author: MASSEY, Chief Justice.

text:
    CITY OF WICHITA FALLS et al., Appellants, v. Virgil D. EVANS et al., d/b/a Save-Way Cut Rate Package Store No. 1, Appellees.
    No. 16777.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 9, 1966.
    Rehearing Denied Jan. 13, 1967.

      H. P. Hodge, Jr., City Atty., and -Malcolm L. Hughes, Asst. City Atty., Wichita Falls, for appellants.
    Spence, Martin & Richie, and Gene Richie, Wichita Falls, for appellees.
   OPINION

MASSEY, Chief Justice.

This case involves a declaratory judgment sought by owners and operators of certain property within' the City of Wichita Falls to determine whether a certain ordinance of the city prohibited the use of a newly erected building as a liquor store. It was the contention of the city that such use was prohibited, while the owners/operators thereof .believed the use was authorized under the ordinance. This was an actual, real, bona fide, and justiciable controversy as to which a suit for declaratory relief was authorized. Vernon’s Ann.Tex.Civ.St. Art. 2524-1, “Uniform Declaratory Judgments Act.” 19 Tex. Jur.2d 140 et seq., the Chapter on Declaratory Relief.

The city’s first four points of error attack the trial court’s jurisdiction and authority to usurp what is contended to constitute the city’s police power. The injunction which was issued by the trial court pending final hearing and determination was not one which enjoined the city from instituting criminal proceedings. The trial court did have jurisdiction. The points of error are overruled.

The ordinance in question was Wichita City Ordinance No. 1416. The original ordinance prohibited the sale of spirituous, vinous or malt liquors within the city’s limits, except for areas prescribed. The premises of those who desired to (continue to) operate a liquor store was not within the excepted area. However, for more than twelve months before the city had incorporated the subject premises within the limits of the city such lay without its boundaries. Therefore it is not a question but that the liquor business had been lawfully conducted thereon under an amendment to the aforesaid ordinance prior to the use of the new building.

The amendment provided: “In recognition of the principle of non-conforming use, when an area is annexed to the City limits of the City of Wichita Falls, Texas, that contains businesses which have been operating in said area for a period of no less than 12 months under a Package Store Permit, a Retail Dealer’s On-Premises License or a Retail Dealer’s Off-Premises License as defined by the Texas Liquor Control Act, those businesses which have existed for such period of time shall be allowed to continue in the same location * * *." Emphasis supplied. Nowhere in the ordinance is mention made of structures on any premises or at any location. The city is in • our opinion attempting to assert rights which it might have had were there provisions in the ordinance relative to structures; but there were no such provisions..

The land on which the liquor store was and had always been situated was a tract, approximately 60 x ISO feet, at an intersection. The evidence established that the whole tract was considered by the Texas Liquor Control Board as the “premises” to which its licenses had application. The building from which the business had been transacted was originally a small structure so located on the tract that there was room to construct a new building thereon without removing the old. Such a new building was there erected, with the stock of goods removed from the old into the new structure and a continuance of the business conducted therefrom with no period of discontinuance. Then the old building was removed. The new modern and enlarged structure was only about one foot from the site of the old, but on a new foundation.

Trial was before the court, without intervention of a jury, and decision was that the conduct of the liquor business from the new building was within the protection of that part of the ordinance above quoted. A Declaratory Judgment to such effect was rendered by the trial court. In the judgment it was held that the new building and premises from which the business was operated was in the “same location,” within the meaning of that portion of the ordinance from which we have copied.

The trial court had no need to look beyond the express provisions of the ordinance. The only necessity was to find whether the business was being conducted from the “same location.” The meaning and application of the term “same location” is proper to be construed in the light of the pertinent subject matter and the context in which it is used. S3 Tex.Jur.2d 214 “Statutes,” § 147 “Determination of meaning (of words and phrases)”; City of Wink v. Wink Gas Co., 115 S.W.2d 973, 978 (El Paso Civ.App., 1938, error refused). Decision involved a mixed question of law and fact under circumstances of the case. Here the trial judge discharged the combined function of trier of both fact and law. He found the important factual elements against the City of Wichita Falls, and based thereon applied that strict construction of the ordinance required by law. He did not err.

The point of error complaining of the court’s construction of the term “same location” is overruled.

There was a point of error complaining that the proper question determinative of the case was whether there had been an enlargement of a non-conforming use, rather than the mere question of whether such was at the “same location.” It is to be remembered that the amendment granted existing users exemption from the provisions of the orginal ordinance. Grants thereof are to be liberally construed. See 25 Tex.Jur.2d 7 “Exemptions,” § 5, “Construction of statutes.” From the evidence in the case an enlargement of the premises or use of the premises is not involved. The only enlargement would lie in the amount of business transacted from the 60 x 150 feet premises. . Such is not a proper subject of zoning ordinances and Ordinance No. 1416 did not attempt to exercise any control over it. The point is overruled.

Judgment is affirmed.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. J. D. DOOLEY, Appellee.
    No. 4534.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1966.
    Rehearing Denied Dec. 8, 1966.
    Ñaman, Howell, Smith & Chase, Louis Muldrow, Waco, for. appellant.
    Tom Beard, Hillsboro, for appellee.
   OPINION

TIREY, Justice.

This action was brought by Dooley to recover compensation benefits, and the jury answered all special issues favorable to him, and the court’s judgment awarded him a recovery of benefits for total and permanent disability in a lump sum in keeping with the verdict.

Dooley went to trial on his original petition. Pertinent to this discussion he alleged :

“Plaintiff says that he has had no medical training and cannot describe his injuries in exact language; he says, however, that while he was working as a driver and deliveryman for Julius Crain in his business as a consignee of the Sinclair Oil Company as he was delivering gasoline to a customer, plaintiff was standing on the running board of a truck and had hold of a handrail used to assist in entering and leaving the cab of the truck. Plaintiff’s foot slipped off of the running board of the truck, thus jerking, tearing and damaging the muscles, ligaments and tendons of his right arm, right shoulder and upper back at the point where they attach to the upper arm bone and extending over to and at the point where they attach to his back.
“These injuries have rendered him unable to do the ordinary tasks of a workman to such an extent that he can both secure and retain employment doing ordinary manual labor, and therefore he is totally and permanently disabled within the meaning of the Texas Workmen’s Compensation Act.
“The plaintiff says that if at the time the accidental injuries above enumerated were sustained the plaintiff was suffering from arthritis or any other disease or condition, then that the same was not disabling but that the injuries above complained of caused such disease or condition to become aggravated or excited so that it also became a producing cause of the plaintiff’s disability.”

The judgment is assailed on what appellant designates as forty-three points. However, it says that its contentions fall into three general categories: (1) no evidence; (2) weight and preponderance of the evidence, and (3) defects in the trial court’s charge. Plaintiff sought recovery on the basis of general injury. Only three witnesses testified, namely: Julius Crain, plaintiff’s employer; plaintiff, and Dr. Shirey, the treating physician. Mr. Crain, the employer, testified to the effect that plaintiff was in his employ and was driving a truck for him, delivering oil products to his customers, and that plaintiff reported to him that he received an injury to his right arm around the first week of September, about September 8th, and he stated to his employer that he slipped from the truck and injured his right arm in falling; that plaintiff did not describe the injury to him, but told him in effect that his right arm hurt him and that he complained of his right arm, and that in attempting to work in loading and unloading the truck plaintiff complained of inability to do the work because of the injury he sustained to his right arm. The plaintiff, in describing his injury, described it to the effect that while in the course of his employment he undertook to get off of his truck and that as he did so: “I caught my hand and arm up in that door and pulled all of my weight down to the ground. Well, I run around there like I don’t know what for about 10 or 15 minutes, it hurt so bad I didn’t know what to do. I thought it was broken and I commenced trying to raise it up and I said well, I guess I didn’t break it, but it hurt so bad.” He further said with reference to the injury:

“A. Well, it pulls from back here in this shoulder way back here somewhere plumb on down into the elbow.
* * * * * *
A. Up in there somewhere and now, when I strain or pull on it any way, it pulls back there still.
******
Q. Down over your shoulder and into your arm and down to your elbow?
A. Well, it don’t make any difference. That is as high as I can get the arm right now and I don’t care how I pull it and it don’t make any difference how I shape it or how I pull it, it hurts. Just a stiffness there. There is still quite a bit of hurt when I move around this way so, if I was trying to do anything with it, I don’t think that anyone could continue on with a hurt all day long and rest at night and hold a job. I don’t think they could.”

Dr. Shirey testified in part as follows:

“Q. Doctor, would you explain exactly what this injury to this muscle here was?
A. The muscle that—
Q. Maybe I can get Mr. Dooley up here and you can demonstrate to the jury what it is?
A. We have one large muscle. Actually, we have any number of muscles, but we have one large muscle that fits right across like this and comes down to about a point and fastens right here. It is the principal muscle that we have for elevating the arm.
Q. Where does it join over in the back?
A. It fits completely across to the collar bone and the shoulder blade and various other muscles and comes down in a triangle shape. That is why it is called the deltoid muscle, meaning triangle and this was always his point of tenderness that he would always come back to.”

Dr. Shirey further stated: "It is the point about four or five inches below the shoulder joint, at which site the deltoid muscle attaches to the arm bone, to the humerus.

******
Q. Now, Doctor, he had an injury of that muscle, didn’t he?
A. I thought the primary injury was to the tendon of the muscle and technically the tendon is part of the muscle, but the real injury I think was at the point of attachment of the muscle.
Q. But there would be a bruising type injury to the muscle?
A. It is not unusual to have radiated pains into a pain and into an area around in the joints and other areas from any injury of this type.
* * * . * * *
Q. Now, all the time you treated Mr. Dooley, he did complain not only at the maximum point of tenderness, but also up into and over the shoulder blade itself?
A. As I recall, he complained mostly of pain at the point of maximum tenderness, but also at other points about the shoulder, particularly in the region about the shoulder blade.
Q. If you would, Doctor, it might help us if you would just read each of your notes as they come, just on the front sheet here. I think you have a kind of a summary of what you wrote down each time he visited you in chronological order?
A. On November the 11th, 1964, I made a note, ‘Injected the right trigger.’
Q. Let me see?
A. November the 11th, 1964 ‘Injected trigger points of right shoulder with two percent procaine.’
Q. What are the trigger points of the right shoulder?
A. Trigger points are tender areas.
Q. * * * November the 14th, ‘Advised patient to enter hospital’. November 28th, ‘Patient much better’. See again on December 9th, ‘may be able to go to work on December the 15th.’ On December the 9th, ‘Right shoulder still sore, but better. Advised very light exercise, such as brushing hair, walking wall and so on’. * * * On December the 16th, ‘Patient still complaining of pain in right shoulder. Urged to begin exercises to insure against frozen shoulder’. December 23rd, ‘Still hurts a lot in the right shoulder with very much movement. Urged patient to continue to use it to keep it limber’. December 30th, ‘Patient admits that he feels better and that he has a better range or motion of the right arm and shoulder’. January the 11th, 1965, ‘Patient seems better. Still having some trouble getting right hand behind him or above his head. Having a lot less pain. * * * ’. See again about February the 1st, ‘Do not believe patient could return to work before then.’ February the 1st, ‘Patient remains about the same. * * * ’. February the 11th, ‘Still hurts with all ranges of motion of right arm above the shoulder level.’ * * * February the 9th, ‘Patient wants to put in for social security disability, which I believe he is entitled to. * * * ’. 5th, ‘talked to patient and advised him that I preferred not to send any disability papers until Workman’s Compensation case was settled.’
Q. Now, Doctor, when you told the jury that this * * * man was five percent disabled, you were taking into consideration his whole condition ?
A. That is correct.
Q. And do you believe that he is able to work?
A. It was my opinion at the time that I wrote my various notes about him that he could, jobs not involving above the shoulder employment.
Q. He could lift all he wanted to ?
A. I don’t believe lifting would have any effect on it.
Q. But at that time, you believe that he was five percent disabled?
A. My five percent — to me, the five percent disability means that a man without special skills could find 95 other jobs that wouldn’t involve work about his head.
Q. But if he couldn’t do a job with work above his head, you would have to change your opinion?
A. If the only kind of employment he could find was employment involving something from here up then, I would have to say he would be totally disabled.
Q. And if he couldn’t lift and the only job he could find was one that required lifting, you would also say he was totally disabled?
A. I didn’t say he couldn’t lift.
Q. If he couldn’t lift, you would have to change your opinion?
A. That is right.”

Appellee, in his brief, says:

“Appellant’s basic contention is that this is not a general injury and there is no evidence to sustain the jury findings that it is in fact a general injury.
“The most salient evidence in this regard was elicited from Dr. Shirey on cross examination when he read his own records to the jury. This evidence revealed that the injury was indeed to the arm, shoulder and back. It also revealed that there was considerably more treatment to the shoulder and back than to the arm.”

We have carefully considered the evidence in this cause and we are of the view that neither the testimony of the appellee nor the testimony of the treating physician will support the jury finding that the appellee was totally and permanently disabled.

Going back to Dr. Shirey’s testimony we find that he stated:

“There was, in his x-rays, what we consider to be * * * an area of what we call periosteal irritation. The covering membrane of a bone is called the periosteum and this muscle attaches into that thick dense tissue and there was a little area in his x-ray that looked as if it might be a slight tear at that point in this tissue.
Q. Now, doctor, he had an injury to what muscle, didn’t he? * * *
A. I thought the primary injury was to the tendon of the muscle and technically the tendon is part of the muscle, but the real injury I think was at the point of attachment of the muscle.”

Dr. Shirey further stated:

“It is not unusual to have radiated pains into and pain into an area around in the joints and other areas from an injury of this type.
******
Q. Doctor, during your treatment of Mr. Dooley, did he also complain not only of this tenderness, but also of the pain that radiated up and affected his whole shoulder ? (emphasis added)
A. I believe that is right. I am speaking now that this was the maximum point.”

We think the record is clear from a careful consideration of the testimony of all three witnesses, that appellee received an injury to his right arm, but we are of the further view that the evidence shows that the injury is to the right arm only. It is also true that the record reveals that plaintiff suffered some radiation of pain from the arm into the shoulder, but there is an absence of testimony showing any damage or harm to the physical structure of the shoulder or back. It is true that there is testimony from the appellee to the effect that he experienced a pulling sensation in his shoulder at times, but this pulling sensation came to him upon the use or attempted use of his right arm. We think the factual situation here is very similar to the factual situation which was before our Supreme Court in Liberty Mutual Insurance Company v. Lee, 381 S.W.2d 172. In that case, the plaintiff alleged a general injury, and there was no question that he had sustained an injury to his leg, but the case was pleaded and submitted to the jury on the basis of a general injury. There was no pleading of injury extending to or affecting other parts of the body. In the case before us we have previously stated that plaintiff alleged a general injury to his arm, shoulder and back. There is no pleading to the effect that appellee suffered a specific injury to his right arm, extending to and affecting other parts of his body. A careful examination of the evidence before the Supreme Court in the Lee case, and the record in this case, will reflect that the injuries are very similar in effect, save and except in this case we have an injury to the right arm instead of a leg injury. As we read the Lee case, there is probably more evidence of a general injury in that case than there is in the case before us. In the Lee case, the evidence showed that the blow that plaintiff sustained to his left knee was severe, and that he later had pain in the knee and in his leg, radiating to his left side and back, but the Supreme Court held that there was no evidence of injury other than to the leg and to the knee. Further considering the Lee case, the plaintiff in that case sustained an injury to his left knee, and the injury was such that it required an operation, and that after the operation, when he worked, his leg and knee would swell after a few hours, and that a small place in his back would hurt, and his condition was such that he could not get any sleep at night; however, plaintiff did not plead that the injury he sustained extended to and affected other parts of the body, and no issues on these matters were submitted. That is the exact situation here. In the Lee case there was testimony to the effect that the plaintiff’s knee condition was permanent, but the evidence was without dispute that Lee was still working and that the doctor said he could use the leg, but that the whole leg was involved, but that claimant was not totally disabled. In the case at bar, plaintiff can use the right arm, but that he has a limited use of the right arm when he attempts to lift things that must be lifted above his head.

Going back to the Lee case, the court expressly held, after detailing the injury to Lee’s knee and leg, that: “We find no evidence that would justify the recovery for total, permanent disability and its re-sulitng incapacity.” See Texas Employers’ Insurance Association v. Brownlee, 152 Tex. 247, 256 S.W.2d 76. In the Lee case, we find the following statement:

“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. * * * ”

See Texas Employers’ Insurance Association v. Espinosa, Tex.Civ.App., 367 S.W.2d 667.

In Travelers Ins. Co. v. Marmolejo, Tex.Civ.App., 383 S.W.2d 380, our Supreme Court made the following statement:

“It was held in Espinosa and Brownlee, moreover, that pain caused by an injury to a particular member and felt in another part of the body is not, of itself, sufficient to support a recovery for anything more than the original specific injury.” (emphasis added).

In the cases cited, it is a settled rule in Texas that a specific partial incapacity cannot develop into a total permanent injury under Article 8306, Sec. 10, of the Workmen’s Compensation Act, as , fully explained by our Supreme Court in the Lee case.

That leads us to say that since there is no evidence of any injury sustained by ap-pellee other than the injury to the right arm, and since we are of the further view that there is no evidence of any total general disability, and being of the further view that the evidence shows, as a matter of law, that appellee had no radiation of pain or involvement of the shoulder, except on use or attempted use of his right arm that the appellee’s only compensable incapacity is confined to his right arm. Being of this view, this will require that this cause be reversed and remanded for a new trial in order that the court may fix appellee’s compensation for the injury sustained to his right arm. See Aetna Casualty and Surety Company v. Bryant, Tex.Civ.App., 383 S.W.2d 229, (n. w. h.).

In the event we are mistaken in the foregoing views expressed, then and in such event we are of the further view that the verdict of the jury in which it found total and permanent disability for the claimant is so against the great weight and preponderance of the evidence as to be wrong, and this view would require that the cause be reversed and remanded.

Accordingly, Appellant’s points 1, 2 and 19 are sustained.

Because of the views here expressed, and because the cause will have to be reversed and remanded, further comment would be of no avail, nor would it be of any value to comment further on the assignments made by appellant.

For the foregoing reasons, this cause is reversed and remanded.


author: COLEMAN, Justice.

text:
    Eunice Schmidt MOBLEY, a Widow et al., Appellants, v. The RHEEM MANUFACTURING COMPANY et al., Appellees.
    No. 14914.
    Court of Civil Appeals of Texas. Houston.
    Dec. 22, 1966.
    Rehearing Denied Jan. 12, 1967.
    Fred Parks, Charles F. Oakley, Houston, for appellants.
    Vinson, Elkins, Weems & Searls, Tom Weatherly, James Greenwood, III, Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Baker, Botts, Shepherd & Coates, John F. Heard, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from an order denying a “Motion to Correct the Record.” It is appellants’ position that this cause was included in a judgment dismissing a number of cases by reason of clerical error. Appel-lees contend that if the cause was included in the judgment in error, it was a judicial error and was subject to correction only by bill of review.

This case, along with a large number of other cases pending on the docket of the 127th District Court, was set for trial on a specified date. The lawyers in all the cases were notified that on the date specified the cases would be dismissed for want of prosecution unless there was an announcement of ready for trial.

At the proper time the attorney for appellant was present for the call of the docket prepared to announce ready for trial. The judge of the 127th District Court then announced to the lawyers assembled that if any of them wished a case retained on the docket, the clerk was authorized to strike it from the dismissal docket on request. The attorney testified that he requested of the clerk that this case and one other be removed from the dismissal docket. The testimony shows that cases were removed from the docket by drawing a line through the style of the case on the docket and that this was done by the clerk at the time the request was made.

The attorney testified that he thought he saw the clerk strike both of his cases from the docket. This case appeared on the non-jury dismissal docket and was struck from that docket. It was also written in on the jury docket and was not struck from it. The clerk testified that a jury fee was paid in the case after the dismissal dockets were prepared and that he struck the case from the non-jury docket and entered it on the jury docket soon after the jury fee was paid, which was several weeks prior to the date set for announcements.

Whether by reason of mistake of the clerk in failing to strike this case from the list to be dismissed, or by reason of mistake on part of the attorney in failing to request its removal, the case remained on the dismissal docket. The clerk prepared a judgment dismissing all cases remaining on the dockets and presented the judgment to the judge, who signed it, and had the judgment entered in the minutes. None of the lawyers appearing in this case knew that it had been dismissed until some months after the judgment became final.

The trial judge made the following statement for the record:

“I intended to dismiss every case on both dismissal dockets that I had not struck by order to my Clerk or where the lawyers had not given the number and the style of the case on the dismissal docket on the morning of April Sth to my Clerk. It was my intention to dismiss every case on that list at the time I signed this order, presuming and assuming that every case that should have been struck from that docket under my orders had been stricken.”

Whether or not the clerk made a mistake in failing to strike this case from the dismissal docket, it was dismissed by the judgment rendered by the court. While it appears that the trial court would not have dismissed the case had he known that its removal from the dismissal docket had been requested, he did not know this. The judgment entered "ift the minutes of the court was the judgment rendered. While one might consider that the judgment of dismissal as to this cause was rendered by mistake, it cannot be said that the dismissal of this cause was a clerical error. A judgment rendered by reason of fraud, accident, or mistake can be corrected after it becomes final only by bill of review. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (Tex.Com.App.1936, opinion adopted); Eskridge & Williams v. Merchants State Bank & Trust Co., 1773 S.W.2d 518 (Tex.Civ.App.,—San Antonio 1943, writ ref.).

The announcement by the court that cases would be removed from the dismissal docket' on request does not amount to the rendition of a judgment from the bench that any specific case would or would not be dismissed. It was a statement of intention. The court abandoned his previously announced intention to require announcements of ready in each case. He merely announced that no judgment would be rendered in any case where the interested lawyer requested its removal from the docket.

The Court on its own motion has questioned its jurisdiction of this appeal, and requested that the parties file briefs on this point. In Gordon v. McCall, 56 S.W. 219 (Tex.Civ.App.1900), the Court held that where a judgment was rendered on a jury verdict and proper notice of appeal was not given, the appellate court did not have jurisdiction of an attempted appeal from the denial of a motion to correct the judgment so as to make it conform to the verdict. It cannot be ascertained from the report whether the claimed error was in copying the verdict or in ascertaining its legal effect. No answer to the question is found in Wichita Valley Ry. Co. v. Peery, 88 Tex. 378, 31 S.W. 619, though it is posed. See also Garcia v. Jones, 147 S.W.2d 925 (Tex.Civ.App.—El Paso 1940); and Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040.

The holding in Harris v. Stark, 101 Tex. 587, 110 S.W. 737 (1908), indicates that the decision of the trial court on a motion such as the one involved here is a final judgment on the matter then in controversy and can be reviewed only by appeal. This view is supported by Stauss v. Stauss, 244 S.W.2d 518 (Tex.Civ.App.—San Antonio 1951), where the court entertained, without discussing the question of jurisdiction, an appeal from an order denying a motion to correct an alleged clerical error in a judgment.

Rule 316, Texas Rules of Civil Procedure, authorizes applications for the entry of a judgment nunc pro tunc to correct mistakes in the record of a judgment or decree. As a practical matter a fact finding by the judge is required. The judge should proceed to grant such relief only if the evidence is clear, satisfactory and convincing that a clerical error was made. Stauss v. Stauss, supra. The trial judge’s order finally determined the matter at issue. Boggess v. Harris, 90 Tex. 476, 39 S.W. 565 (1897); Willis v. Smith, 90 Tex. 635, 40 S.W. 401 (1897). The order is one from which an appeal may be taken.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    TEXAS EMPLOYMENT COMMISSION et al., Appellants, v. GULF STATES UTILITIES COMPANY, Appellee.
    No. 4149.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 9, 1966.
    Rehearing Denied Jan. 13, 1967.

      Waggoner Carr, Atty. Gen., Sam Lane, Asst. Atty. Gen., Austin, Sam Houston Clinton, Jr., Austin, for appellants.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   GRISSOM, Chief Justice.

This is a suit by Gulf States Utilities Company against the Texas Employment Commission and Mrs. Marjorie C. Gil-chriest seeking to set aside the decision of the Texas Employment Commission that Mrs. Gilchriest was not disqualified from receiving benefits under the Unemployment Compensation Act. In a trial to the court, the relief prayed for by the utility company was granted, the decision of the Commission was set aside and it was directed to enter an order that Mrs. Gilchriest was disqualified to receive benefits and that benefit wages not be charged back to her employer’s account. The Texas Employment Commission and Mrs. Gil-chriest have appealed.

Appellants’ points are, in effect, that there is no evidence to support the court’s finding (11) that Mrs. Gilchriest left her employment voluntarily; that said finding is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust and the holding that she was disqualified to obtain unemployment benefits was, as a matter of law, erroneous because separation from her employment was not voluntary. Appellants’ fourth point is that, even if Mrs. Gil-chriest’s separation from her employment should be held voluntary, because of an agreement made long before her separation to resign upon reaching the fifth month of pregnancy, the provisions of Article 5221b-13(a) prohibit such agreement and the court erred in giving effect thereto. Appellants’ fifth point is that the court erred in its conclusion of law (2) that the findings of the Texas Employment Commission were not supported by substantial evidence.

We sustain all of appellants’ points of error. We stress our conclusion that the findings of the trial court that Mrs. Gilchriest left her employment voluntarily is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust and that the holding of the court that said finding of the Commission was not supported by substantial evidence is clearly wrong. The Unemployment Compensation Act was passed for the purpose of relieving the economic plight of people who, in the language of Article 5221b-2, were able and available for work and not disqualified to receive its benefits, unless they left their last work voluntarily without good cause connected with their work, within the meaning of Article 5221b-3. We think the evidence shows conclusively that Mrs. Gilchriest did not leave her work voluntarily without good cause connected with her work. In any event the trial court’s holding to the contrary is contrary to the overwhelming weight and preponderance of the evidence. Briefly stated, the substance of the testimony relative to the controlling question of disqualification is that Mrs. Gilchriest was employed by Gulf States Utilities Company while she was still single; that she continued to work for them after she married; that before her marriage she learned from senior employees that there was a rule or policy of her employer that an employee was required to quit work at the fifth month of pregnancy; that when her pregnant condition was verified by a doctor she immediately reported it to her superior; that they concluded that her fifth month of pregnancy would be reached on October 30, 1959; that, believing that she had to quit because of such company rule, she quit on October 30th, and signed a statement to the effect that she was quitting voluntarily; that in fact she did not want to quit; that she was not financially able to quit work; that she was able and available for the work she was doing, which was done sitting down and using her hands; that her doctor agreed with her belief that she was able to work and not more prone to accident because of her condition and that she left the company only because of her belief that she had to do so because of said policy of her employer.

The outstanding authority in Texas for interpretation of the Unemployment Compensation Act is Texas Employment Commission v. Huey, 161 Tex. 500, 342 S.W.2d 544, 545. There the Commission and the trial court denied employees the benefits of said Act because they had agreed, through their unions, to a certain vacation period without pay which coincided with the employer’s shutting down the plant and were therefore disqualified from receiving benefits while the employer had its plant substantially shut down and they were unemployed and unpaid. The employees had not been employed long enough to be entitled to a vacation with pay and the company gave such claimants a vacation without pay while it shut down the plant. The Supreme Court said the case was one of statutory construction. The question being, were claimants eligible for benefits, or were they disqualified because of said agreement in the union contract. The Court of Civil Appeals reversed the judgment and held that the claimants were not disqualified because of the union contract to receive benefits under the Act and because they were able and available for work and they had not left their employment voluntarily without good cause connected with their employment. The Supreme Court affirmed that judgment. It held that the shutdown at vacation time was for the benefit of the employer, not the employees. They quoted with approval from 30 A.L.R.2d 366 the conclusion that the more realistic view was that such employees were out of work through no fault of their own and were therefore entitled to benefits under said Act. The court held that under the stated facts the claimants were not disqualified by virtue of said contract between their union and their employer and that they did not leave their employment voluntarily without good cause connected with their work. It pointed out, at page 551, that the Texas disqualification statute was amended in 1943 to add a provision that to be disqualified a person must have left his employment voluntarily without good cause connected with his employment. The court concluded that the Legislature had specifically provided by said amendment that for a person to be disqualified he must have left his employment voluntarily without good cause connected with his work. At the same time our Supreme Court held in Texas Employment Commission v. Hansen, 342 S.W.2d 551, that employees who were laid off without pay during a plant shutdown ordered by the employer did not leave their work voluntarily without good cause connected with their work and therefore they were entitled to unemployment compensation. The same holding was reiterated in Texas Employment Commission v. Amlin, 161 Tex. 606, 343 S.W.2d 249, 251, where our Supreme Court said that it recognized there were other jurisdictions, with similar statutory provisions in which recovery was denied under similar facts but that it preferred to follow the holdings of the Connecticut Supreme Court and the New Jersey Supreme Court in Schettino v. Administrator, 138 Conn. 253, 83 A.2d 217; Teichler v. Curtiss-Wright Corp., 24 N.J. 585, 133 A.2d 320, and Watson v. United States Rubber Company, 24 N.J. 598, 133 A.2d 328.

In accord with the reasoning of the authorities cited and many others, we agree with appellants that there was no evidence to sustain the conclusion that Mrs. Gilchriest was disqualified; that the finding that she was disqualified was so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and, further, that the court erred in its conclusion that the findings of the Commission under which Mrs. Gil-chriest was entitled to recover were not supported by substantial evidence.

The judgment of the trial court is reversed with directions to render judgment for appellants in accord with this decision.


author: CADENA, Justice.

text:
    COUNTY OF JIM WELLS et al., Appellants, v. Keith E. COOK, Appellee.
    No. 14505.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 14, 1966.

      John C. Mullen, Werner A. Gohmert, Alice, for appellants.
    Fischer, Wood, Burney & Nesbitt, Corpus Christi, Perkins, Floyd, Davis & Oden, Alice, for appellee.
   CADENA, Justice.

The County of Jim Wells and the members of its Commissioners’ Court, defendants, appeal from a judgment rendered in favor of plaintiff, Keith E. Cook, in a trespass to try title suit.

The present controversy was generated by, and involves the validity of, condemnation proceedings instituted by the County for the purpose of acquiring plaintiff’s land as right-of-way for the construction of County Road No. 199. Plaintiff’s challenge to the validity of such proceedings is based on the contention that, since his land is located within the corporate limits of the City of Alice, the County lacks the power to condemn it. The trial court, agreeing with plaintiff’s contention, held that the eminent domain proceedings, which were pending in the County Court at the time of the rendition of the judgment in this case, were null and void. The judgment in favor of plaintiff in this case is based on that holding.

At the outset, we are faced by the fact that, after the amount awarded by the special commissioners had been deposited by the County with the County Clerk, pursuant to the provisions of Article 3268, the County Court entered an order directing the County Clerk to pay $12,700.00, the amount of the award, to plaintiff. A check in this amount was mailed to plaintiff, who received it on October 12, 1963, and deposited it in his bank on the same day. Three days later, the County perfected its appeal from the commissioners’ decision to the County Court by timely filing its exceptions to the award.

Our Courts have consistently held that a landowner who accepts the amount awarded by special commissioners in condemnation cannot thereafter question the power of the condemnor to take his land. Plaintiff seeks to avoid the effect of this rule on the ground that, because of a conversation which he had with the County Attorney shortly after the commissioners announced their award, he was led to believe that the County would not appeal the decision of the commissioners. He testified that he would not have accepted the money, had he not been misled into believing that the County would make no effort to reduce the award.

For the purpose of this opinion, we accept plaintiff’s contention that, as a result of his conversation with the County Attorney, he was led to believe that there would be no appeal by the County. But even if we further assume, without deciding, that a condemnee who accepts the award under the mistaken belief, induced by the condemnor’s attorney, that the governmental agency would not seek to reduce the award, may upon learning of his mistake question the condemnor’s power to take, we see no way-in which that supposed rule would protect plaintiff here.

Immediately after the deposit of the award with the County Clerk, the County moved onto plaintiff’s land in preparation for construction of the road. Three days after plaintiff accepted the award, the County filed its objections thereto and, thereafter, plaintiff filed -a plea challenging the validity of the proceedings. Fourteen months after he had accepted the money, plaintiff filed this suit in the District Court. Meanwhile, construction of the road had been completed. At no time during this period of more than a year did plaintiff offer to return the $12,700.00. In fact, on August 30, 1965, more than two years after he had accepted the award, plaintiff, by a pleading filed in this case, insisted that he was under no obligation to return the money. Plaintiff’s pleadings in this case reflect that, during all of this time, he asserted the right to retain the $12,700.00, to retain his land, and to recover damages for what he insists was the unauthorized entry of the County upon his land. Even a judicial bakery is incapable of producing a cake which can be so often consumed.

In any event, the proceedings in condemnation were not void. Under Article 6674n-2, a county is empowered to condemn land within a municipality, with prior consent of the municipal governing body, where the acquisition of such land is, in the judgment of the commissioners’ court, necessary or convenient as right-of-way for any road “which forms or will form a connecting link in the county road system or a connecting link in a State Highway.” It is undisputed that on May 20, 1963, prior to the institution of the condemnation proceedings, the governing body of the City of Alice, by resolution, granted the County permission to condemn the land in question. On July 24, 1963, the Commissioners’ Court of Jim Wells County directed the County Attorney to condemn plaintiff’s land in order to obtain right-of-way necessary for the construction of part of County Road No. 199.

County Road No. 199 begins at a point on State Highway No. 44, west of the City of Alice. The road then runs in easterly and southerly directions to connect with U. S. Highway No. 281, within the City of Alice. Plaintiff’s land is the right-of-way for the easternmost segment of this road. This segment extends from a point just east of Goliad Road, within the corporate limits. It thus appears that the road which has been constructed on plaintiff’s land connects with the remainder of County Road No. 199. All of the conditions precedent to the County’s power to condemn the land in question are met.

Plaintiff next points out that the statement in condemnation filed by the County recites that the condemnor is exercising authority granted to it by Articles 3264 — 3271, inclusive, and contains no mention of Article 6674n-2. Plaintiff then argues that, since under the holding in Adams v. Rockwall County, 280 S.W. 759 (Tex.Com.App., 1926), the general condemnation statutes do not empower a county to condemn, for road purposes, land within the boundaries of a municipality, the statement shows on its face that the County here lacks power to take his land.

The statement filed by the County contains all of the allegations required by Section 1 of Article 3264. The fact that the County alleged that it was proceeding under the provisions of Articles 3264-3271 is of no consequence. Whether or not the County had power to condemn land under those statutes is immaterial, since ample authority is given by Article 6674n-2.

The failure of the statement in condemnation to allege the prior consent of the City of Alice to the taking of the land by the County was cured by supplemental pleadings filed in the County Court prior to the institution of the instant suit by plaintiff in the District Court. The only other defect in the statement was the failure to allege that the land in question was necessary for right-of-way for a road forming a connecting link in the county road system. Even if such omission rendered the statement subject to special exception, the proper place for condemnee to raise the question of defective pleadings is in the County Court. Defects in pleadings do not render the proceedings void.

Since the proceedings in condemnation were not void, the District Court was without jurisdiction to entertain plaintiff’s suit, and the overruling of the County’s plea in abatement, based on the pendency of the condemnation proceedings, was error.

The judgment of the trial court is reversed and judgment is here rendered dismissing plaintiff’s suit. Since the County’s cross-action for recovery of the money paid to plaintiff was conditioned on plaintiff’s success in his suit, that portion of the judgment granting the County recovery on its cross-action is also reversed and the County’s cross-action is also dismissed.

      . All statutory. citations refer to Vernon’s Annotated Civil Statutes.

      . City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, on rehearing, 44 S.W. 476 (1897); State v. Jackson, 388 S.W.2d 924 (Tex.Sup., 1966); Luby v. City of Dallas, 396 S.W.2d 192 (Tex.Civ.App., 1965, writ ref’d n. r. e.).

      . Cf. Luby v. City of Dallas, supra, n. 2, where the condemnee sought to condition his acceptance of the award by the filing of an instrument reciting that such withdrawal was without prejudice to certain objections and exceptions.

      . Ex Parte Edmonds, 383 S.W.2d 579 (Tex.Sup., 1964).

      . Id.

      . Ex Parte Barrett, 120 Tex. 311, 37 S.W.2d 741 (1931); Ex Parte Edmonds, supra, n. 4.


author: RUDDY, Judge. J. MORGAN DONELSON, Special Judge

text:
    Vita VACCARO, Plaintiff-Appellant, v. William MOSS, Defendant-Respondent.
    No. 31816.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.

      Edward F. Downey, John J. Delabar, Lawrence E. Ehrhart, Jack V. Hoskins. St. Louis, for plaintiff-appellant.
    Adolph Schwartz, St. Louis, for defendant-respondent.
   RUDDY, Judge.

This case comes to the writer on recent reassignment and is an action to recover damages for personal injuries and automobile damage, allegedly sustained by plaintiff as a result of a collision between automobiles operated by plaintiff and defendant. The jury rendered its verdict in favor of plaintiff and awarded her $1600 for personal injuries and $400 for property damage. The trial court overruled defendant's motion for judgment in accordance with his motion for a directed verdict, but sustained defendant’s motion for a new trial on the grounds that the evidence did not support the giving of instruction No. 3 on humanitarian negligence and also that said instruction permitted the jury to find that defendant could have avoided the collision by “stopping” his car and “slowing it down” when there was no evidence to support a finding that the collision could have been avoided by defendant “slowing” his automobile. This appeal is by plaintiff from the order and judgment of the trial court sustaining defendant’s motion for a new trial.

Defendant contends that plaintiff did not make a submissible case under the humanitarian doctrine, which was the only negligence submitted, and that his motion for a directed verdict at the close of all of the evidence should have been sustained. If this contention of defendant is true the alleged error in the giving of plaintiff’s instruction No. 3, if any, is immaterial. Davis v. Quality Oil Co., Mo., 353 S.W.2d 670.

In determining whether plaintiff made a submissible case under the humanitarian doctrine, we review the evidence from a standpoint favorable to plaintiff, give her the benefit of any part of the defendant’s evidence favorable to her and not contradicted by her own testimony or not contrary to her fundamental recovery theory, give her the benefit of the reasonable inferences from all the evidence, and disregard all of defendant’s evidence unfavorable to plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311; Davis v. St. Louis Public Service Company, Mo., 316 S.W.2d 494; Delay v. Ward, Mo.App., 262 S.W.2d 626. While a plaintiff is ordinarily bound by her own personal testimony, it has often been held that she is not conclusively bound by her own testimony or that of her own witnesses as to mere estimates of time, speed, and distance. Meier v. Moreland, Mo., 406 S.W.2d 97, Brooks v. Stewart, Mo., 335 S.W.2d 104, 81 A.L.R.2d 508. Further, plaintiff is not in all events conclusively bound by the adverse testimony of her witnesses, but she or other witnesses may testify to a contradictory state of facts, leaving the whole issue to be resolved by the jury in the light of all the facts and circumstances in evidence. McDonough v. St. Louis Public Service Company, Mo., 350 S.W.2d 739; Delay v. Ward, Mo.App., 262 S.W.2d 626; Goggin v. Schoening, Mo.App., 199 S.W.2d 87.

Applying the above stated rules governing our review we think the following summary a fair statement of the evidence which we feel is sufficient to support a submission under the humanitarian doctrine.

The automobile collision in which plaintiff was injured occurred on April 4, 1961, at 5:00 P.M. on Penrose Avenue in the City of St. Louis near its intersection with Grand Avenue in said city. It was daylight at the time. Plaintiff was driving her 1961 Chevrolet automobile west on Penrose and defendant was driving his 1959 Chevrolet Station Wagon north on Grand. Grand is a four lane north-south avenue and Penrose is a thirty foot east-west avenue with no centerline marking. The surface of both avenues is of blacktop or asphalt material. There is no traffic control on Grand, but there is a stop sign for west bound traffic on Penrose at Grand. The sign is located approximately eight to ten feet east of the east curb line of Grand. The collision occurred close to this intersection as defendant turned right into Pen-rose. The left fenders of both vehicles collided. After the impact plaintiff’s car was headed west and defendant’s station wagon was headed in a northeasterly direction at an angle to the street. The rear of his station wagon extended about one and one-half feet to four feet into Grand. Defendant testified that the overall length of his Chevrolet Station Wagon was eighteen feet, six inches and was six feet, six inches in width. Plaintiff’s witnesses testified that her Chevrolet Sedan was seventeen to eighteen feet in length and six feet in width. Plaintiff’s 14 year old son was a passenger in her car and defendant had one passenger in his car. Cars were parked in the east parking lane of Grand, but defendant testified that none were parked within seventy-five to eighty feet immediately south of the south curb of Penrose. Cars were parked on both sides of Penrose. A car was parked at the south curb of Penrose close to Grand, how close to Grand was never stated in the testimony. Plaintiff said a car was parked to her right at the north curb of Penrose before she got to the stop sign. At one place in her testimony she stated a car could have passed between her and the curb on her right. At another point in her testimony she said there was not enough room for another car to pass on her right. However, other witnesses for plaintiff stated that there was room on plaintiff’s right for another car to pass between her car and the curb when she was stopped at the stop sign.

Prior to the collision plaintiff had been driving westwardly on Penrose with the center of the street to her left.. In her testimony she maintained that she was left or north of the center of Penrose. Her son testified that as she was driving she was either on the center of Penrose “or she was either or a couple, three or four inches on the other side.” Plaintiff stopped her car a foot or foot and one-half east of the stop sign for west bound traffic on Penrose. She said she was north of the center of Penrose when she stopped. She had intended crossing Grand to proceed west on Penrose to visit her daughter who lived west, of Grand on Penrose. When she stopped her car near the stop sign she could see that the traffic passing in front of her on Grand was unusually heavy and she said she waited about three or four minutes prior to the collision, intending to proceed west across Grand when the busy traffic subsided. She first saw the station wagon of the defendant when she looked south, at which time he was “about three or four houses” away from Penrose. Plaintiff’s son said traffic on Grand was heavy and that his mother was stopped a foot or foot and one-half east of the stop sign about three or four minutes. Plaintiff thought defendant intended to turn east on Penrose “by the side of me * * * left side.” She said that defendant’s car “got right on top” of her and hit the left front fender of her car. She said the impact did not push her car to the side or backwards. A police officer with the Accident and Investigation Department of the St. Louis Police Department and plaintiff’s son testified that there was enough room for defendant’s car to pass with safety between plaintiff’s car and the cars parked on the south curb of Penrose. Both said there were ten to twelve inches “to spare.” Defendant said that when he was driving his car he thought he could not drive between plaintiff’s car and the cars parked at the south curb of Penrose, but after he got out of his car and looked the “situation over” he thought he could have made it. The police officer said defendant’s view of plaintiff’s car was unobstructed for a distance of fifty or sixty feet south of Penrose on Grand. Plaintiff’s son said he could see defendant’s station wagon when it was eighty feet south of Penrose and said defendant was then in the lane west of the curb lane. He said defendant’s car was going 20 m. p. h. at that point and was going 17 or 18 m. p. h. when it hit his mother’s car, which was still in a stopped position. He thought defendant “hit his brakes” when he was seven or eight feet from his mother’s car.

Defendant, Moss testified that he was driving north on Grand at 20 m. p. h., that he reduced his speed to 10 m. p. h. as he turned right into Penrose, and that he then saw plaintiff’s car thirty or forty feet east on Penrose about one foot over on his side of Penrose. He said he was on the south side of Penrose and that plaintiff’s car was traveling at a speed of 20 m. p. h. He further testified that he applied his brakes hard at this point and stopped his vehicle in approximately ten feet but that plaintiff continued west and struck his vehicle while it was stopped. Defendant said he was driving north on Grand Avenue in the lane next to the curb lane. He was familiar with the intersection of Grand and Penrose and knew that Penrose was a narrow street and that it was only wide enough for four cars. He knew where the .stop sign was for westbound traffic on Penrose east of Grand. He knew that he was going to make a right turn off of Grand onto Penrose. In his cross-examination he said that he was around seventy feet away from the intersection when he slowed his car at which time he turned on his right turn signal. He said it was at this time that he began to slow his car down to 10 m. p. h. He said that he began turning into Penrose when he had decelerated his car to 10 m. p. h. Thereafter, he gave the following testimony:

“Q. When you were able to decelerate the car to a speed of ten miles an hour where was your car with relation to the south curb of Penrose?
“A. Where was my car? I would say my car was out about, say, the front of it I would say approximately twelve or thirteen feet from the curb — to the right. The front of my car.
“Q. The front of your car was about twelve or thirteen feet from the south curb of Penrose ?
“A. When I come in yes sir.”

When the defendant was asked what was the shortest distance in which he could stop his station wagon at a speed of 10 m. p. h., after taking into consideration that it required an emergency stop, reaction time and that there was gravel on the street at the time, he said that he could have stopped his car in eight or nine feet “something like that, if you apply your brakes hard.” He said his brakes and steering mechanism were in good condition. He said a part of his car was at the center of Penrose when the two cars collided and that he had not completed his turn into Penrose.

Defendant contends that plaintiff did not make a submissible case under the humanitarian doctrine and therefore the trial court should have directed a verdict for him. Only submissibility is involved in this point raised by defendant. Plaintiff’s humanitarian instruction No. 3 submitted defendant’s failure to stop the station wagon and to slow it down. Defendant was not entitled to a directed verdict if plaintiff had made a submissible case of either defendant’s ability to stop or to slow his car after plaintiff entered a zone of imminent peril (now referred to in MAI as a position of immediate danger). It was not necessary for the trial court to find substantial evidence of defendant’s ability to slow down his car if there was substantial evidence of his ability to avoid the collision and injury to plaintiff by stopping the station wagon. Carlson v. St. Louis Public Service Company, Mo., 358 S.W.2d 795, 799. We think the evidence was sufficient to support a finding by the jury that defendant could have stopped his station wagon in time to have avoided the collision after plaintiff entered a zone of imminent peril.

The error in defendant’s contention is that he assumes that plaintiff was not in imminent peril until he reached Penrose Avenue when for the first time he could see and know that plaintiff was on or over the centerline (unmarked) of Pen-rose, and, therefore, in a position of imminent peril. He says no matter what his speed was at that point it would have been impossible for him to stop and avoid the collision. There are several basic errors in this assumption. One error that threads its way through defendant’s brief is that he fails to give plaintiff the benefit of the evidence in her case favorable to her and fails to give her the benefit of his evidence favorable to her and not contradicted by her own testimony. She testified that her car was stopped north of the center of Penrose when her car was struck by defendant’s car. She was entitled to the benefit of defendant’s testimony as to his speed when he reached Penrose, which was 10 m. p. h., and his testimony that he could stop in eight or nine feet at that speed. Plaintiff gave no testimony as to defendant’s speed and the only testimony in her case in this connection was given by her fourteen year old son who testified that defendant’s car was going seventeen to eighteen miles per hour at the time of the collision. As we have pointed out she was not bound by the testimony of this witness as to his estimate of the speed of defendant’s automobile. Another error in defendant’s assumption is that he unduly and improperly restricts the plaintiff’s zone of imminent peril as we shall demonstrate later. However, using defendant’s assumption that plaintiff was not in a zone of imminent peril until he reached Penrose Avenue we think that thereafter defendant could have stopped his car in time to have avoided the collision.

When defendant reached Penrose plaintiff’s car was stopped approximately eleven feet east of Grand. Using defendant’s own testimony that plaintiff was one foot south of the center of Penrose she would then be fourteen feet north of the south curb of Penrose. Assuming that defendant reached Penrose at the immediate southeast curb, which, of course he did not, he would have to travel the hypotenuse of a right triangle, fourteen feet on one side and eleven feet on the other, a distance of almost eighteen feet before coming into contact with plaintiff’s car. He was traveling no more than 10 m. p. h. when he reached Penrose, according to his own testimony. He said he could stop in eight or nine feet at this speed. This demonstrates that he could have stopped and avoided the collision under his own unduly limited zone of imminent peril.

However, we think the evidence shows that at the time defendant started to make his turn into Penrose, at which time he had reduced his speed to 10 m. p. h. and was twelve or thirteen feet south of the south curb of Penrose, plaintiff was in a position of peril. At this time and place defendant could have seen plaintiff’s car. Her position of imminent peril was created by defendant when he turned out of the line of travel he had been traveling on Grand to a new line of travel, which, if pursued by him without stopping, would take him over the place where plaintiff’s car was stopped. He could or should have observed this at the time he started to make his turn into Penrose. Defendant knew the projected path his car would travel. He could have seen that plaintiff would be in this path. This is true whether plaintiff was one foot south of the center of Penrose or completely on her own north side. It was defendant’s act in turning his car that exposed plaintiff to the peril from which she could not escape. While plaintiff was sitting in her stopped car defendant traveled at least thirty feet after turning his car. The evidence shows that defendant could have stopped his car and avoided the collision after he started to make his turn. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761; Allen v. Kessler, Mo., 64 S.W.2d 630; Cross v. Wears, Mo.App., 67 S.W.2d 517; Majors v. White, Mo.App., 247 S.W. 233.

In the case of Smith v. Fine, supra, the court said (175 S.W.2d 1. c. 764):

“ * * * The fact that an automobile operator intentionally proceeds on a curve known to himself should not on this issue [duty to stop] distinguish the case from one where an automobile operator proceeds along a straight path known to himself and observable to others. * * * ”

Again at 1. c. 764 the court said:

“ * * * The thought, however, persists that the new path of an automobile is its path for the purposes of the humanitarian doctrine when its operator freely and knowingly changes its apparent path.”

In the case of Cross v. Wears, supra, where the facts were similar in many respects to those of the instant case, the court said (67 S.W.2d 1. c. 518):

“It cannot be doubted that plaintiff was in peril at some time. While she was sitting in a standing automobile the truck traveled a distance of 40 feet. * * * The collision was inevitable because the driver of the truck chose for its path that part. of the highway upon which the automobile was standing. In the circumstances the collision itself demonstrates that plaintiff was in peril the instant the truck was turned toward the automobile in which she was sitting. Majors v. White (Mo.App.) 247 S.W. loc. cit. 234,”

We think a submissible case was made for the jury in the instant case.

Plaintiff contends that the trial court erred in sustaining defendant’s motion for new trial because of the alleged errors in plaintiff’s instruction No. 3. She contends that the instruction was not erroneous in the respects and upon the grounds specified by the trial court because there was sufficient evidence to support said instruction. The trial court sustained defendant’s motion for a new trial on two grounds. (1) Because the evidence did not support the giving of instruction No. 3 on humanitarian negligence and (2) because said instruction permitted the jury to find that defendant could have avoided the collision by “stopping” his car and “slowing it down” when there was no evidence to support a finding that the collision could have been avoided by defendant “slowing” his automobile.

Plaintiff’s instruction No. 3 required the jury to find after plaintiff “became and was in a position of imminent peril” that defendant could have prevented the said collision “by stopping the Station Wagon and slowing it down * * As will be noted the grounds of humanitarian negligence were submitted in the conjunctive. We said in the case of Hodgins v. Jones, Mo.App., 64 S.W.2d 309, 1. c. 312 that:

“ * * * It appears to be well settled in this state that, when the grounds of negligence on which an instruction directs a recovery are stated in the conjunctive, and one of the grounds is alone sufficient to warrant a recovery, the instruction is not erroneous merely because one of the grounds is without evidence to support it. * * * ”

Further support for this holding can be found in the following cases: Miles v. Gaddy, Mo., 357 S.W.2d 897; Lindquist v. Kansas City Public Service Co., 350 Mo. 905, 169 S.W.2d 366; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384, 386. However, this holding does not apply where one of the several grounds of negligence, conjunctively submitted, is an improper statement of the law and a positive misdirection. Miles v. Gaddy, supra. We do not believe there was sufficient evidence to support a finding that the collision could have been avoided by defendant “slowing” his automobile. However, as heretofore found, there was sufficient evidence to support a finding by the jury that the defendant could have avoided the collision by stopping his car. Inasmuch as the humanitarian negligence was submitted in the conjunctive the instruction was not erroneous merely because there was insufficient evidence to support a finding that the collision could have been avoided by defendant “slowing” his automobile. Nor do we find this submission of humanitarian negligence an improper statement of the law or a positive misdirection of the law.

Defendant now makes the additional complaint that instruction No. 3 is erroneous because it omits the essential finding of where plaintiff was stopped in order to be in a position of imminent peril. The answer to this is what we said heretofore, that it made no difference whether plaintiff was stopped north or south of the center of Penrose. In either position she came into a position of imminent peril when defendant started to make his turn. Plaintiff’s instruction No. 3 was in the conventional form and was sufficient and free of prejudicial error.

Defendant next contends that plaintiff’s instruction No. 9 on damages is erroneous because (1) she was not the real party in interest as to the automobile, and (2) there was no evidence as to loss of earnings. In answer to the contention that plaintiff was not the real party in interest as to the automobile, we need only state that we think the evidence satisfactorily shows that she owned the automobile at the time of the collision. However, defendant further contends in this connection that her claim for property damage was actually a subrogation claim. He bases this on evidence given by plaintiff that she had been reimbursed for all of her damage, except $50 “deductible.” While this might indicate that she had been reimbursed by an insurance company for all of her damage except $50, this does not preclude her from bringing the action to recover the entire damages. In the case of Hayes v. Jenkins, Mo.App., 337 S.W.2d 259, 262, the court held that payment of property damage by an insurer does not preclude an insured from recovering the entire amount of damage unless the plaintiff has executed an assignment of her cause of action. Steele v. Goosen, Mo., 329 S.W.2d 703. There is no evidence to show that plaintiff had assigned her cause of action.

We think defendant’s final complaint, that plaintiff’s instruction on damages was erroneous because it allowed a recovery for plaintiff’s impairment of ability to work and earn a living, is without merit. It should be pointed out that the instruction did not direct the jury to allow or to assess damages for impairment of ability to work and earn a living but merely told the jury that in determining such damages it may take into consideration such impairment. See Moss v. Mindlin’s, Incorporated, Mo., 301 S.W.2d 761, 768, 769; and Hieber v. Thompson, Mo.App., 252 S.W.2d 116, 125. The evidence showed that prior to the accident plaintiff was in good health and two years prior Rad worked at Sears Roebuck Company as a seamstress in the tailoring department for men’s clothing for a period of thirty years. In such work she had done hand sewing and operated a sewing machine. In the period prior to her accident when she was not working she was taking care of her daughter’s babies. This was the reason given by her for not working at the time. She in-dicated she was ready to go back to work, but did not know whether she could do the seamstress work on the sewing machine any more. She said she could not clean her ■own house, could not do her mopping, that she had to sit down frequently and when ■she did sit down it was uncomfortable. She had to do her ironing a little bit at a time. She had not been free of pain at any time since the accident. She said the steering wheel of her automobile struck her •in the abdomen and that her neck was hurt. The morning after the accident she could hardly get up because of her neck. She was treated by a doctor. At the time of the trial she said her back still hurt her and that she had difficulty lifting her arms in order to comb her hair. She continues to have pain in the neck when she moves her arms and says the pain seems to start up in her head. Her doctor found tenderness on both sides of the back of her neck and said she had difficulty in bending her neck and her head forward or backward ; that the motion was limited to about 50% of full range. He found tenderness to palpation or to pressure over the soft tissues on both sides of the lower portion of her upper back and tenderness over the cartilage portions of the chest, which was that part of the chest next to the abdomen. There was tenderness over the spine and in the soft tissues on both sides of the vertebra. His diagnosis was irritation of the muscles in the back of the neck and on both sides of the lower portion of her back. He found a contusion of the upper part of the abdomen. He prescribed heat treatments, gave her some muscle relaxing drugs, a back support for her to wear and gave her some cervical traction. The conditions he found were painful and said that they disabled her from normal activity in both household duties and gainful employment. It was his opinion that because the pain in plaintiff’s head and neck had persisted for a period of two and one-half years, that this condition would be of a permanent nature. We think the evidence was sufficient to submit for the jury’s consideration plaintiff’s impairment of ability to work and earn a living. The court did not err in giving instruction No. 9 on damages.

Plaintiff made a submissible case under the humanitarian doctrine ;jnd we find that the trial court did not err in giving instruction Nos. 3 and 9 and, therefore, the trial court erred in sustaining defendant’s motion for a new trial. The order and judgment of the trial court sustaining defendant’s motion for a new trial is reversed and the cause is remanded to the trial court with directions to enter judgment in accordance with the verdict of the jury.

WOLFE, P. J., concurs and J. MORGAN DONELSON, Special Judge, dissents in a separate opinion.

J. MORGAN DONELSON, Special Judge

(dissenting).

I respectfully dissent from the opinion of Ruddy, J. I cannot agree that the evidence supports the findings and conclusions therein. Plaintiff failed to make a sub-missible case under humanitarian negligence on either of the two grounds submitted by her.

Plaintiff’s evidence was that she had stopped her car at the intersection of Grand and Penrose. She had been waiting for some minutes during this rush hour period for some heavy traffic to pass on Grand Avenue before she continued across the intersection. She observed defendant’s northbound station wagon. Defendant’s vehicle continued to the intersection where he made a right turn on Penrose and struck her parked car. Plaintiff’s son, Carl, age 14 and a passenger in his mother’s car, testified that Defendant Moss was traveling twenty miles per hour north on Grand Avenue. As Moss turned the corner he had a speed of fifteen to twenty miles per hour. He applied his brakes and struck their car parked at the intersection. Plaintiff gave no other evidence as to the speed of defendant’s vehicle as he turned the corner or how the accident occurred. Defendant Moss stated that he was driving north on Grand at twenty miles per hour, that he reduced his speed to ten miles per hour as he turned right into Penrose, and that he then saw plaintiff’s car thirty feet east on Penrose about one foot over on his side of the avenue. It had a speed of twenty miles per hour. He applied his brakes hard and stopped his vehicle in approximately ten feet, but plaintiff continued west and struck his vehicle while it was stopped. Moss further testified that there was not sufficient room between the parked vehicle on the south side of Penrose and plaintiff’s car for him to safely pass, but plaintiff’s evidence gave him six to twelve inches or from three to six inches on either side of his vehicle to pass and continue eastward.

In a humanitarian case plaintiff must prove every element of her theory of submission by substantial evidence or by reasonable inferences therefrom. It is equally established that a judgment for plaintiff cannot stand if it is based solely upon speculation, conjecture, and surmise, either with respect to the plaintiff’s position of imminent peril, or after notice thereof with respect to defendant’s ability, with the means at hand and with safety to himself and others, to have averted the accident and resulting injury. Vietmeier v. Voss, Mo., 246 S.W.2d 785; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316; Batson v. Ormsbee, Mo.App., 304 S.W.2d 680; Lane v. Wilson, Mo.App., 390 S.W.2d 943.

First, plaintiff contends that defendant could have stopped and averted the accident. Plaintiff’s evidence was that defendant at a speed of fifteen to twenty miles per hour turned the corner at the intersection of Grand and Penrose Avenues and he struck her stopped car. No evidence was introduced by plaintiff to show the distance within which, moving at a speed of fifteen to twenty miles per hour under these circumstances, the station wagon of defendant could have been stopped. Plaintiff offered no other evidence on these issues. Plaintiff’s proof, therefore, does not support her humanitarian submission. She must rely upon defendant’s evidence of speed and stopping distances to make her case, if possible. Defendant testified that he was moving at a speed of ten miles per hour when he turned the corner, that plaintiff was approaching him from the east about one foot over on his side of the avenue at a speed of twenty miles per hour, and that he stopped his vehicle before it was struck by plaintiff. It was further in evidence that with some gravel on the street he did, in fact, stop his vehicle after applying his brakes hard in a distance of ten feet. Plaintiff cannot now disregard her evidence as to speed and recover on the theory that the station wagon was traveling ten miles per hour, and therefore defendant could have stopped short of the collision, Ordinarily the plaintiff is entitled to the benefit of defendant’s favorable evidence, if any; but I am equally aware that defendant’s evidence can benefit plaintiff only if certain qualifications are met. It must not contradict plaintiff’s theory of her case and her own evidence. Not only does defendant’s evidence contradict plaintiff’s evidence on these issues, but also plaintiff’s theory of how the accident occurred is contradicted. She therefore is not entitled to the benefit of defendant’s evidence. Fenneren v. Smith, Mo., 316 S.W.2d 602; Price v. Nicholson, Mo., 340 S.W.2d 1; Appelhans v. Goldman, Mo., 349 S.W.2d 204.

Next, plaintiff contends that defendant could have “slowed” his vehicle and thus avoided the collision and plaintiff’s injury. This theory is not supported by the evidence and cannot be sustained. By her own evidence plaintiff was stopped at the intersection and she was not moving. The “slowing” theory is applicable when both vehicles are moving and plaintiff proves that if defendant had only “slowed or slackened” the speed of his vehicle she could have passed or moved by safely, and there would have been no collision. The majority opinion also agrees that there was not sufficient evidence to support a finding that the collision could have been avoided by defendant “slowing” his automobile, therefore I will not pursue this point further.

Under the evidence neither submission to the jury by plaintiff is supported and the verdict for plaintiff could only be based on speculation, conjecture and surmise; therefore, I would hold that it was proper for the trial court to order a new trial.


author: DOERNER, Commissioner.

text:
    Roby E. WATSON, Plaintiff-Respondent, v. The MEREDITH DEVELOPMENT COMPANY, a Corporation, Defendant-Appellant.
    No. 32418.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.

      Greensfelder, Hemker, Wiese, Gale & Chappelow, Mark R. Gale, St. Louis, for defendant-appellant.
    Louis S. Czech, Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff commenced this action in the Magistrate Court of St. Louis County seeking to recover the sum of $1882.00 alleged to be due for certain construction work performed for defendant. From an adverse judgment defendant appealed to the Circuit Court of the same County. Trial there was to the court, sitting without a jury, and re-suited in a judgment against defendant for $1882.00, from which it appealed.

The total amount sought by plaintiff was composed of two items: First, his claim for a balance of $1345.00 alleged to be due him for his work in erecting three prefabricated houses for defendant in a subdivision named Chambers Hill; and second, his claim for $574.75 for sidewalks, driveways and other concrete work laid on Lots 206 and 198 in another subdivision ■named Glen Owen. As to the first item, plaintiff testified that beginning in March, 1960, he performed carpentry work for defendant on other houses on a unit or contract price. While his entire petition sounded in quantum meruit, plaintiff was permitted to testify, over objection, that upon completion of his initial work Howard Gale, defendant’s president, informed him that his compensation for future work would be at the rate of $5.00 per man hour. Subsequently defendant requested plaintiff to erect the three houses in question, and plaintiff.did so. It is evident that plaintiff’s trial theory was that he and his employees had performed 789 hours of labor on the three houses, which at the agreed rate of $5.00 per hour amounted to $3945.00; that defendant was entitled to a credit of $2600.-00 for payments made; and thus that the ■balance due him was $1345.00.

In an effort to prove the number of hours he and his men had worked plaintiff related that time cards were kept on the job, and that at the end of each week he entered the weekly total onto three time sheets, which he identified, and which he stated were kept in the regular course of his busi~ness. Although plaintiff testified that he still retained the original time cards in his ■office they were not produced, and no tes-timony was offered as to the manner in which they had been prepared, or the regularity and accuracy of their preparation. With that meager foundation, plaintiff offered the time sheets in evidence but the court sustained defendant’s objection that no proper foundation had been laid for their admission, and they were excluded. In his brief plaintiff makes no claim that the time sheets were admissible under the Uniform Business Records as Evidence Act, § 490.660 et seq., RSMo 1959, V.A.M. S., nor does he contend that the court erred in excluding them. In fact, he has not even lodged such time sheets in this court with his other exhibits.

Having failed in his attempt to have the time sheets admitted into evidence his counsel then inquired of plaintiff whether he was able to state the number of hours he and his employees had labored on the three houses. The record shows that before plaintiff answered defendant’s attorney interposed the objection that the plaintiff was referring to the time sheets preparatory to answering the question, that plaintiff was getting into evidence the evidence not otherwise admissible, and that he objected to any testimony based upon the exhibits which had been excluded. To meet the objection counsel for plaintiff then asserted that, “If the Court please, it’s a matter of refreshing his recollection with records he himself has produced and made,” and the court thereupon overruled defendant’s objection. Without obtaining an answer to his prior question, plaintiff’s counsel propounded another: “Would you refer to the records that you have made relative to the hours that you and your men have put in on Lots 38, 39, and 40?” and plaintiff replied: “On Lot 38, 345 hours; on Lot 39, 229 hours; on Lot 40, 215 hours.” Subsequently, after defendant renewed its objection to plaintiff reading from the excluded time sheets, and was overruled, plaintiff gave the total hours worked as 789. He also testified that a charge of $5.00 per man hour was a reasonable charge for carpentry work, but no testimony was offered that 789 hours was a reasonable number of hours for the work performed.

Assuming, without deciding, that plaintiff’s evidence was sufficient to sustain an action based on quantum meruit as to this item, it is apparent from the record that plaintiff’s foregoing testimony was the only evidence introduced regarding the number of hours he and his men had worked on the three houses. Defendant asserts that the court erred in admitting and receiving such testimony, that we must therefore disregard it in our review de novo, and that without it there is not sufficient competent evidence in the record to sustain the judgment.

The record is clear that the court permitted plaintiff to read from the time sheets on his counsel’s representation that plaintiff was entitled to thereby refresh his recollection. It is, of course, a settled rule that a witness who does not recall or is uncertain about matters concerning which he is called upon to testify may, under certain circumstances and conditions, be permitted to refresh his memory by referring to a memorandum or writing. State v. Bradley, 361 Mo. 267, 234 S.W.2d 556; Voyles v. Columbia Terminals Co., Mo.App., 223 S.W.2d 870. Generally speaking, the question of whether a witness may be allowed to refresh his recollection is a matter reposing in the sound discretion of the trial court, reviewable only for abuse. Winn v. Modern Woodmen of America, 157 Mo.App. 1, 137 S.W. 292; O’Connor v. Egan, Mo.App., 274 S.W.2d 334. However, as we pointed out in Voyles v. Columbia Terminals Co., supra, a sound discretion would ordinarily dictate that a witness should not be asked to refresh his recollection unless it is first established that he has no present recollection and that he needs the aid of a memorandum in order to recall the facts to his mind or otherwise establish them.

In general, the situation in which a memorandum may be used by a witness to refresh his memory falls into two categories: (1) where the use of the memorandum revives the present recollection of the witness so that he is then able to testify independently of the memorandum; and. (2), where the witness has no present recollection after referring to the memorandum but testifies that he once knew the facts, and that they were accurately and correctly recorded in the memorandum he identifies. 125 A.L.R. 19; 58 Am.Jur., Witnesses, § 579; 98 C.J.S. Witnesses § 357;. Wigmore on Evidence, 3rd Ed., Vol. Ill, §§ 734, 758. The first example is frequently referred to as the rule of “present recollection revived” and the second as that of “past recollection recorded,” Wigmore, supra; State v. Bradley, 361 Mo. 267, 234 S.W.2d 556; United States v. Riccardi, 3 Cir., 174 F.2d 883. Under the latter rule-the question of the veracity and trustworthiness of the memorandum is affected, by the timeliness of when it was made. State v. Bradley, supra; Wigmore, supra, § 745; 125 A.L.R. 121.

In the instant case no foundation, was laid for plaintiff’s use of the time sheets-as a means of refreshing his recollection,, in that it was not shown that he needed the aid of such records to recall the number of hours he and his men had worked. And, after he had referred to the time sheets, it is apparent that his memory of the facts, was not so stimulated that he was then able-to testify independently of their use. The record shows, on the contrary, that he was. asked to read therefrom and that he did so. Hence plaintiff’s use of the time sheets did not fall within the rule of present recollection revived. Nor did such use fall within the rule of past recollection recorded, for a number of reasons. The time-sheets were not made by plaintiff, or any one else, as a record of events at or about, the time they occurred. Rather, as his testimony showed, the information they contained was subsequently compiled from the original entries, the time cards. Furthermore, there was no showing as to the trustworthiness of the time cards, nor even any testimony that plaintiff had accurately transcribed the data they contained to the time sheets. Thus, there was a total lack of verification of such time sheets. Wolf v. Mallinckrodt Chemical Works, 336 Mo. 746, 81 S.W.2d 323; Gordon & Koppel Clothing Co. v. New York Cent. R. Co., Mo.App., 285 S.W. 755; Security Printing Co. v. Liverpool & London & Globe Ins. Co., Mo.App., 263 S.W. 454. It is obvious that under the guise of refreshing plaintiff’s recollection he was erroneously permitted to read from the time sheets which previously had been excluded. Defendant’s objection to that procedure should have been sustained. Wolf v. Mallinckrodt Chemical Works, supra.

Regarding the second item of his claim, plaintiff testified as to his employment, the number of feet of concrete laid for driveways, sidewalks and other work on each lot, the price per foot thereof, that such prices were fair and reasonable, that demand had been made on defendant for the amount claimed, and that defendant had failed to pay. If admissible such evidence satisfied the essential requisites of plaintiff’s action as to that item. Leggett v. Mutual Commerce Cas. Co., Mo., 250 S.W.2d 995; Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974. We note, however, that the record indicates that plaintiff also read from some undisclosed record in connection with this part of his claim, and that defendant’s objection in that regard was likewise overruled. What we have heretofore said regarding the propriety of permitting a witness to read from a record under the cloak of refreshing his recollection is equally applicable here.

For the reasons stated we must and do hold that there is not sufficient competent evidence in the record to sustain the judgment. However, because it appears that plaintiff may develop the facts in a proper manner he should have an opportunity to do so. Billings v. Paine, Mo., 319 S.W.2d 653; In re Patterson’s Estate, Mo., 348 S.W.2d 6. Therefore, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is reversed and the cause remanded.

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

      . These two amounts total more than the $1882.00 claimed, but on cross-examination plaintiff acknowledged that an overall credit of $137.25 was due defendant for an overpayment on another job.