author: BATEMAN, Justice.

text:
    Milo V. CADENA, Appellant, v. Edward T. DICKER, Appellee.
    No. 16409.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 25, 1964.

      Arturo C. Gonzalez, Del Rio, for appellant.
    Hyde, Tucker, Gano & Easterling, Dallas, for appellee.
   BATEMAN, Justice.

The appellee Edward T. Dicker obtained á judgment against the appellant Milo v. Cadena for the balance claimed to be owing on a promissory note signed by appellant and payable to appellee. Appellant had filed a plea of privilege but on October 10, 1963 his attorney telegraphed appellee’s attorney agreeing that the plea of privilege be overruled. This was done on October 11, 1963, and at the same time, no answer having been filed, a nihil dicit judgment was rendered. On November 7, 1963 appellant filed a motion for new trial, which was heard on December 13, 1963, and, no ruling having been made thereon by the court, it was overruled by operation of law on December 22, 1963. ■

The first point of error raises the question of the sufficiency of the motion for new trial to entitle appellant to have the judgment set aside. The rule by which we must be governed in answering this question is thus announced in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.”

At the hearing of his motion for new trial appellant’s attorney testified that on September 16, 1963, while a patient in the hospital, he dictated an answer to his secretary and instructed her mail it to the clerk for filing; that on or about September 16 or 17, 1963 he learned that the hearing on his plea of privilege had been postponed from its setting on September 19, 1963 to October 10, 1963; that he “wired” appellee’s attorney to prepare an order overruling the plea of privilege; that he did not discover until October 29, 1963 that his secretary-had not sent the answer he had dictated, consisting of a general denial, as he had instructed her to do; that he intended to file an answer and did not intend that a default judgment he rendered against his client; that the failure to file an answer was not due to conscious indifference on the part of himself or his client but was due to a mistake and misunderstanding. All of this testimony followed substantially the allegations in the motion for new trial and was not disputed. In the secretary’s affidavit, attached to the motion, she excused her failure to mail the answer to the clerk for filing on the ground that she was under the impression that the answer would not have to be filed until after the overruling of the plea of privilege.

While appellant’s showing in this respect was not as strong as might be desired, we think under the law it constituted a sufficient excuse for not timely filing the answer, especially in view of appellant’s expression of willingness, contained in the motion, for the case to be set for trial on its merits “at the earliest possible convenience of Plaintiff’s counsel” and the court, and his agreement to “pay all costs heretofore incurred and hereafter to be incurred in the trial of this cause.”' Only a slight excuse seems to be required under these circumstances. Craddock v. Sunshine Bus Lines, supra; Dowell v. Winters, 20 Tex. 793.

We turn now to the question of whether appellant in his motion sets up a meritorious defense when he alleges that the contract out of which the promissory note sued on arose was rescinded and terminated by appellee, resulting in the ex-tinguishment of the note and appellant’s liability thereon. Attached to the motion for new trial was a certified copy of a contract dated January 2, 1962, providing for the sale by appellee to appellant of a certain motel in Del Rio, Texas, and the furniture, furnishings, fixtures and equipment thereof. The recited consideration for the property included the assumption by appellant of an unpaid balance of $46,014.87 owing on a note executed by appellee payable to H. T. Merrill and Dr. O. W. Wilson and their wives, and the execution by appellant' of a promissory note for $77,194.03 payable to appellee (which is the note sued on).

Other pertinent provisions of the contract were that appellant should at once begin occupying and operating the motel, keeping it in repair and properly insured; that “if the buyer shall default in any of the terms, conditions, or obligations of this Agreement, and such default shall not have been remedied within twenty (20) days after, written notice by Seller to Buyer, this Agreement shall terminate ipso facto upon the happening of any such contingency and Buyer shall quit and give up possession of the Premises”; that in event of default of Buyer, or termination of the agreement-, “buyer shall have no right, title or claim to any sum or sums theretofore paid by him, whether in cpnsideration of, or- in pursuant to (sic), the terms of this Agreement”!; and that upon compliance with all the terms of the agreement and the payment ¡ in: full of the $77,194.03 note seller will. coiivey ;the premises to buyer by general- wariapty; deed and also deliver to him a bill of sale to. the personal property. ■ : ■ ,. |

It was further alleged iii file motion, -aiid, supported by affidavits of appellant’s counsel and his secretary, that although appellee had agreed to defer the maturity of e'ertkin installments due on the note in questi'dif/'he refused to accept payments iindér 'such extension and demanded that appellant vacate the motel and deliver it arid its fúrhishítígs and $2,500 in the bank in 'its name to Merrill-Wilson Investment Company; -that appellant complied with these' demands On June 21, 1963 by executing a quit claim'deed conveying the real property to that company and delivering to it possession' of the motel, the personal property and the $2,500 in the bánk; that on the same date appellee" conveyed the real property to-the same-company by warranty deed, part of the recited consideration being the cancellation and surrender of appellee’s note which he had given H. T. Merrill and Dr. O. W. Wilson as part of the consideration for his purchase of the property from them in 1959, and upon which there was then due approximately $42,000.

We are of the opinion that this motion for new trial satisfied the requirements set forth in Craddock v. Sunshine Bus Lines, supra, and sustain appellant’s first point of error. Appellant’s contention that these transactions had the effect of restoring him to his status quo and of extinguishing his liability for the unpaid balance of the- note sued on herein finds support in American Trust & Savings Bank v. Cotton F. & T. Corp., Tex.Civ.App., 10 S.W.2d 186, no wr. hist., wherein a vendor of land placed the deed in escrow, to be delivered to the buyer on payment of the purchase-money note. This note was also secured by a mortgage on growing crops. The vendor withdrew the deed from escrow, resumed possession of the land and sold it to another. It was held that, having rescinded the sale and rendered himself' powerless to convey the land to the buyer, he had no right of action on the note and, a priori, could not recover damages against one who had converted the growing crops covered by his mortgage. See also 13 Tex.Jur.2d, Contracts, pp. 607, 615, 616, §§ 337, 342, and 50 Tex.Jur.2d, Sales, p. 667, § 286.

In holding, as we do, that the motion for new trial alleged a meritorious defense, we are not to be understood as holding that the facts so alleged established for appellant an impregnable defense as a matter of law, automatically entitling him to a favorable judgment. It is our view and holding that the allegations do raise a fact issue as to whether it was the intention of the parties that they be mutually released from all obligations arising from the original transaction, including the note signed by appellant. Appellant should have the right to establish, if he can, the affirmative of that issue by competent proof. See 13 Tex.Jur.2d, Contracts, p. 617, § 343, where it is said:

“ ‘Voluntary’ or mutual rescission of a contract does not, as a matter of law or by necessity, have the effect of discharging the parties from liabilities that they have previously incurred under the agreement. On the contrary, the question of liability in such a case is determined by reference to the agreement to rescind. In construing that agreement, the court will look not only into the nature of the contract rescinded and the intent and situation of the parties at the time, but also into all attending facts and circumstances of the case. If the language of the agreement to rescind indicates that the parties are to be discharged from all prior liability, or if there is nothing in the agreement to indicate a different intention, both parties will be fully discharged of all prior liability. The converse of this obtains, however, where it appears that the. agreement to rescind was not intended to have such an effect.”

See also the following cases cited in support of that text: Alabama Oil & Pipe Line Co. v. Sun Co., 99 Tex. 606, 92 S.W. 253; Garrett v. Danner, Tex.Civ.App., 146 S.W. 678, no wr. hist.; and Bering Mfg. Co. v. W. T. Carter & Bro., Tex.Civ.App., 255 S.W. 243, 252, affirmed Tex.Com.App., 272 S.W. 1105.

Appellee contends that, since the answer which appellant’s attorney dictated and intended to file consisted only of a general denial, appellee was entitled to judgment nevertheless because the answer was insufficient to assert a defense to a suit on a promissory note, citing Rule 94, Vernon’s Texas Rules of Civil Procedure. But this is an appeal from a default judgment, which the formal answer would have prevented. Pat H. Stanford, Inc. v. Franklin, Tex. Civ. App., 312 S.W.2d 703, no wr. hist. Appellant would have had the right to amend his answer prior to or during trial. Rules 63 and 66, T.R.C.P. Being unwilling to assume that appellant would not have re•quested leave to amend or that such request, if made, would have been denied, we overrule this contention.

Our disposition of appellant’s first point of error makes unnecessary a discussion of his second and third points. They have been carefully considered, found to be without merit, and are overruled.

The judgment is reversed and the cause remanded for trial on its merits. All costs incurred to this date in both the district court and this court are taxed against appellant.

Reversed and remanded.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    COMMERCIAL STANDARD INSURANCE CO., Appellant, v. Keneth BIRCHFIEL, d/b/a Birchfiel Steel Erection, Appellee.
    No. 7401.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 12, 1964.
    Culton, Morgan, Britain & White, Amarillo, for appellant.
    Robinson & Fotheringham, Amarillo, for appellee.
   CHAPMAN, Justice.

The subject matter of this suit constitutes an action tried to the court upon an insurance policy issued by Commercial Standard Insurance Company insuring steel erection equipment belonging to Kenneth Birchfiel d/b/a Birchfiel Steel Erection against direct loss or damage resulting from any external cause. Judgment was rendered by the court below for appellee Birchfiel. Appeal is perfected to us upon three points, the first of which is that appellee failed to raise an issue of loss under the terms of the policy.

The policy provides for coverage against direct loss or damage resulting from any external cause except thirteen exclusions included therein. Among those exclusions is No. 7 providing:

“Wear, tear and gradual deterioration; breakage and/or rust, unless the same he the direct result of fire, lightning, explosion, cyclone, tornado, wind-stormflood, earthquake, collision, derailment or overturn of conveyance, malicious damage or aircraft damage;” (Emphasis added).

Appellee contends, he made proof of damage under the windstorm exception to exclusion No. 7. There are only eleven pages in the Statement of Facts and we have read it carefully to try to find where appellee established his cause of action. We believe he wholly failed to do so.

He proved the policy was in force on March 12, 1963, and that a broken boom on a crane was called to the attention of the insurance company through its agent. The only other evidence as to what happened on the named date was given by appellee himself, and he was not in Lubbock where the crane was located on that date. He testified when he 'returned to Lubbock [and he did not even sáy what day that was] that the crane was bent and lying on the ground where the work was being done. He also testified he checked with the weather bureau to find what the weather was on March 12; that the insurance agent called for that information.

The records of the weather bureau introduced into evidence show the wind on March 12, 1963, ran gusts from 29 to 35 m. p. h., the 35 mile gusts being at 4:00 p. m.

There is not anything whatever in the record to show when the crane boom was injured, whether morning or night, or how it was injured. There is not any testimony whatever showing the wind had anything to do with the injury, other than the weather bureau records introduced.

Mr. Birchfiel was asked, “What happened on March 12, 1963?" An objection was urged and sustained because he was not in Lubbock on that date. He was then asked what he found when he got there and he replied: “Practically what they had told me.” What (they) had told him was never proved.

It is academic, and requires no citation of authority, for us to say that one seeking to recover damage under the terms of the subject insurance policy must prove direct loss from an external cause because those are conditions precedent to recover under the terms of the policy. This, appellant wholly failed to do. We have studied the record carefully and we find no evidence whatever by which we can conclude how the boom was injured or at what day or hour.

It is urged by appellant that we must render judgment rather than reverse the case, there being no evidence to show the right to recover under the terms of the policy. The contention is without merit.

Chief Justice Calvert of our Supreme Court has textually stated that:

“ * * * once a ‘no evidence’ point is sustained, a Court of Civil Appeals has broad powers, and should exercise them, to remand for retrial rather than render judgment when the evidence has not been fully developed and it appears that a retrial will better serve the interests of justice.” “No Evidence” and “Insufficient Evidence” Points of Error. Sec. 1, Action By Court, pp. 369, Vol. 4, 1960 Texas Law Review.

The evidence clearly was not fully developed and it appears to us that a retrial will better serve the interests of justice. Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265; Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593; Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458; Amarillo Coca-Cola Bottling Co. v. Price, Tex.Civ.App., 378 S.W.2d 409 (N.W.H.).

Accordingly, the judgment of the trial court is reversed and remanded for a new trial.


author: WILLIAMS, Justice.

text:
    Chester HILL, Appellant, v. BUDGET FINANCE & THRIFT COMPANY et al., Appellees.
    No. 16411.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 9, 1964.

      Edward C. Fritz, Fritz & Vinson, Dallas, for appellant.
    Sessions, Sessions, Ackels & Looney,. Dallas, for appellees.
   WILLIAMS, Justice.

Alleging that he had been charged usurious rates of interest and had suffered damages by reason of having been harassed by unreasonable collection efforts, Chester Hill sued four groups of finance companies and their individual owners, such defendants being: (1) Safeway Finance Company and S. M. Connell; (2) Budget Finance &. Thrift Company, et al, and Jack Killian, et al; (3) Reserve Loan Service and Paul Luther, et al; and (4) Community Finance & Thrift Corporation, et al. Plaintiff sought double usurious interest damages-separately from each group of defendants, actual damages resulting from harassment by all four groups of defendants, and exemplary damages resulting from malice separately from each group of defendants. Prior to trial Hill settled with defendants Jack Killian and Tommy Jones (being a part of the second group of defendants named above) for $1,000, of which $600’ was designated in the release as settlement of the usury and exemplary damages, and $400 was for actual damages. Plaintiff also-settled with Community Finance & Thrift Corporation, et al (the fourth group of defendants named above) for $1,000, of which $900 was allocated in the release as usury and exemplary damages, and $100 for actual damages. Plaintiff then settled with the third group of defendants (Reserve Loan Service, et al), the written release reciting $1,205.55 being apportioned for usury and exemplary damages and $382.05 apportioned for actual damages.

Following these settlements trial was had before a court and a jury. Budget Finance & Thrift Company, and other non-settling defendants in Group 2 above, made default. The Safeway Finance-Connell group of defendants appeared and contested the issues. The jury found double usurious interest damages in the sum of $640 against Safeway Finance-Connell and $1,229.20 against Budget Finance & Thrift Company, et al, and judgment against these defendants for these amounts of damages is not contested on appeal. The jury found no malice and therefore the issue of exemplary damages passed out of the case. The jury awarded the sum of $2,000 to the plaintiff as actual damages “proximately caused by unreasonable collection efforts of all the defendants originally sued in this case.” After the jury was discharged, the court, by agreement, proceeded to determine the issue relating to the proper credit to be allowed the non-settling defendants against the $2,000 verdict for actual damages caused jointly by all the original defendants. After hearing testimony the court allowed credits of $400 (actual damage apportionment in the Killian settlement), $100 (being actual damage apportionment in the Community settlement), and $810 (being found by the court to be the total settlement with Reserve Loan Service, et al), totaling $1,310 against the $2,000 judgment for actual damages, leaving a balance of $690 actual damages which the court awarded jointly and severally against the non-settling defendants. Plaintiff, only, appeals from this judgment.

Appellant makes no complaint here concerning the judgment of the trial court in his favor except that part of the judgment wherein the trial judge deducted the sum of $810, involved in the Reserve Loan settlement, from the actual damage verdict of $2,000. Appellant contends, in his first three points of error, that appellees Safeway-Connell were not entitled to be credited with the entire sum of $810 inasmuch as this amount represented settlement with Reserve Loan not only for actual damages, but also for usury and exemplary damages, which damages are not joint, but several, and for which the non-settling defendants were not entitled to credit. Appellant contends that the proper credit which the court should have granted was the sum of $382.05, being the amount allocated in the .Reserve Loan settlement release which was introduced in evidence. Thus appellant contends that the proper judgment for actual damages should have been $1,117.95 rather than the amount of $690 awarded by the court.

The rule establishing the right of credit by a joint tort-feasor is aptly stated in 104 A.L.R. 932, as follows:

“ * * * joint tort-feasors, when sued for damages by reason of some alleged injury or wrong, have generally been held entitled to show, for the purpose of mitigating or reducing damages, that the same injury or wrong was partially compensated by a payment made by another joint tort-feasor, by presenting evidence of such a payment, and such evidence has been held proper to be considered in fixing the amount of the damages; * *

It is, of course, definitely established that such credit to be claimed by a joint tort-feasor is confined to those damages for which all tort-feasors are equally liable. Where a plaintiff sues several defendants, alleging different kinds and types of damages, some being common to all defendants and others not, the plaintiff must only give credit to a non-settling defendant for that part of the damages which he receives from settling defendants that are applicable to all equally. This situation is frequently found in the type of case with which we are now confronted wherein the plaintiff sues one or more defendants for usurious interest, exemplary damages, and actual damages. It is only as to actual damages, common to all defendants, that the question of proper credit is presented. - The matter was settled by our Supreme Court in Riley v. Industrial Finance Service Co., IS7 Tex. 306, 302 S.W.2d 652 where the court said:

“There being but one injury for which plaintiffs can receive but one satisfaction, defendants are entitled to have credited on the judgment against them all sums paid by others also liable to plaintiffs for the damages resulting from the common acts of all tort-feasors.”
* * * * * *
“The liability of these defendants for the usury charged by them was their own liability for which none of the other tort-feasors can be held liable. The cause of action for usury is sever-able from the cause of action for other damages and the judgment of the trial court should be affirmed.”

In Western Guaranty Loan Company et al. v. Robert B. Dean, Tex.Civ.App., 309 S.W.2d 857, err. ref. n. r. e., we said:

“Furthermore, whatever sums other defendants may have paid in settlement of Dean’s claims for usury and double usury penalties and for exemplary damages are not to be credited against whatever judgment Dean may recover for the entire indivisible actual damages suffered by reason of the combined excessive collection efforts of defendants. For each defendant loan company is answerable alone and separately for usurious interest received and for the penalty of double usurious interest and for such exemplary damages, if any, as may be found by the jury.”

Applying these settled rules, ap-pellees were entitled to be credited only with that portion of the Reserve Loan settlement which had to do with actual damages. The burden of proof was undoubtedly upon appellees Safeway-Connell to establish the proper amount of credit to be applied to the actual damage verdict, thus reducing their liability. Appellees Safeway-Connell affirmatively pleaded that should judgment be rendered against them they should have credit for amounts paid by the joint tort-feasors in settlement of their claims. Having pleaded for the relief, and the burden being upon them, we now consider the evidence to determine whether Safeway-Connell satisfied the burden of proof and whether the trial judge was justified in crediting the entire amount of the Reserve settlement to the actual damage verdict.

Attorney Edward C. Fritz, representing appellant, was called as a witness at the hearing on the issue of credit, being called by Attorney W. R. Sessions, representing appellees Safeway-Connell. Concerning the Reserve Loan settlement Mr. Fritz testified that in making this agreement he dealt with Attorney Sessions (also representing Reserve Loan Service, et al), and that such settlement was one of a number of settlements with the same company for various claims for usury, exemplary damages, and actual damages asserted by Chester Hill. After much negotiation the attorneys agreed to settle all of the cases on the basis of $810 each. Fritz testified that Sessions agreed with him that the money could be allocated between actual damages and exemplary damages in any manner acceptable to Fritz. Fritz related that Mr. Sessions requested releases be prepared in all the cases and presented to him and that such releases should be full and complete and providing for a dismissal of all pending litigation. Fritz testified that he prepared a release in the instant case (being Defendants’ Exhibit No. 3 and releasing Reserve Loan, et al) and that such release recited, inter alia, that the sum of $382.05 was for actual damages. This release was sent to Attorney Sessions and retained by him without protest being voiced as to the contents thereof.

Attorney Sessions testified that he had agreed to settle a large number of cases involving Chester Hill and the Reserve Loan group, for $810 each. Sessions testified that it was his intention that the $810 paid to Hill was in settlement of all the claims that Hill was asserting against his clients in the lawsuit.

Exhibit 3, being the written settlement between Hill and the Reserve Loan group, and reciting the allocation of $382.05, was introduced in evidence by Attorney Sessions, though he denied any agreement with Fritz relating to allocation of damages.

The court, in its findings of fact and conclusions of law, found that the Reserve Loan settlement for $810 was without apportionment between actual, usury and exemplary damages and that defendants remaining at the time of judgment were entitled to credit for the entire $810 of this particular settlement as against the $2,000 actual damage finding on the part of the jury.

We have carefully examined all of the testimony offered before the court and have concluded that appellees Safeway-Connell failed in their burden, of proof to establish the proper credit for such damages. We think that it was definitely en-cumbent upon Safeway-Connell to establish what part of the $810 settlement with Reserve Loan was intended to release the actual damage phase of the claim made by Hill. Safeway-Connell did nothing more than prove that it paid $810 for the entire case, it being undisputed that such case included the three elements of damages, usury, actual and exemplary. The evidence offered, especially including. Exhibit 3 (the release- reciting the apportionment), is prima facie conclusive of the proper apportionment of actual damages. While it is true that Safeway-Connell were not bound by the terms of the settlement agreement and release entered into between Hill and Reserve Loan group of defendants, yet it is without dispute that the burden was upon them to prove the proper amount of damages sought to be credited to them and their own attorney introduced in evidence the release which is now disclaimed.

When considered in the light of this full record we are of the opinion that the trial court should have allowed only a credit of $382.05 of the Reserve Loan settlement as applied to the $2,000 actual damage verdict. The judgment, when reformed by the allowance of this credit, would result in a judgment for $1,117.95 actual damages to plaintiff. Appellant’s Point 1 is sustained. Appellant’s Points 2 and 3 become immaterial.

In his Point 4 appellant complains of certain alleged prejudicial comments by the trial judge. The statements of the trial judge during the trial, complained of by appellant, are typified by such statements as: “Let’s move along”; “Let’s move along with this witness”; “All right, let’s get along, counsel”; “You are just wasting the Court’s time.” We have carefully considered all of these statements in their proper context scattered throughout the statement of facts and have concluded that no reversible error is shown. The trial was hotly contested and many witnesses were presented. We find that the trial judge was exceedingly patient and courteous to the attorneys and witnesses throughout the entire trial. A trial judge is allowed considerable discretion in controlling the orderly progress of a trial and we find nothing in the statements of the trial judge in this case which would in any manner result in embarrassment or prejudice to appellant. Texas Mexican R. Co. v. Bunn, Tex.Civ. App., 264 S.W.2d 518; Trinity Universal Ins. Co. v. Jolly, Tex.Civ.App., 307 S.W.2d 843.

By his Point 5 appellant complains of the action of the trial judge in overruling his motion made in limine requesting the court to instruct defendant not to make inquiry concerning plaintiff’s contingent fee contract. The question of attorney’s fees •was material on the issue of exemplary damages asserted by appellant. ' The .jury: found no malice, and therefore no exem-* plary damages, and the question of attorney’s fees became moot. Moreover, at the time the attorney’s fee contract was offered in evidence before the jury the attorney for. appellant acquiesced in its introduction. Any error on the part of the trial court in overruling the motion made in limine was therefore waived.

By his sixth point of error appellant complains of the action of the trial court in overruling special exceptions as well as exceptions to the charge relating to appellees’ defense of contributory negligence. The propriety of these rulings becomes immaterial in the light of the answer-of the jury to the issue on contribu-tpry negligence which was favorable to appellant. Any -error on the part of the court ■becomes harmless. Rule 434, Texas Rules of. Civil Procedure.- - '

The judgment 'of the trial court is modified, as above provided, and as modified, is affirmed, " Costs of appeal are taxed equally between appellant and appellees.

Modified.and affirmed.


author: PER CURIAM.

text:
    Houston FIELDS, Appellant, v. E. E. COTTEN, Appellee.
    No. 6755.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1964.

      Ernest Sample, Beaumont, for appellant.
    H. A. Coe, Jr., Kountze, Earl Stover, Silsbee, for appellee.
   PER CURIAM.

This is an election contest of a second primary election of the Democratic Party for the office of County Commissioner of Precinct #3, Plardin County. The executive committee of the Democratic Party certified Cotten to be the winner with 462 votes to 460 for Fields. The trial court entered judgment for Cotten finding he had received 459 votes to 457 for Fields.

Appellant Fields’ first point is that the .trial court erred in counting the votes of Robert Creiger and wife, Charlotte Creiger, because the Creigers were shown not to have the residential requirements to qualify for voting. This is a “no evidence” point and is a question of law for this court to determine by considering only the evidence favorable to the finding of the court that they were qualified voters, and disregarding all evidence to the contrary. We also bear in mind that the burden of proof was upon contestant to prove the Creigers did not have the residential requirements, and also that there is a presumption in favor of the validity of a vote cast. Cavallin v. Ivey, Tex.Civ.App., 359 S.W.2d 910.

The Creigers did not testify. Mrs. Creiger’s brother testified that Mrs. Creiger and her family moved to Batson in 1925. When asked how long she had lived there after 1925, he replied:

“A. That’s always been what you might say her home; she went to college and taught in Saratoga, but she lived at Batson a majority of the time; she worked some in Beaumont; she went into the Navy and then she came out of the Navy, and it was not too long after that that she married.”

He also testified to the following: She always told him she claimed Batson as her home and permanent address. That Mr. and Mrs. Creiger married about 12 years ago. That they paid their poll tax and registered in Hardin County, Batson, ever since they married. That Mrs. Creiger owns an interest in some property in the Batson area. That they do not own a home anywhere. That Mr. Creiger has been a Civil Service employee since they were married and has moved from time to time as his job called. They lived in Houston, Texas, six or eight months. He has neither lived nor worked in Hardin County. When Mr. Creiger’s retirement comes up, they plan to move back to Texas. They have always voted in Hardin, County in the past in Precinct #3. That the Creigers have bought their automobile license in Hardin County every year. They give Box 202, Batson, Texas, as their permanent mailing address. Mrs. Creiger’s daughter is buried in the family plot in the Batson Cemetery. The old home place is still standing to which she comes every time they come back to Texas. That Mrs. Creiger has two foot lockers and some pieces of small furniture in the home place in Batson.

The Texas Supreme Court in Mills v. Bartlett, 377 S.W.2d 636, announced , several principles of law as follow:

“Volition, intention and action are all elements to be considered in determining where a person resides * * ”
“Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined.”
“There is no specific length of time for the bodily presence to continue.”

The finding of the trial court in its judgment that Mr. and Mrs. Creiger were qualified to vote is supported by the evidence.

Appellant contends the Ethel Brackin vote should not have been counted by the trial court because the evidence conclusively showed she was not a resident of Hardin County for the entire six months period next preceding the election. This is also a “no evidence” point and will be considered in accordance with the rules already mentioned.

Ethel Brackin was called as a witness by appellant. She testified she was 64 years old and a single person. She testified she had been doing practical nursing work since her divorce about 1961. That during the six months period just preceding the 'election she had visited with her daughter in California from October 1963 until January 1964; then nursed Mr.- Hall in Beaumont until April 1964; then April 21, 1964, came to Saratoga to nurse her sister, Mrs. E. E. Cotton. She testified she had lived in Sara-toga from 1938 to 1957 where her children were raised and went to school, that her work took her away at times hut she spent all of the time she could in Saratoga when not working. That she did not intend to change her home place each time she changed jobs. She didn’t own a home anyplace and had never voted anywhere else except Saratoga. The following question and answer were given:

“Q. Have you ever left Saratoga with intentions of changing your home place from Saratoga to anywhere else?
“A. I never have; I always preferred Saratoga and claim that as my hometown; I know the people there; I’m acquainted there, and always had an interest there, and just home to me.”

The testimony in this case is controlled by the case of Jordan v. Overstreet, Tex.Civ. App., 352 S.W.2d 296. The evidence supported the finding of the trial court in its judgment that Ethel Brackin was qualified to vote in Precinct #3 of Hardin County, Texas.

Appellant contends the vote cast by Tex Proctor was void and illegal. This is based upon the argument that he cast an absentee ballot and then married on the same day and was not a resident of Hardin County on the date of the election. Once again this is a “no evidence” point and will be determined accordingly.

Tex Proctor was called as a witness by appellant and gave the following testimony: He voted absentee the morning of May 29th and was married that afternoon. He and his wife have been living in a trailer house in Daisetta, Liberty County, since the day of their marriage. He had been working in Hull since February 1964 and stayed with a sister in Daisetta until his marriage. He claimed Saratoga as his home. Went into the Army and returned to Saratoga. While working in Hull he returned to Saratoga every weekend. The majority of his personal stuff remained in Saratoga. He intended Saratoga to be his home and intends to return there. He owned an undivided interest in the home place in Saratoga. He and his wife set up temporary housekeeping in Daisetta but did not intend to live there permanently. His permanent home was Saratoga. This evidence supported the finding of the court that Tex Proctor was a qualified voter in Precinct #3 of Hardin County.

Appellant contends the court erred in refusing to hold Fred Bear’s vote to be void and illegal, because he had not resided in the county for a period of six months before the date of the election.

This is another “no evidence” point and will be determined in the same manner as the preceding points. There is uncertainty as to the dates of occurrence of several items in connection with this voter, but Fred Bear testified that he had lived in Thicket, which is located in Precinct #3 of Hardin County, off and on for 45 years and always claimed it as his home. That he had been operating a grocery store in Do-lan, which is in Liberty County, but decided to move back to Thicket about October 15, 1963. He began moving some of his things about November 28, 1963, to his brother-in-law’s home in Thicket. That he made a deal to buy a grocery store in Thicket December 9th. That everything was moved by December 15th. December 6th would have been the target date in order to reside in the county six months before the election June 6th. Since December 5th has spent only 3 nights out of Thicket. Stayed at his brother-in-law’s home until he bought a house trailer which he and his wife were living in before Christmas. He intended Thicket to be his home in December 3963. This evidence supported the finding of the court that Fred Bear was a qualified voter in Precinct #3, Hardin County.

Appellant contends the trial court erred in failing to find the Noel Guynes vote void and illegal because this voter had not made a written application for a ballot as required by law.' Appellant'alleged that* Noel Guynes had not signed an application, and had not sworn to such application for a ballot and that it was notarized in Hardin County after the absentee balloting commenced.' This application was introduced in evidence. It was dated May . 26, 1964, signed Noel Guynes by -Geraldine Collins and sworn to before Clarence McNeely by Geraldine Collins. ' Noel Guynes testified she called the County Clerk’s office by telephone from Beaumont and asked them to send her an absentee ballot. She talked to- Geraldine Collins. She voted absentee because' she' expected to. be out of Hardin' County on election day. She received the ballot by mail and returned it by mail.

This is an application for ballot made before the absentee balloting began and is therefore controlled by Art. 5.05, Subd. 1(ii), V.A.T.S. Election Code. Subd. 2 of Art. 5.05 was amended in 1963 and requires an application for ballot to be in writing and the form prescribed includes an oath to be taken. The most recent case on this point is Mitchell v. Jones, Tex.Civ. App., 361 S.W.2d 224, in which it was held this provision was directory. We hold, as in the Mitchell case, supra, since no fraud was alleged or proven, and the vote was cast, the trial court properly held that a substantial compliance with the law was had. The point is overruled.

Appellant contends the trial court erred in refusing to hold the votes of Mr. and Mrs. T. H. Hendrix to be void because of illegal assistance rendered outside the polling place. Mr. and- Mrs. Hendrix voted absentee in person in an automobile outside of the courthouse before the County Clerk. The County Clerk testified he helped them both vote and he did not have -any sworn helpers and no one took an oath as an assistant or as an election judge in giving assistance to these voters. He also testified that Mr. and Mrs. Hendrix needed somebody to write for them, and that he did all of the writing on their ballots except for their marks. Both Mr. and Mrs-Hendrix were occupying the same car, one in the front seat and one in the back, at the time they voted.

Art. 8.13 provides that no more than one person at a time should occupy any one compartment, voting booth or place prepared for a voter, and also describes the aid that may be given a voter. It also provides as follows:

“Where any assistance is rendered in preparing a ballot other than as herein allowed, the ballot shall not be counted, but shall be void for all purposes.”

We hold that appellant did not prove these voters received aid other than as prescribed by statute, and that the other provisions of the Election Code covering this situation are directory. Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224. The point is overruled.

In appellant’s Point 2 he argues that the Creigers did not have valid poll tax receipts; that the court erred in refusing to hold them void and in refusing to subtract their votes from the votes credited to Cotten. Appellant’s Point 3 is that the court erred in refusing to rule the Creigers votes illegal and void and refusing to subtract their votes from the votes credited to Cotten because neither Robert Creiger nor his wife had made an application for absentee voting as required by law. Appellant challenged these votes and the burden was on him to prove them to be illegal. They wrote a letter to the County Clerk requesting an absentee ballot, which was sufficient and complied with the Election Code. Their poll tax was paid at Batson, Texas, to Lee Smith, a deputy.tax collector, by Robert Yustj Mrs. Creiger’s brother, at the written request of the Creigers with money furnished by the Creigers. Art. 5.11 of the Election Code controls this point. It was amended in 1963. There are no cases decided after the 1963 amendment although the amendment cites Fugate v. Johnson, Tex.Civ.App., 251 S.W.2d 792, which is cited by the Supreme Court of Texas in its opinion of May 15, 1957, in-Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627. Art. 5.11 before the amendment did not provide that the vote would be illegal if its terms were not complied with. The 1963 amendment does not provide that a vote shall be void if its terms are not complied with. Art. 5.13 of the Election Code relating to payment of another’s poll tax by a candidate does not provide a vote shall be void if its terms are not complied with. In Fugate v. Johnson, supra, the following is found:

“Contestant claims seventy-two other votes were void because a person other than the voters purchased the poll taxes. Here again we must look to the act of the Legislature. If the Election Code invalidates such votes, it must say so. Newton v. Barnes, Tex. Civ.App., 150 S.W.2d 72. The law is contrary to the contestant’s contention. The law does not render poll tax receipts paid by others than the voters invalid, and the qualified voter has the right to vote regardless of how he may have obtained the receipt, if he was qualified under the law to obtain a receipt. The disqualification must attach to the voter himself, and, when in possession of a Poll Tax Receipt, he has the right to vote. Warren v. Robinson, Tex.Civ.App., 32 S.W.2d 871, 872; Reynolds v. Cobb, Tex.Civ.App., 196 S.W.2d 60; Robinson v. Bostrom, Tex. Civ.App., 21 S.W.2d 580; Wallis v. Williams, 50 Tex.Civ.App. 623, 110 S. W. 785.”

The ruling of the trial court that the Creigers possessed valid poll tax receipts was correct. There is evidence supporting the rulings of the court. Appellant’s Points 2 and 3 are overruled.

Appellant filed a motion to supplement the record by requiring the carrier envelope for the A. E. Payne absentee vote to be certified to this court as a part of the record in this cause. Appellant based this motion upon the authority of Rule 428 of the Texas Rules of Civil Procedure. Appellant argues that: “If the document in question is one which was before the trial court and examined by him, it may be properly certified as a part of a supplemental record. Willoughby v. Jones, [151 Tex. 435,] 251 S.W.2d 508 (Tex.Sup.Ct., 1952); It has been held many times that the rule for supplementing the record should be liberally construed. Barron v. James, [145 Tex. 283,] 198 S.W.2d 256 (Sup.Ct. 1946).” Counsel for appellant in this court, upon submission of this case, admitted that such carrier envelope was not filed with the district clerk. Hence, Willoughby v. Jones, supra, is inapplicable. Such carrier envelope was not offered in evidence by either party. Since it was not offered in evidence, no objections to the offer could be made and the trial court could not rule upon the offer. It is not a part of the record. Under Rule 428, this court does not have the power to supplement the record as appellant has requested.

The motion is overruled.

Appellant’s Points 7 and 8 contend that the votes of Mr. and Mrs. A. E. Payne were void and illegal because they did not make a written application for their absentee ballots, for which reason the court erred in failing to subtract their votes from the votes credited to E. E. Cotten. The pleadings of the appellant in no manner challenge the application for the ballots on the part of Mr. and Mrs. Payne. The applications for the Payne absentee ballots each contained a doctor’s certificate. They cast their ballots based upon such applications. The Payne absentee ballots were cast as a result of sickness or physical disability, rather than expected absence from county. These ballots are controlled by Art. 5.05, Subd. 1 (Sec. i). The applications are controlled by Subd. 2 of Art. 5.05 of the Election Code. The presumption is that they are valid and ■ such prevails unless contestant pleaded and proved them illegal. The proof is silent on how the applications were sent to the County Clerk’s office. The record contains no proof that the applications were not mailed to the Clerk. It is presumed that they were mailed to the Clerk. Mitchell v. Jones, Tex.Civ. App., 361 S.W.2d 224, 230. The matters complained of in appellant’s Point 7 were not pleaded or proven in the trial court. Appellant’s Point 7 is overruled.

Appellant’s Point 8 is that the court erred in failing to hold the vote of A. E. Payne void and illegal and to subtract it from the votes cast for E. E. Cottén because of information supposedly upon the carrier envelope of A. E. Payne which is not in evidence and which was not filed in the trial court with the district clerk. Appellant’s Point 8 is overruled.

Curtis Flowers and Charley Oliver voted absentee in the June 6, 1964, election. Both Charley Oliver’s application and Curtis Flowers’ application contained the certificate of a doctor, in each case stating that such applicant because of sickness or physical disability would not be able to appear at the polling place on the day of the election. Their respective applications for absentee ballot were not mailed to the County Clerk’s office. It was on this ground that their votes were challenged by contestee, which challenge was sustained by the trial court. There is evidence that such applications for absentee ballot were not mailed to the County Clerk’s office. The certificate of the doctor in each case supports the finding that each of such applicants, because of sickness or physical disability, could not appear at the polling place on the day of the election. These ballots of Flowers and Oliver both are governed by the provisions of Art. 5.05, Subd. 1 (i), which provides in part: “If the application is delivered to the clerk by any method other than by mailing it to him, the ballot shall be void and shall not be counted.” Oliver attempted to testify contrary to the facts stated in the doctor’s certificate. The terms of the written doctor’s certificate were not permitted by the court to be changed by parol testimony of Mr. Oliver. The ruling of the court was correct. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627, gives the reason why a written ballot cannot be varied by parol testimony. The same reasoning applies to an application for an absentee ballot. Appellant’s Points 9 and 11 contending such ballots did not have to be mailed to the County Clerk and should be counted are overruled.

Hazel Standley and Beulah Mae Broom each were permitted to vote at the polls. No issue was made by contestant that they were not qualified voters. On the contrary, appellant alleged them to be qualified voters and that their votes should be counted. Their votes were not counted originally because the election officials considered them mutilated. It appeared that the intention of each voter was clearly ascertainable. Under Art. 6.06 of the Election Code, such votes should have been counted because there is no law expressly prohibiting the counting of a ballot by reason of “mutilation” when the intention of the voter is clearly ascertainable. Mutilation was the only issue urged in the trial court by appellant for not counting the Hazel Standley vote. The trial court properly counted such ballots. Lewis v. Crump, Tex.Civ.App., 34 S.W.2d 616, 617; Honscom v. State, 10 Tex.Civ.App. 638, 31 S. W. 547 (June 6, 1895).

Appellant’s Points of Error 12 and 13 urge that Hazel Standley was not a qualified voter and that appellee had no pleading supporting the action of the trial court for which reasons the trial court erred in counting her ballot. Such points of error are overruled.

Appellant’s Point 15 questions the legality of all absentee ballots and that it was error to count any absentee ballot. In the alternative, in Points 16, 17 and 18, appellant urges that the court erred in refusing to order recanvassing of the votes cast absentee insofar as the same pertained to the election of County Commissioner, Precinct 3, that the court erred in failing to examine rejected absentee ballots in the possession of the County Clerk and erred in failing to re-examine the carrier envelopes and jacket envelopes from the absentee ballots which had been counted. Art. 5.05, Subd. 4, of the Election Code fixes a deadline for receiving absentee ballots. This was a county-wide election but in this precinct it was not contested on a county-wide basis. The election itself was county-wide. The deadline for receiving absentee ballots in a county-wide election is as follows:

“In county-wide elections and in elections less than county-wide where the authority holding the election has provided that absentee ballots shall be counted by a special canvassing board, the marked [absentee] ballot must be mailed back to the clerk in an envelope post-marked not later than midnight of the day preceding election day, and must be received in the clerk’s office before one o’clock p. m. on election day.”

This section of the Election Code was complied with.

There is evidence supporting the following: Absentee ballots cast during the legal time limit allowed for absentee ballots under Art. 5.05, Subd. 16, Election Code, and no others were delivered to the Special Canvassing Board and were counted except for a few rejected for valid reasons. The Special Canvassing Board has the duty of counting the ballots. This was done by the Special Canvassing Board. The ballots were canvassed by the County Democratic Committee. This section of the Election Code was complied with. Due to a misunderstanding of the County Clerk, absentee voting was started under Subd. 4 of Art. 5.05 of the Election Code on the 20th day before June 6, 1964, instead of the 10th day as provided in Subd. 16 of said Art. 5.05. This mistake was discovered about May 27, 1964. Theretofore, some ballots had been mailed to applicants. This was corrected immediately. Every effort was made that those voters involved in the mistake would have an opportunity to cast a legal ballot absentee. No ballots were counted except those complying with Subd. 16 of Art. 5.05. The poll tax receipt of each applicant for an absentee ballot showed the precinct in which the voter was entitled to vote which information was available to those charged by law with handling and counting the absentee ballots. There is evidence that those entitled to vote absentee in this election did vote and those not entitled to have their votes counted did not have their votes counted.

The Supreme Court of Texas in Thomas v. Groebel, 147 Tex. 70, 212 S.W.2d 625, said: “The right to vote is so fundamental in our form of government that it should be as zealously safeguarded as are our natural rights. * * * It is sufficient, however, that we apply here the less extreme and well established rule of construction that statutes regulating the right to vote should be given a liberal interpretation in favor of that right.” As announced in Mitchell v. Jones, Tex.Civ.App., 361 S.W.2d 224: The purpose of the Election Code is to detect, prevent and punish fraud, to preserve the purity of the ballot box, and to protect the exercise of free suffrage from all undue influence by bribery, tumult or other improper practice. This election contest was hard fought. There is no evidence of fraud or unfairness in the election involving this office. Those charged with holding the election had difficulty in construing the Election Code. Others have had that difficulty. It cannot be denied that counsel for appellant has prosecuted this election contest from its inception with all the ability and vigor at his command. There is evidence sustaining the rulings of the trial court. Accordingly, appellant’s Points of Error 15, 16, 17 and 18 are overruled.

Judgment of the trial court affirmed. No motion for rehearing in this cause will be entertained by this court.


author: WERLEIN, Justice.

text:
    Betty Lou STEVENSON, Appellant, v. Robert E. STEVENSON, Appellee.
    No. 14413.
    Court of Civil Appeals of Texas. Houston.
    Oct. 8, 1964.
    Armstrong, Bedford & Lambdin, Griffith D. Lambdin, Galveston, for appellant.
    Markwell, Stubbs, Decker & Dalehite, Elmo M. Johnson, Galveston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Robert E. Stevenson, against Betty Lou Stevenson for divorce. Appellee filed a motion to dismiss the appeal, but in argument before this Court withdrew such motion, so that it will be unnecessary for this Court to consider the same.

Appellant first contends that appel-lee failed to establish upon full and satisfactory evidence that he had been an actual bona fide inhabitant of the State of Texas for a period of twelve months next preceding the filing of the suit. With this contention we do not agree. After reading the statement of facts and considering the entire record, we have concluded that the implied finding by the trial court that appellee was an actual bona fide inhabitant of the State of Texas for the required statutory period is supported by full and satisfactory evidence in spite of some apparent contradictions in appellee’s testimony. It will not be necessary, in view of our holding, to discuss the evidence upon which our conclusion is based.

Appellant asserts that the trial court erred in granting appellee a judgment for divorce because there is in the record no full and satisfactory evidence that appellant had been guilty of excesses, cruel treatment or outrages towards appellee of such nature as to render their living together insupportable, or that any conduct of appellant that may have caused appellee mental distress was studied, willful and deliberate, or intended to cause him any mental pain. These assignments are sustained.

The evidence shows that appellant and appellee were married February 16, 194S and that two children were born of their marriage. They lived together as man and wife in California until October, 1961, when appellee moved to Galveston to accept a position on the staff of Texas A. & M. University, which was a better position than he had with the University of Southern California. Appellee’s testimony concerning alleged cruel treatment by his wife is in large part his subjective interpretation of his wife’s mental processes without any definite basis in fact or reference to any specific acts or events. He testified that his basic feeling was that his wife had no respect for the actual mental and physical effort which went into carrying out his work, which was that of oceanographer and meteorologist; that on many occasions he felt that she was not agreeable to his form of relaxation in the home, and that he felt she considered his form of relaxation, which was listening to music and reading, as ridiculous; and that on one occasion when he was writing poetry she pointed out to him that this indicated that he had the living habits of a “beatnik”. Appellee freely admitted he was a non-conformist.

He also testified that in 1959 his wife read a letter which his- former secretary had written to him, and that she had considered it as being indicative of a rather close association with his secretary and of an affair with her. Nowhere in the record does appellee claim that his wife’s interpretation of the letter was unreasonable or that she was not justified in any accusation she may have made. Moreover, there is no evidence that appellee’s feelings were disturbed over his wife’s interpretation of such letter or that she had ever mentioned the letter again or had persisted in her wrong interpretation.

Appellee also testified to the telephone and doorbell ringing and of visitors in his home, and that he had recommended to his wife that the home be made as quiet as possible so that he could study. When living in Fullerton, California, appellee’s work was 35 miles from his home. He testified that the drive to work and the return drive in the evening created tensions in him. Certainly his wife was not responsible for such tensions. He also testified that because there were constant interruptions, telephone calls, lady visitors, and ladies’ bridge parties, things of that sort — his wife being active in community affairs — he recommended that people be notified of the fact that he was home, so that they would not be coming in and out. The evidence shows that he was trying to do his work on the occasions when he happened to be home' in the family living room although there were other rooms in the house where doubtless he could have worked as well. He further testified that his wife had certain sexual inhibitions, though he admitted that as late as July, 1962, when he took a trip to California, he had conjugal relations with her. He also complained that appellant was sometimes away from home as many as three evenings in a week in connection with her club work, and that it was his feeling that this often involved keeping her away from her family for too much time, and particularly away from him.

None of the foregoing accusations, which are a summary of appellee’s complaints, even if taken as true, constitute grounds for divorce. The matters complained of by appellee are at most trivial matters or disagreements which do not constitute sufficient basis for the disruption of the marriage relation. Hyatt v. Hyatt, Tex.Civ.App.1937, 111 S.W.2d 341; McCullough v. McCullough, Tex.Com.App.1931, 120 Tex. 209, 36 S.W.2d 459; Burns v. Burns, Tex. Civ.App., 76 S.W.2d 821; Mayen v. Mayen, 177 S.W.2d 240; Rodriguez v. Rodriguez, Tex.Civ.App., 186 S.W.2d 88.

Appellee wholly failed to establish by full and satisfactory evidence excesses, cruel treatment or outrages that would render living with appellant unendurable or intolerable. Bradshaw v. Bradshaw, Tex. Civ.App., 293 S.W.2d 210; Allen v. Allen, Tex.Civ.App., 267 S.W.2d 911; Cantwell v. Cantwell, Tex.Civ.App., 217 S.W.2d 450; Golden v. Golden, Tex.Civ.App., 238 S.W. 2d 619; Garcia v. Garcia, Tex.Civ.App., 185 S.W.2d 227. Even if we assume that appellee is a highly sensitive person, there is no evidence in the record before us showing that the actions he complains of with respect to mental cruelty, were studied, deliberate, willful or intended to injure him. While mental cruelty constitutes a ground for divorce, without proof of physical violence, it must be established that such mental cruelty was inflicted willfully or intentionally. McNabb v. McNabb, Tex.Civ.App., 207 S.W. 129; Buckner v. Buckner, Tex. Civ.App, 27 S.W.2d 311; Golden v. Golden, supra; Norvell v. Norvell, Tex.Civ.App., 194 S.W.2d 270; Humphreys v. Humphreys, Tex.Civ.App., 200 S.W.2d 453; Bartels v. Bartels, Tex.Civ.App., 227 S.W. 2d 260.

Judgment of the trial court is reversed and rendered in appellant’s favor.

Reversed and rendered.


author: PRESLAR, Justice.

text:
    J. P. (BUM) GIBBINS, INC., Appellant, v. Hugh McMILLAN, Appellee.
    No. 5663.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 23, 1964.
    Rehearing Denied Oct. 21, 1964.

      Leonard Howell, Midland, and Arturo R. Aguirre, El Paso, for appellant.
    Long, Welsch & Koehler, El Paso, for appellee.
   PRESLAR, Justice.

This is a suit on an account for supplies and services furnished in the deepening and working-over of an oil well known as the Chula No. 1. Bum Gibbins, Inc. sued McMillan and others as the alleged owners of the well and, from a take-nothing judgment as to McMillan, it brings this appeal. McMillan had owned the lease on which the Chula No. 1 had been previously drilled as a dry hole. He farmed it out to others (the other defendants), whose efforts to re-enter and obtain production resulted in the account sued for. Recovery was sought against McMillan on allegations that one Jay Harris, a geologist employed for the re-entry operations, was McMillan’s agent, and that the services of Bum Gibbins, Inc. were ordered by such agent. Alternatively it was alleged that because of prior dealings between the parties, Bum Gibbins, Inc. was entitled to assume or presume that Harris was acting as the agent of McMillan — that he was an apparent or ostensible agent.

Trial was to the court without a jury, and error is alleged as to certain findings of fact and conclusions of law relating to agency. We affirm.

Appellant assigns as error numerous findings of fact of the trial court by saying, “The court erred in finding * * * ” This form of assignment does not tell us whether he is saying there is no evidence to support the finding, or whether he is saying that there is insufficient evidence to support such finding, or — stated otherwise — that the finding is against the great weight and preponderance of the evidence. The rules for determining the two assignments are different. If the complaint is that there is “no evidence”, the reviewing court considers only the evidence favorable to the finding and must sustain the finding if there is evidence of probative force to support it. Hartford Accident & Indemnity Co. v. Gant, Tex.Civ.App., 346 S.W.2d 359; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696. A different rule is used in determining “insufficiency of the evidence” or “contrary to the great weight and preponderance” points. When such complaint is made we must consider and weigh all the evidence in the case and set aside the verdict and remand for a new trial if we conclude that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. All the evidence is considered — that which supports the verdict as well as that which is against it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. These rules have been carefully explained by Chief Justice Calvert in his article entitled “ ‘No evidence’ and ‘Insufficient Evidence’ Points of Error”, Texas Law Review, Vol. 38, p. 361-372. However, by his statements and arguments under each point of error, appellant makes it possible for us to determine in which instance he is alleging “no evidence”, “insufficient evidence”, or both. A careful consideration of the Statement of Facts leads us to the conclusion that his contentions as to no' evidence to support specified findings are without merit. There is found in the Statement of Facts some evidence of probative force to support each complained-of finding. We are also of the opinion that none of the findings of fact complained of is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, considering all the evidence in the record before us.

The established facts show that Harris was not, in fact, the agent of McMillan, so that the only theory upon which agency could be based is that of apparent or ostensible agency. We do not think the proof established the necessary elements of such an agency. “Apparent agent” or “ostensible agent” has been defined as follows: “An ‘apparent agent’ or ‘ostensible agent’ is one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, though he has not, either expressly or by implication, conferred authority on him.” Collins v. San Antonio Food Products & Produce Co., Tex.Civ.App., 188 S.W.2d 888. Thus it is based on estoppel, and it must come from representations or acts of the principal. Minneapolis-Moline Co. v. Purser, Tex.Civ.App., 361 S.W.2d 239 (err. ref., n. r. e.); 2 Tex.Jur.2d, pp. 484-485. In the case at bar the principal, McMillan, did nothing in regard to the transaction on which this suit was based. As to this transaction there was no conduct on his part which had anything to do with establishing agency. He did not know that the alleged agent, Harris, was employed on the Chula No. 1 well by its owners, nor did he know, until after the work was complete, that appellant’s crews were employed on the well. Any presumed agency would have to come from prior dealings of the parties. Harris was an independent consulting geologist, not a regular employee of anyone, but available as an independent contractor for those needing his services.. On at least four prior occasions during the past several years, he had been so employed by appellee McMillan on other wells at different locations, and he had, on those jobs, employed appellant’s crews in McMillan’s behalf. For appellee to now be estopped to deny that Harris was his agent, it would have to be said that the prior dealings were such acts by appellee as would lead appellant, acting in good faith and with reasonable prudence, to believe that Harris was his agent. The facts do not justify any such belief on appellant’s part, for Harris was not a regular employee of McMillan. He was not working on or in possession of property of McMillan. He was an independent contractor who apparently worked for many people over a wide area. Appellee did nothing more than those other people — that is, avail himself of the services of this independent contractor — and we are of the opinion that his actions did not amount to want of ordinary care and did not entitle appellant to presume that Harris was his agent in this transaction.

All points of error having been considered and all overruled, the judgment of the trial court is affirmed.


author: MONTGOMERY, Judge.

text:
    SECURITY FIRE & INDEMNITY COMPANY, Appellant, v. Howard L. HUGHES et al., etc., Appellees.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    W. A. Johnson, Paintsville, for appellant.
    J. K. Wells, Paintsville, W. W. Burchett, Prestonsburg, for appellees.
   MONTGOMERY, Judge.

Howard L. and Edna Hughes sued Security Fire & Indemnity Company, their insurer, to recover damages to their house, allegedly caused by blasting operations. Kentucky Road Oil Company and Vera Ford, administratrix of the estate of J. Winston Ford, deceased, were brought into the action by third party complaint. The Hugheses recovered a verdict for $2,500 against the insurance company. The jury found the other parties to be free of negligence. The insurance company appeals and urges that: (1) The possibility of any damage was too remote to sustain .the verdict p (2) the damages are excessive and are not-sustained by the evidence; and (3) any damage done was caused by the negligence of Ford.

The blasting operations were conducted by the Kentucky Road Oil Company and Ford, as contractors, in the construction of a highway near Paintsville. Ford has since died. The Hughes house was 3700 feet from the blasting.

In substance, the testimony of Hughes and his several witnesses was to the effect that the damage to his house consisted of cracking of plaster, foundation, and mortar, leaking of roof, settling of foundation, warping of floors, and sticking of doors, all of which occurred during the three months of the blasting operations and which was first noticed after the blasting began. There was evidence that the damages sued for had not been caused by partial flood inundation in 1957 since the flood damage had been repaired. The Hughes witnesses gave graphic descriptions of the blasting and the coincident vibrations and effects.

For appellant an architect testified that the blasting could not have caused the damage claimed because of the distance involved. He was corroborated in part by a carpenter. Likewise, there was conflicting evidence as to the negligence of the contractor. Three carpenters testified for Hughes as to the amount of damages: two said $2,575, and the third, $3,000. A carpenter testifying for appellant fixed the damages at $939.76.

The evidence was conflicting on the issues of whether the blasting was negligently done, whether it caused the damages, and the amount of the damages. There was sufficient testimony on which to submit each issue to the jury. Its verdict was supported by the evidence. River Queen Coal Company, Inc. v. Mencer, Ky., 379 S.W.2d 461. See also O’Regan v. Verrochi, 325 Mass. 391, 90 N.E.2d 671; Central Exploration Company v. Gray, 219 Miss. 757, 70 So.2d 33; Scranton v. L. G. DeFelice & Son, 137 Conn. 580, 79 A.2d 600; and Philpot v. Rhinesmith, 6 N.J.Super. 324, 71 A.2d 219.

Judgment affirmed.


text:
    Walter HICKEY, Jr., Appellant, v. Edwina Kidd HICKEY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    ...Don.,,]?.. Mills, Barbourville, for appelr lant. ,
    Carlos B. Pope, Barbourville, for appel- ’ lee.
   THOMAS. .A. BALLANTINE, Jr., Special Commissioner.

Appellant, Walter Hickey, Jr., seeks reversal of a judgment of the Knox ‘Circuit Court by which he was ordered to pay $8500.00 in lump sum alimony to appellee, Edwina Hickey.

No useful purpose would be served by a lengthy review of the evidence introduced before the Chancellor, and we deem it sufficient to adopt the findings of the Chancellor that a series of trivial incidents coupled with appellant’s penurious disposition produced a climate in which the marriage could no longer survive.

The only question presented to us on appeal is the propriety of the Chancellor’s finding that appellant should pay lump sum alimony in the amount of $8500.00. A brief review of the evidence concerning the appellant’s assets is necessary.

The parties were married in 1947 and lived together until March, 1962. During their marriage, appellant-husband was employed as an electrical contractor. While he suffered occasional lay-offs, it appears that his employment was fairly steady and his income was adequate to enable appellee and him to purchase a home in Corbin in 1952. The consideration for the home was $6900.-00 and this had been fully paid at the time of the separation. It is not disputed that appellee had no estate of her own and that the entire purchase price for the home was paid by appellant from his earnings. At the time of the separation of the parties, the house was valued at $6400.00 and neither party questions this valuation. Appellant also owned a Buick automobile valued at $1800.00 and a pickup truck valued at $750.-00. At the time of the separation, appellant also had about $11,000.00 in the bank at Corbin. His total estate was reckoned at about $20,000.00.

By the time of the trial, the money in the bank had been withdrawn and appellant contended that he had used the money to repay a loan made by his father to him some five years before. The loan was said to have been in the neighborhood of $10,000.00. When asked the purpose of the loan, appellant contended that it was to pay “some personal bills.” When pressed to name the creditors to whom he paid it, he refused to answer or to name any creditor, but he did state that none of the bills was “real big.” He testified that his wife knew nothing of the loan and that he did not tell her of it “because there was no trust there.”

The evidence also shows that in June after the parties separated in March, appellant executed mortgages on the automobile and the truck to his father.

Appellee, testifying in her own behalf, stated that at about the time of the purported loan, “his father also told us that he was so far in debt that he would never get out, because of his wife’s illness before she died.”

We agree with the Chancellor’s finding that there was in fact no loan from appellant’s father and that the transfer of funds to the father was made with the sole intent of defeating the wife’s claim.

Appellant urges that we follow the rule of thumb announced (but not followed) in Oldham v. Oldham, Ky., 259 S.W.2d 42, and reduce the lump sum alimony to one-third of the appellant’s estate. The Oldham case leaves such matters largely to the discretion of the Chancellor, directing that various circumstances be considered in reaching a determination, among which are the ages and earning capacities of the parties. In the case before us now, the record shows that appellant is employed in a well-paying trade, earning at least $3.00 per hour, and perhaps more, while appellee is employed at DuPont Lodge, earning $1.00 per hour, from which she must pay her transportation to and from her home in Corbin. We believe that the Chancellor has taken the various circumstances into consideration in arriving at the lump sum figure of $8500.00. We believe that his ruling is not erroneous, considering the total value of appellant’s estate to be in excess of $20,000.00.

Appellant also urges that he is entitled to credit for $1000.00 alimony pen-dente lite which he has paid pursuant to an order of the circuit court. The contention is without merit because the Chancellor is not required to give credit for this payment. Hicks v. Hicks, Ky., 290 S.W.2d 483. Presumably he gave consideration to it, along with all other appropriate factors, in fixing the amount of permanent alimony. To the extent that Oldham v. Oldham, Ky., 259 S.W.2d 42 and Wheeler v. Wheeler, Ky., 238 S.W.2d 1001 are in conflict on this point they are overruled. It is evident from the record that the amount awarded as lump sum alimony is reasonable and consequently it will be presumed that all proper factors were considered in this case.

It is recommended that the judgment be affirmed.

The opinion is approved and the judgment ’is affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Anna Elizabeth WEST, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    John B. Br.eckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge Walton, Madisonville, for appellant.
    King, Deep & Branaman, Henderson, for appellees.
   DAVIS, Commissioner.

In this condemnation proceeding under KRS 177.081 et seq. judgment for appellee landowners was entered pursuant to jury verdict for $13,835. The county court commissioners had awarded $4,582.50.

The appellant presents three assertions of error: (1) It was error to exclude evidence of the prices paid in comparable sales, (2) error in admission of evidence of sales •of two and three-acre tracts because not comparable, (3) court’s failure to set aside verdict for irregularity in reception and modification of the verdict.

The Department of Highways offered only one witness as to the value of the land and consequent damages. (This trial was prior to our decision in Commonwealth, Dept, of Highways v. Sherrod, Ky., 367 S.W.2d 844.) The witness gave evidence reflecting his competence as an appraiser of the land involved. He was asked whether he had considered comparable sales, and replied that he had, but the court •refused to permit the witness to relate the ■details of the sales. Appellees’ objections were that the purported sales were, in fact, not comparable. The details of the sales were presented by avowal. The compara-bles sought to be used ranged from 2 to 8 miles from the instant land; some of them lie on roads inferior to US Highway 41 on which the land in controversy is located. However, the appellant’s witness asserted that he considered the properties to be comparable, and said that he had made normal appraisal adjustments for differences in lo•cation and other factors.

We think the trial court erred in refusing the proffered evidence of the comparable sales. The value and admissibility of evidence of comparable sales in cases of this type is beyond challenge. Com., Dept. of Highways v. Oakland United Baptist Church, Ky., 372 S.W.2d 412. Our cases recognize the need for a preliminary showing of comparability. Stewart v. Com., Dept. of Highways, Ky., 337 S.W.2d 880. The cases just cited, and others, point out that exactly comparable sales are not likely to be found, and take the realistic view that “where the properties are reasonably similar, and a qualified expert states his opinion that they are sufficiently comparable for appraisal purposes, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony altogether.’ Stewart v. Com., Dept, of Highways, Ky., 337 S.W.2d 880, 884.

The question at hand has been so recently and thoroughly considered in West Kentucky Coal Co. v. Com., Dept. of Highways, Ky., 368 S.W.2d 738; Com., Dept. of Highways v. Finley, Ky., 371 S.W.2d 854, and the cases therein discussed, we will not undertake to restate the rulings and views of the court. It is sufficient to observe that we consider the cited cases as governing the case at bar and impelling reversal of the judgment for error in rejecting the evidence of comparable sales.

We find no merit in the appellant’s ■contention that it was error to admit appel-lees’ evidence relating to sales of tracts of two and three acres. There was competent evidence relating to the adaptability of the subject land for subdivision. Since, upon another trial, the question of total award will be presented as prescribed in the Sher-rod case, supra, the comparable sales of the small tracts will properly relate to values, both before and after the taking.

We do not reach the asserted error in the manner of receiving the jury’s verdict and permitting its modification, since this will not recur at another trial.

The judgment is reversed for proceedings consistent with the opinion.

PALMORE, J., not sitting.


author: WILLIAMS, Judge.

text:
    James BARKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.

      James Barker, pro se.
    Robert. Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Thomas H. Cubbage, Gommonwealth’s Atty., Leitch-field, for appellee.
   WILLIAMS, Judge.

In 1949 James Barker was found guilty of rape and sentenced to life imprisonment without benefit of parole by the Breckin-ridge Circuit Court. Upon filing his motion to vacate the judgment (pursuant- to RCr 11.42), and in accordance with his motion that he be permitted to proceed in forma pauperis, an attorney was appointed to assist him. A hearing was held and the motion was ordered overruled, from which order this appeal is taken.

Before the court were the questions of whether (1) his original sentence was in violation of his constitutional or statutory rights; (2) the trial court was proceeding within its jurisdiction; (3) the sentence was in excess of that authorized by law; and (4) the judgment of the trial court was void. The trial court found the appellant failed to state any facts to substantiate his allegations on any of the above points. He also found that the witnesses appellant wished to present either testified at the first trial or would be of no benefit to him on a new trial. And his claim of inadequacy of counsel at the first trial was specifically held to be without merit, which left nothing material upon which appellant could base his motion to vacate the original judgment.

During the course of the hearing under RCr 11.42 appellant was placed on the witness stand and permitted to make any statement he wished. He was questioned by his attorney concerning the grounds upon which he based his motion and was prompted by his attorney to state to the court any. reason why his original judgment should be vacated. ■ It appears from the answers given by appellant and the statements made by him that his primary interest is to have the sentence amended to' exclude the provision that he is not eligible for parole.

The trial court found that appellant had stated no grounds for vacating the judgment either to the court or to his attorney. The court examined the Order Book containing the orders entered at appellant’s trial and found no error in the record.

The-judgment is affirmed.


author: MILLTKEN, Chief Justice.

text:
    Joe GREEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Fritz Krueger, Somerset, for appellant.
    Robert F. Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MILLTKEN, Chief Justice.

The appellant, Joe Green, was convicted and sentenced to sixty days in jail and fined $100 for the sale of alcoholic beverages in dry local option territory.

We have reviewed the record, and the motion for appeal is overruled. KRS 21.-140(2).


author: PLEAS JONES, Special Commissioner.

text:
    Dorothy FARROW, Appellant, v. William A. CUNDIFF, Appellee.
    Court of Appeals of Kentucky.
    June 26, 1964.
    As Modified on Denial of Rehearing Nov. 13, 1964.
    Ephraim K. Lawrence, Jr., Louisville, for appellant.
    Edward J. Hogan, Joseph H. Taylor, Louisville, for appellee..
   PLEAS JONES, Special Commissioner.

This is an appeal' from a judgment in the amount of $700.00 in favor of appellant,Dorothy Farrow, against appellee, William A. Cundiff.

The action grew out of an automobile accident which occurred in Jefferson County on December 17, 1960. Mrs. Farrow was a passenger in an automobile which was stopped in the line of traffic on Dixie Highway. The appellee’s car, which he was operating, collided with the rear of the car in which appellant was a passenger.

Appellant sued Cundiff for $7,000.00 for personal injuries. The case was tried by a jury and judgment was entered for appeh lant on the verdict.

It is insisted that the court erred on the following grounds:

(a) In refusing to permit appellant to ask a question on voir dire examination ;
(b) in directing appellant to read prejudicial and incompetent evidence;
(c) in refusing to permit appellant’s hus-’ band to testify; and
(d) that the damages awarded were inadequate.

Each of these contentions will be discussed and disposed of in the order named.

With respect to appellant’s first contention, an examination of the record reveals that the question complained of was never asked the jury. It does show that appellant’s counsel, out of the hearing of the jury, requested that he be permitted to ask the jury if any of them had any scruples or objections against returning a verdict for the full amount of the prayer if the law and the evidence justified it. The appellant relies on Temperly v. Sarrington’s Adm’r, Ky, 293 S.W.2d 863. In that case a similar question was asked the jury and the court held the question to be proper. We do not think that case applies here. We are of the opinion that had the question been asked and the court had refused an answer thereto that such would have been proper because the court has a wide discretion in permitting an examination on voir dire in civil cases. See Brumfield v. Consolidated Coach Corp, 240 Ky. 1, 40 S.W.2d 356. Since the record reveals the efforts of the court to obtain a fair and impartial panel of jurors, we feel that appellant was in no wise prejudiced, nor did the court abuse its wide discretion in refusing counsel permission to ask the jury this question.

Appellant next argues that the court erred in overruling her motion that, in the reading to the jury of her doctor’s deposition (taken by the appellee for discovery) there be deleted, as not responsive and as irrelevant, a portion of a sentence in which the doctor stated, “I have never been able to get muscle soreness out of a patient until after the case was settled * * The doctor had been asked this question:

“Doctor, do you have any fixed medical opinion with any degree of reasonable certainty that this woman does or does not have any permanent injury arising out of these injuries that she claims now?”

The doctor’s answer was this:

“I actually feel that Mrs. Farrow is not seriously injured, that she is — that she actually does experience discomfort brought on by the fact that she did sustain an injury coupled together with her nervousness by nature and based on my experience on these accidents. * * * Based on my experience and seeing accident cases * * in that with no reflection on any patient at any time, I have never been able to get muscle soreness out of a patient until after the case, was settled and I think this is a justifiable statement with no reflection on the patient because a nervous person like Mrs. Farrow is always thinking about her complaints and its being brought to her mind as she’s a person who gets upset easily and the thought of any lawyers or any litigation upsets her and I think that once I get this patient out of any kind of a court problem at all that I will be able to handle her well and a lot easier and I’ll be delighted from my professional standpoint once it is over.
“I think I’ll be able to be of more service to Mrs. Farrow then. This is no reflection on her and I don’t think that she is malingering. I think she is just nervous, a nervous person who is easily upset.”

The doctor’s statement, taken in its entirety, is responsive to the question asked and is relevant to the issue. In substance the doctor said that Mrs. Farrow was suffering from a legitimate compensation neurosis. His comment that he never had been able to get muscle soreness out of a patient until after the case was settled was helpful rather than harmful to the plaintiff because it tended to show that the kind of disability Mrs. Farrow had, though not serious, was a valid one. In our opinion the trial court did not err in refusing to delete the comment.

The court refused to permit appellant’s husband to testify as to her damages simply because the parties had a stipulation to exchange the names of witnesses. Here the name of the proposed witness was not furnished appellee. It is the contention of appellant that the court was in error on this point. We cannot concur in this conclusion. The record reveals that appellant’s counsel stated that he would like to make an avowal, but no such avowal was ever made, and this court cannot possibly determine if the court’s refusal to permit the witness to testify was prejudicial. The appellant testified at length concerning her alleged special damages; the bills of her physician and also the drug bills. Appellant cites Barnes v. Jones, Ky., 351 S.W. 2d 506, to support her contention that the exclusion of her husband as a witness was prejudicial. We do not think that case is controlling here. In that case the trial court refused to permit the introduction of testimony in regard to the amount of special damages incurred by appellant. We are of the opinion that the preclusion of this testimony was not prejudicial.

It is next insisted by the appellant that the amount of damages awarded her was inadequate. The evidence with respect to the loss of earnings by appellant was entirely speculative. She was not employed at the time of the injury and had actually lost no earnings, though the question of lost earnings was submitted to the jury by instruction. According to the testimony of Dr. Morgan, her own physician, the appellant was not seriously injured. He testified that appellant did experience discomfort brought on by the fact that she did sustain an injury coupled together with a nervous condition. The proven special damages for medical expenses were $357.86 which leaves a balance of $342.14 of the $700.00 awarded to be applied toward loss of time and for pain and suffering.

Courts generally are not disposed to set aside verdicts as inadequate unless the amount awarded is so small and in such variance with the facts as to indicate the verdict was influenced by passion and prejudice. Wilkins v. Hopkins, 278 Ky. 280, 128 S.W.2d 772; Rhodes v. Young, Ky., 248 S.W.2d 416; Anderson v. Kinloch, Ky., 252 S.W.2d 24.

From all of the evidence in this case we cannot say that the jury’s verdict was inadequate. To say so would usurp the province of the jury.

It is recommended that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: C. R. WALDEN, Special Commissioner.

text:
    Clara STEWART, Appellant, v. Elias BRANDENBURG et al., Executors of Estate of Emma Center, Deceased, Appellees.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Henry C. Cox, Lancaster, for appellant.
    James S. Chenault, Chenault & Coy, Richmond, for appellees.
   C. R. WALDEN, Special Commissioner.

This is an action by Clara Stewart against the executors of the estate of Emma Center for the value of the decedent’s estate or, in the alternative, for the reasonable value of plaintiff’s service to the decedent. The jury verdict for the plaintiff in the sum of $4,500 was set aside by the trial judge, and a judgment notwithstanding the verdict entered for the defendants. The trial court, pursuant to CR 50.03, ruled that in the event the judgment n. o. v. were held erroneous, then the verdict is flagrantly excessive and a new trial should be awarded. The parties will be designated plaintiff and defendant.

The plaintiff is the wife of the decedent's nephew. She claims that over a period of many years prior to the decedent’s death in 1959 she rendered various services to the decedent such as gathering eggs; washing her clothes; cleaning her house; driving the decedent to town for shopping, to visit friends, to attend funerals; gathering the vegetables from her garden and occasionally cooking for her. She maintains that the decedent repeatedly told her, “I won't pay you now but you will be paid later on” and, “You will get paid for this and you will be paid well.” Throughout much of the period in dispute plaintiff was employed in a full-time job working 5[4 days per week.

During the year 1958 plaintiff only saw the decedent on occasional visits. The nurse who attended the decedent during the four months preceding her death in September, 1959, testified the plaintiff never visited the decedent during that time. Various witnesses for the defendants testified that as late as 1953 the decedent was able to care for others who were ill. Another witness, who shared rooms in the same dwelling house as the decedent, stated that during 1958, one year before her death, she was able to and did take care of herself. Witnesses for the defendants deny ever hearing the decedent mention any payment or the expectation of making any payment to the plaintiff. Witnesses for the plaintiff, on the other hand, do recall the decedent’s statements that plaintiff would be paid for her services.

The general rule is that members of a decedent’s “family” cannot recover for ordinary and usual services furnished to the decedent unless there is an expressed or implied contract for the payment of such serv'ces. The law presumes such services gratuitous when rendered by relatives, and where a relative alleges the existence of a contract it requires clear and convincing evidence to overcome this presumption. As was stated in Thompson v. Close, 280 Ky. 720, 134 S.W.2d 635, 637 (1939), “the express agreement must be clear and convincing that such an agreement was made, and that casual or indefinite expression of an intention to pay, even by the execution of a will, are not sufficient.” Even though the plaintiff is not a blood relation of the decedent, she is the wife of the decedent’s nephew, and the testimony clearly indicates she is a member of the family group. Thus, the rule found in McWhorter v. Pitman’s Adm’r, 196 Ky. 618, 245 S.W. 133 (1922); Sword v. Moore’s Adm’r, 303 Ky. 507, 198 S.W.2d 215 (1946); and Allen v. Smith, 208 Ky. 207, 270 S.W. 782 (1925), is equally applicable.

Absent an express contract, a member of the family may recover for services rendered a decedent only where the services are of extraordinary nature or where there is an expectation of payment and a clear indication on the part of the decedent of intention to pay. The services in this case do not qualify as extraordinary but are those typically rendered by a member of the family group to one of the family who is sick or ill. The trial court properly set aside the jury verdict and dismissed plaintiff’s complaint.

Prior to the trial of this action the defendant took but did not file the deposition of the plaintiff. The trial judge sustained plaintiff’s motion that this deposition be filed. The deposition inquired in some detail into plaintiff’s services to the decedent and into various statements allegedly made by the decedent indicating a possible intention to compensate plaintiff for her services. At the pretrial hearing the court ruled that the taking of the plaintiff’s deposition in which an inquiry was made into statements by the decedent did not constitute a waiver of the dead man’s statute. KRS 421.210(2).

Accordingly, at the trial of the action the court allowed the defendants to object to the admissibility of all of plaintiff’s responses insofar as they contained statements made by the decedent.

The question is presented to the court, for the first time since the adoption of the Civil Rules, whether the dead man’s statute, KRS 421.210(2), is waived by the taking of a discovery deposition of the claimant against the decedent’s estate. Although under the Civil Code of Practice, § 606(8), a party could take the opponent’s deposition as if upon cross-examination, he could not use that deposition upon the trial of the case unless it had been filed prior to the trial. See Civil Code, § 585. A number of cases of this court have held the mere taking of the deposition of a claimant regarding transactions with a decedent removed the disqualifications imposed by the dead man’s statute and allowed that witness to testify to these transactions at the trial. Wilhelm v. Orlamuende’s Adm’x, 228 Ky. 719, 15 S.W.2d 511, (1929); Arnold v. Cocanaugher, 170 Ky. 712, 186 S.W. 488, (1926) ; Coy v. Pursifull, 249 Ky. 57, 60 S.W.2d 93, (1933) ; Hull v. Simon, 278 Ky. 442, 128 S.W.2d 954, (1939). Some Kentucky cases have held the critical element constituting waiver of the dead man’s statute to be not the taking of the deposition and inquiry regarding transaction with the decedent, but rather a filing of those depositions as a part of the record. Young v. Mitchell, 302 Ky. 551, 194 S.W.2d 965, (1946) ; Biehl v. Biehl’s Adm’x, 263 Ky. 710, 93 S.W.26 836, (1936) ; Arrington v. Size-more, 241 Ky. 171, 43 S.W.2d 699, (1931). In Young the deposition was filed. The court held that the appellants had thereby waived the incompetency of the testimony. In Biehl the court held an unfiled deposition did not constitute waiver. And in Arring-ton the court reaffirmed this view, citing the fact that a litigant can take a deposition and never file it. Accordingly, until 1953 the rule of law in Kentucky appears to have been the waiver of the dead man’s statute depended solely upon the filing of a deposition of a witness whose testimony involved inquiry into transactions with a decedent

CR 30.06 imposes upon the official taking a deposition the duty that he “[Pjromptly shall deliver the deposition to the clerk of the court in which the action is pending, or send it by registered mail to the clerk for filing.” Thus, the Civil Rules require that all depositions be filed and no longer leave the filing to the discretion of the litigants and their attorneys. The question now arises as to what significance the filing should have in view of the earlier cases which regard the filing (there permissive) as a waiver. This question is answered by CR 26.06, which reads:

“The taking of a deposition or the questioning of a deponent shall not make evidence admissible which is otherwise incompetent or constitute a waiver of objections to its admissibility.”

Thus, CR 30.06, coupled with CR 26.06, indicates no waiver is imposed by the taking or the filing of a deposition.

This court has repeatedly interpreted the Civil Rules to allow great freedom to the litigants in the pretrial discovery process. This freedom to range far and wide in the discovery deposition is merely intended as a means of allowing litigants the opportunity, prior to the trial, to develop fully all aspects of the case in order that the issues and the evidence may be more clearly focused at the time of the trial. Although in a case such as this it is possible for one litigant to extract from the other information, the admissibility of which he may later properly object to, this is a sacrifice which must be made for the overall freedom allowed in the rules.

The federal cases construing the Federal Rules consistently hold that the taking of a deposition does not constitute a waiver. One of the few exceptions is Mutual Life Ins. Co. v. Green, 37 F.Supp. 949, (W.D.Ky, 1941), which applied the evidentiary rules of Kentucky, whose rules at that time, as seen from the above cases, treated the filing of a deposition as a. waiver.

Appellants further contend that the trial court erred in awarding a new trial in the event this court were to hold the granting of a judgment n. o. v. erroneous. CR 50.03 allows the joinder of motion for a new trial with a motion for judgment n. o. v. and requires the trial court upon granting a judgment n. o. v. to rule upon a motion for a new trial. The purpose is to determine whether a new trial should he granted if the trial court’s judgment n. o. v. is vacated. In this case the trial court followed CR 50.03, as required, and we find no error in its ruling.

We recommend that the judgment be affirmed.

The opinion is approved by the court and the judgment is affirmed.