employee’s personal or private affairs shall not be deemed in the course of employment, and therefore compensable, “unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

The Court of Civil Appeals turned its holding that there is no evidence in the record to support the jury’s answer to Question No. 1 on the fact that under the private arrangement between the members of the crew it was Draplia’s day, not Janak’s, to procure and transport the ice and water, and thus that Janak was but a passenger in-Draplia’s automobile and was traveling only in furtherance of his personal business of going to his place of employment. The broad question posed by that holding is whether a passenger member of a business or industrial carpool is in- the course of his employment while traveling with the automobile owner-operator member whose journey is to perform a service in furtherance of- the employer’s business. We meet this question squarely and answer in the affirmative.

It is a matter of common knowledge that travel in carpools has become an important economic facet of our modern society. This is particularly so among business and industrial employees and workers. By traveling in carpools they reduce their individual expenses which are job-connected and increase their wages usable for personal and family needs, thus making demands on the employer for increased wages less urgent. If on a particular trip the automobile-operator member of the carpool must perform a service in furtherance of the employer’s business, the others must go also or abandon the carpool. To expect them to abandon the carpool if the deviation is not extreme is utterly unrealistic; and it is also unrealistic, therefore, to draw an imaginary line between the crew member who operates the automobile and the crew member who is but a passenger and say that the one is entitled to compensation benefits-if injured but the other is not. One may imagine a situation in a case such as this in which the employer requested the automobile-operator crew member to perform a mission on the trip home requiring a deviation from the regular route of travel. If the other carpool crew members declined to travel with the operator they would be left stranded in a rural area some thirty-five or more miles from home.

From the standpoint of the employer in this case the obligation to procure and transport ice and water was the obligation of all of the crew members each day, and the private arrangement between the members by which one assumed primary responsibility for discharging the obligation on a particular day does not alter that fact. If the one assuming primary responsibility on a particular day had failed to discharge the responsibility, necessity for its discharge would have required another to step into the breach. We thus conclude that there is no sound basis in law for holding that Draplia was in the course of his employment on the occasion in question but Janak was not

In support of its holding the Court of Civil Appeals cited Travelers Insurance Company v. Forson, Tex.Civ.App., 268 S.W.2d 219, writ refused, no reversible error. It is to be noted that when we refused writ of error in that case our notation indicated our view that the application presented no error requiring reversal but that we were not satisfied that the opinion of the Court of Civil Appeals in all respects “correctly declared the law” of the case. Rule 483, Texas Rules of Civil Procedure.

The basic facts in Forson are identical with the facts in this case with one important exception. In Forson the members of the drilling crew were traveling over their regular route between their home town base and their place of employment when the injury to the passenger crew-member occurred. Recovery of benefits was denied by the Court of Civil Appeals for the same reason that benefits have been denied in the instant case — because it was not the injured employee’s day to procure and transport the ice and water, and the injured employee was only a passenger in the automobile of the crew member who had procured the ice and water and in whose automobile it was being transported. The proper reason for denying recovery in that case was that none of the members of the crew — not even the owner-operator of the automobile who had procured and was transporting the ice and water — was in the course of employment within, sound limitations of the “dual purpose” rule. .We make this statement with due respect for a decision -to the contrary by the United States Court of Appeals for the Fifth Circuit in Associated Indemnity Corp. v. Bush, 201 F.2d 843. In that case the Court held that a crew member of a drilling carpool who was on his way to pick up ice for transportation to his place of work was in the course of his employment when injured, in an automobile accident even though traveling on a direct route to his place of work.

The generally accepted test tó be used in applying the “dual purpose” rule- is found in the opinion of Chief Judge Cardozo in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, in this language:

“The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. [Case cited.] If, however, the work has no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

Judged by that test, there was no sound basis for saying that any member of the drilling crew carpools in Forson and Bush was in the course of his employment at the time of the automobile accidents.

In Marks v. Gray, Chief Judge Cardozo was writing in a frame of facts involving an out-of-town personal trip during which the employee agreed to perform a minor service for the employer. Application of the test is simpler when a special mission type of journey is involved; but Larson states that whether “coming and going” trips are personal or are in the course of employment “is determined by the same principles that apply to out-of-town trips under Marks v. Gray.” Larson’s Workmen’s Compensation Law, Vol. 1, p. 244, § 18.13. Larson suggests, however, that thp test announced in Marks v. Gray needs amplification, and puts his amplification in these words:

“One detail must be stressed to make this rule complete: it is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particu-' lar employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been-chosen; but if the trip would ultimately have had to be made, and if the employer got this necessary item of travel accomplished by combining it with this employee’s personal trip, it is accurate to say that it was a concurrent cause of the trip, rather than an incidental appendage or afterthought.
“Once this test is satisfied, there is no occasion to weigh the business and personal motives to determine which is dominant. * * * ”

Although expressly approved elsewhere, see Brown v. Arapahoe Drilling Company, 70 N.M. 99, 370 P.2d 816, the Larson amplification seems not to have been authoritatively adopted and applied in Texas to “coming and going” travel. We do not regard Knipe v. Texas Employers Ins. Assn., Tex.Civ.App., 234 S.W.2d 274, affirmed 150 Tex. 313, 239 S.W.2d 1006, as adopting it. The employee in that case was injured while en route from his place of work to the town of his residence, but he was traveling on company time, for which he was being paid, to perform a special mission before going home. Jones v. Texas Indemnity Co., (1949), Tex.Civ.App., 223 S.W.2d 286, writ refused, may also be explained on its peculiar facts. Indeed, the Larson amplification seems to have been rejected in Insurors Indemnity & Ins. Co. v. Lankford, Tex.Civ.App., 150 S.W.2d 288, no writ, and to have been expressly rejected by the Legislature in the second part of Section lb, Art. 8309. The language in Section lb requires an evaluation of the personal and business purposes of a dual purpose trip in determining whether an injury to the particular employee making the particular trip occurs in the course of employment. It follows from the views stated here that what was said in the opinion in Forson was not necessarily approved by this Court as the proper reason for the judgment denying a recovery of benefits.

Having thus concluded that Janak is not precluded from a recovery by the mere fact that he was a passenger member of the carpool at the time of his injury and that his rights are the same as the rights of Draplia, we must yet determine whether under Section lb there is any basis in the evidence for saying that the travel to the place of injury was in the course of his employment. Inasmuch as the transportation was not furnished or paid for by the employer and was not under its control, the question resolves itself to a determination as to whether Draplia was “directed in his employment to proceed from one place to another place.”

We need not rest our answer to the question on the express direction given by the driller to Draplia to go from Yorktown to Runge. In Jecker v. Western Alliance Insurance Co., Tex.Sup., 369 S.W.2d 776, we held that the direction “to proceed from one place to another place,” of which Section lb speaks, can be an implied direction. But by the very language of the section the implied direction to the employee must be “in his employment,” and the travel thus must be in furtherance of the business of the employer. We cannot imply a direction to proceed from one place to another when the travel is for reasons or purposes purely personal to the employee. In Jecker we held that there was evidence to support the jury’s finding that the travel was in furtherance of the employer’s business. The question here is a much closer one.

The injury to Janak did not occur on the regular coming-and-going route of travel; it occurred during a deviation from that route and before the crew had returned to it. There is in the record adequate evidence that the crew would not have deviated from the route through Gillett if it had not been necessary to go to Runge to obtain ice. As a matter of fact, testimony of the'crew members to that effect is undisputed. So the question narrows once again: Was the travel during the deviation for a purpose in furtherance of the employer’s business? We hold that there is evidence in the record to support the jury’s finding that it was.

The record reflects that it is customary in the drilling business for drilling crews to obtain and transport both ice and water when none is available at a drillsite; and the custom is not dependent on whether the employer or one of the employees pays for the ice. In this case the “toolpusher,” the boss of drilling operations, knew that the crew must procure ice if they were to have any for their water. The record shows that the work of a drilling crew requires hard physical labor and that the October weather was warm. Although there is some dispute in the evidence as to whether the employer in this case was to reimburse crew members for any sums paid for ice, the record is clear that it is customary for a drilling contractor to pay. On the basis of these facts we think the jury was justified in concluding that ice for the water to be drunk by the employees was reasonably essential to continuation of the drilling operations, and thus that the deviation to obtain it was impliedly directed by the employer.

If the deviation to Runge had been for the purpose of picking up tools essential to the drilling operation, the travel would clearly be impliedly directed by the employer. On the other hand, if the deviation to Runge had been for the purpose of permitting one or more of the crew members to buy a particular kind of hamburger for lunch, the travel would just as clearly not be impliedly directed by the employer. The deviation to obtain ice falls somewhere in between. Ice for the water was perhaps not absolutely essential to continuation of the drilling operation, but it is sound to say that it was reasonably essential to a satisfactory continuation thereof. The necessity for the deviation may be compared to the necessity in the “personal comfort” cases in which an employee turns aside from his on-the-job work to get a drink, get warm, get fresh air ■ or go to a restroom. As to these cases, Larson states that “the wants ministered to are so obviously in the category of necessities that no. = question arises about their being basically in the course of employment”-; and that “The only issue on which compensation is sometimes denied is that of seeking these facilities in - an unreasonable manner.” See Larson, supra, § 21.50. In refusing writ of error in Southern Surety Co. v. Shook, Tex.Civ.App., 44 S.W.2d 425, we approved this language found at page 427 of the opinion: “When a man is employed to work at any job, the fact that he is human, with ordinary human habits and requirements, is necessarily taken into consideration.” The fact that it is customary in the drilling business for the employer to pay for ice is evidence that in hot or warm weather ice in the drinking water is reasonably necessary to furtherance of the business.

In addition to the “no evidence” point, the Court of Civil Appeals had before it a point of error asserting that the jury’s answer to Question No. 1 was so contrary to the overwhelming preponderance of the evidence as to be manifestly wrong and unjust. The Court appears to have sustained that point also. It is obvious, however, that it did so under a misconception of the law applicable to the facts in the case. In that situation it is our practice to remand the case to the Court of Civil Appeals for further consideration of the point under the proper rule of law, rather than to the trial court for retrial. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 264 S.W.2d 689; Hale v. Texas Employers Ins. Assn., 150 Tex. 215, 239 S.W.2d 608, 617-618.

The judgment of the Court of Civil Appeals is reversed and the cause is remanded to that Court for further consideration.

GRIFFIN, J.,

dissenting.

The majority opinion wholly disregards the express statutory language of Article 8309, Sec. lb, Vernon’s Annotated Civil Statutes. This was added by the Legislature in 1957 >to cover just such situations as we have here, and expresses the legislative intent that employees in Janak’s situation should not be held to have sustained an injury in the course of their employment.

I therefore respectfully dissent.