text:
    Mary E. DYE, Appellant, v. Jesse PETERSON, d/b/a Jesse Peterson & Son Furniture Company, Respondent.
    No. 23360.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      R. M. Gifford, Green City, for appellant.
    E. R. Jayne, Kirksville, L. F. Cottey, Lancaster, for respondent.
   MAUGHMER, Commissioner.

This is a suit for personal injuries. At the close of plaintiff’s evidence the Court directed a verdict and entered judgment for defendant. Plaintiff has appealed.

It is plaintiff’s theory and her petition charges that defendant failed to provide her with a safe place in which to work and negligently placed rolls of linoleum close to an aisle along which she walked, and that a roll of linoleum fell upon and injured her. Defendant introduced no evidence and contends, (a) that defendant was not guilty of negligence; (b) that plaintiff was guilty of contributory negligence; (c) that plaintiff voluntarily assumed the risks and defendant is not liable for an unsafe condition caused by a fellow servant.

In determining whether the trial court erred in directing a verdict for defendant we must take plaintiff’s evidence as true unless it is clearly unreasonable or in conflict with established physical laws and give plaintiff the benefit of every reasonable inference deductible therefrom. This doctrine is so universally recognized and followed that authority need not be cited in support of it.

On the vital issue of liability, plaintiff’s evidence consists of her own testimony and the physical facts. At all times in question defendant Jesse Peterson, d/b/a Jesse Peterson & Son Furniture Company, was engaged in the operation of a general retail furniture store at Kirksville, Missouri. Plaintiff was occasionally there employed by the day as a clerk. She was working in that capacity on Saturday, May 17, 1952, when the injury occurred. Like Caesar’s Gaul, the store was divided into three parts. There was a back room, a middle room, and the front part of the store. The telephone was located in the second or middle room. The furniture was arranged for display to prospective customers and shoppers along aisles — which numbered at least four. The refrigerators were kept on the north side of the wall of the front division. In front of the refrigerators rolls of linoleum, five or six feet in length, were placed, standing on end. Plaintiff said that on the morning of the accident these rolls of linoleum had been moved farther away from the refrigerators, thus lessening the width of the passageway. This had been done so that workmen could get to and repair some of the refrigerators. Plaintiff had seen and noted this change some time prior to her injury which occurred during the noon hour.

On the morning of the occurrence plaintiff was alone in the store. During the noon hour, a Mr. and Mrs. Woodward, who had purchased a library table, had called to “pick up” their purchase. Plaintiff was helping load the table when the telephone rang. She proceeded to the middle room where the telephone was located, answered it and talked with defendant Mr. Peterson, who wanted to know the marked price on a certain refrigerator. In order to obtain this information Mrs. Dye started down one of the aisles toward the front room where the refrigerator was located. The aisle she used was the shorter route although she could have used another aisle. She got as far as the linoleums and remembers nothing thereafter. Mrs. Dye was asked this question regarding the linoleum which fell upon her: “Then you undoubtedly did bump into it?” She replied: “I would imagine I did.” When she did not return to assist with the loading of the table, Mr. and Mrs. Woodward went into the store. They found her lying on the floor moaning, with one of the rolls of the linoleum lying across her legs. The evidence shows that Mrs. Dye received some injuries. However, the fact that she was injured and the extent or severity thereof, is not at issue or involved in this appeal.

A master is not an insurer of a servant’s safety. It is rather his duty to use reasonable care to furnish reasonably safe places in which to work. In Spindler v. American. Express Co., 232 S.W. 690, 691, our Supreme Court said:

“It is well settled that the master is not an insurer of his servant’s safety, and is only required to exercise reasonable care to furnish reasonably safe appliances and reasonably safe places to work. The facts being undisputed, it is a question of law for the court to determine whether such facts tend to prove that the master has failed to discharge the legal duty imposed upon him.

“Reasonable care is such care as ordinarily prudent persons ordinarily exercise under the same or similar circumstances. If the master furnishes the same kind of appliances and places of work ordinarily furnished by others in the same business, it cannot be said that he has failed to exercise ordinary care in so doing.”

The Supreme Court en banc in Miller v. F. W. Woolworth Co. et al., 328 S.W.2d 684, 688, cited with approval the rule as enunciated in Wilborn v. Desloge Consolidated Lead Co., Mo.App., 268 S.W. 655, 657, as follows: “ ‘It is true that the master is not an insurer of the servant’s safety, and, within the limits of reasonable care, is at liberty to conduct his business in his own way, nor is he bound to furnish the best or safest appliances or instrumentalities, or adopt the best and safest methods for doing the work, but it is his duty to exercise ordinary care to see that those furnished or adopted are reasonably safe. * * * The duty which the law casts upon the master is to use all reasonable precautions which ordinary prudence would dictate, under the circumstances, to avoid subjecting the servant to risk of injury’

The same court in the same case at page 690 of 328 S.W.2d also approved the following declaration by the Supreme Court of Pennsylvania in Cool v. Curtis-Wright, Inc., 362 Pa. 60, 66 A.2d 287, 289: “ ‘ “Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger but of negligence, and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way for which liability shall be imposed” ’ ”.

Plaintiff in our case testified that the larger rolls of linoleum (6 feet or more) were displayed on horizontal rolls. The shorter lengths were standing on end. There was no evidence offered to the effect that those engaged in similar businesses do not display rugs and linoleums of these lengths standing on end.

Mrs. Dye said she knew early on the morning of the accident that the rolls of linoleum were there standing on end and that the situation appeared to her to be dangerous, but that, nevertheless, she tried to go past them when she didn’t have room.

In Paubel v. Hitz, 339 Mo. 274, 96 S.W. 2d 369, 371, the Supreme Court approved the following statement from 20 R.C.L. 56, par. 52: “ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. * * * And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant.’ The text to 20 R.C.L. par. 52 is supported by abundant authority, and has become well settled in Missouri.”

Strictly speaking, the principle therein declared is applicable to an invitee rather than to a servant. However, the test as to the duty owed is certainly no greater to a servant than to an invitee. Besides, in our case plaintiff must surmount the doctrine of “incurred risk”. Judge Bennick, distinguished Missouri jurist, who served many years on the St. Louis Court of Appeals, in Dietz v. Magill, 104 S.W.2d 707, 711, said this on the subject of “incurred risk”: “In other words, if one voluntarily exposes himself to a known and appreciated danger, even though the same may be attributable to the negligence or carelessness of another, he may not recover for the injury sustained as a consequence of such exposure, and this regardless of the fact that he himself may perchance have been in the exercise of due care for his own safety at the time. Strictly speaking, the doctrine is actually one of ‘incurred risk’ (Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 816, 39 S.W. (2d) 345, 350), and while it is more akin to contributory negligence than to assumption of risk as we usually know it, it is yet to be distinguished from contributory negligence in that, as we have pointed ortt above, it does not take into account the fact that the person voluntarily incurring the known risk may nevertheless have been in the exercise of ordinary care in doing so.”

We have read the cases cited by appellant. They do not uphold her position. For example, in Woodson v. Metropolitan Street Ry. Co. et al., 224 Mo. 685, 123 S.W. 820, 30 L.R.A.,N.S., 931, decedent, a man of advanced years, started to cross from the sidewalk over the boulevard to a store on the opposite side of the street and fell on a pile of railroad rails, negligently left on the boulevard for at least five months, and received injuries from which he died. The Supreme Court reversed a judgment for plaintiff, holding that decedent was con-tributorily negligent as' a matter of law.

It is our opinion that the defendant and master’s action in placing the short rolls of linoleum on end next to one of the aisles does not, in the absence of a showing that such was not the practice of the trade, amount to lack of ordinary care and hence negligence. We further find no evidence of any inherent lurking danger which was not as fully apparent to plaintiff as to defendant. In addition, when plaintiff admitted she knew hours before the accident of the condition and when she said she thought it was dangerous, she was guilty of contributory negligence and “incurrence of the risk” when she voluntarily walked down this aisle and in her best judgment “bumped into one of the rolls” and suffered injury. Therefore, the action of the trial court in sustaining defendant’s motion for a directed verdict was proper and should be sustained.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: BROADDUS, Judge.

license: Public Domain

text:
    FIDELITY STATE BANK, a Corporation, Plaintiff-Respondent, v. John LA TEMPA et al., Defendants-Appellants.
    No. 23328.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Robert A. Sniezek, Selden M. Jones, Jr., Sniezek & Jones, Kansas City, for appellants.
    Gene R. Martin, Ennis, Browne & Martin, Kansas City, for respondent.
   BROADDUS, Judge.

The plaintiff-respondent instituted an action below entitled “Petition for Replevin”, wherein it sought possession of a 1956 Chevrolet motor vehicle as against the defendants-appellants, Olin M. DeWitt, and Creason-Porter Motors, Inc. Defendant-appellant Olin M. DeWitt, filed his separate answer to plaintiff’s petition and denied that it was entitled to possession, and therewith filed a counterclaim against it in the amount of $1,365 for damages for the wrongful taking of said motor vehicle. Defendant-appellant Creason-Porter Motors, Inc., filed its separate answer to plaintiff’s petition and denied its right to possession.

Other pleadings and defendants in this cause need not be mentioned since they are not involved in this appeal.

The parties hereto stipulated that the case be tried without a jury and proceeded to trial on an Agreed Statement of Facts, the pertinent portions of which are as follows :

One John La Tempa on August 15, 195S, borrowed from plaintiff bank, the sum of $1,327.27, to finance the purchase of a 1956 Chevrolet (the motor vehicle involved in this appeal), and on said date executed and delivered to plaintiff bank, The Fidelity State Bank of Kansas City, Kansas, his promissory note together with a chattel mortgage. On August 18, 1958, plaintiff delivered to and deposited with the Register of Deeds of Wyandotte County, Kansas, a true copy of said note and chattel mortgage and paid the filing fee therefor. The Register of Deeds received said copy and endorsed on the back thereof the time of receiving and filed same under date of August 18, 1958, as document number D-342600, and delivered to plaintiff a receipt for said instrument. The chattel mortgage was entered in said books of said Register of Deeds and indexed under the letter “T”, but was not indexed under the letter “L”. At all of the above times the said John La Tempa was a resident of Wyandotte County, Kansas, and was engaged in the business of operating a pool hall. The latter was not a dealer in cars and had purchased the car from his brother who was also a resident of Wyandotte County, Kansas.

That subsequent to the purchase of the above automobile a Kansas Certificate of Title was issued for said automobile to the said John La Tempa, and that said Kansas Certificate of Title did not show thereon plaintiff’s lien.

That on or about October 20, 1958, said John La Tempa, without the consent of plaintiff-bank, removed the automobile to Missouri and transferred possession thereof to a third person or persons, and thereafter possession was transferred to defendant-appellant Creason-Porter Motors, Inc., by John La Tempa in an assignment of the original Kansas Certificate of Title.

Between the dates of October 20, 1958, and November 8, 1958, defendant-appellant Creason-Porter Motors, Inc., did make inquiry of the Recorder’s office, Wyandotte County, Kansas, as to whether or not there was an outstanding chattel mortgage filed against the automobile in question owned by the said John La Tempa of record in said office and was informed that there was none filed under the name of John La Tempa.

On November 8, 1958, defendant-appellant Olin M. DeWitt purchased said automobile from defendant-appellant Creason-Porter Motors, Inc., for $1,450.

Thereafter on November 13, 1958, defendant-appellant Creason-Porter Motors, Inc., transferred possession of said automobile to defendant-appellant Olin M. De-Witt and assigned the Kansas Certificate of Title to the latter and certified to the Department of Revenue of the State of Missouri that it was the legal owner of same and warranted it was free of any liens other than created by defendant-appellant Olin M. DeWitt. Missouri Title issued thereafter.

That neither defendant-appellant Olin M. DeWitt or Creason-Porter Motors, Inc., or other persons taking possession of said automobile had actual knowledge of the prior lien of plaintiff-bank. On or about June 8, 1959, the Sheriff of Jackson County under plaintiff-respondent’s petition sought to obtain possession of said automobile and on June 17, 1959, said possession was given over to said sheriff and possession then given to plaintiff-bank. The value of the automobile on June 17, 1959, was $1,365. The Circuit Court ruled that plaintiff-respondent was entitled to possession of the automobile as against all defendants, and ruled in favor of plaintiff-respondent and against defendant-appellant Olin M. DeWitt on his counterclaim for damages for the wrongful taking. Defendants-appellants Olin M. De-Witt and Creason-Porter Motors, Inc., filed their Motions For New Trial together with Motions To Set Aside the Judgments, which were by the court overruled and thereafter said defendants prosecuted this appeal.

The ultimate question for determination is whether or not plaintiff has a valid chattel mortgage on the motor vehicle in question as against the claims of the defendants as subsequent purchasers of said motor vehicle. The defendants seize upon the fact that plaintiff’s lien or encumbrance was not shown upon the Certificate of Title to the motor vehicle in question, and contend that by reason thereof they took free and clear of plaintiff’s mortgage although it was recorded.

It should be noted that Kansas does not have a statute comparable to Sec. 443.480, V.A.M.S.1949, which provides in part: « * * * A mortgage on a motor vehicle shall not be notice to the whole world, unless the record thereof is noted on the certificate of title to the mortgaged motor vehicle, as herein provided; provided, however, that the provisions of this section shall not apply to chattel mortgages given to secure the purchase price or any part thereof ‡ ‡

It might also be noted that the proviso of the Missouri Statute would except the instant transaction, since plaintiff’s mortgage was security for the purchase price of the motor vehicle in question. See Interstate Securities Co. v. Barton, 236 Mo. App. 325, 153 S.W.2d 393; Butler County Finance Co. v. Miller, 240 Mo.App. 954, 225 S.W.2d 135.

Defendants, however, refer to the Kansas legislation pertaining to the registration of motor vehicles, transfers of ownership thereof, and for certificates of title thereto, as imposing upon a mortgagee a duty to have his lien endorsed or shown on the certificate of title. Yet, a careful search fails to reveal any such requirement in the Act, nor can there be found any requirement of a mortgagee to take and hold the certificate of title until the lien is satisfied. General Statutes of Kansas, 1957 Supp., 8-135. The statute is too long to quote in its entirety but, in summary, Subsection (c) (1) relates to certificates of title, and provides that an owner of a motor vehicle shall make application for a certificate of title which shall show, among other things, all liens and encumbrances thereon. Subsection (c) (2) provides for the assignment form on the reverse side of the certificate of title to be executed by the owner, and further provides that the assignment shall contain a statement of all liens and encumbrances at the time of the assignment. Subsection (c) (3) because of its importance in analyzing the decisions cited by defendants, we set out in full:

“Dealers shall execute, upon delivery to the purchaser of every vehicle, a bill of sale stating the lien or encumbrances thereon, in accordance with form prescribed by the commission for all vehicles sold by them. Upon the presentation to the commission or its authorized agents of a bill of sale executed in the form prescribed, by a manufacturer or dealer for a new vehicle, sold in this state, a certificate of title shall be issued in accordance with the provisions of this act: Provided, however, that simultaneously with the application for certificate of title, there is also an application for registration, and in no other cases.” (Emphasis supplied.)

A careful reading of the statute will disclose that the duty is upon an owner of a motor vehicle, and not upon a mortgagee, to make application for title and to show thereon any liens, and it is also the ovaner’s duty to execute an assignment of the title and to show thereon any liens at that time. No obligation is imposed by the statute, or the decisions, upon a mortgagee as such to see that his lien is shown in the assignment. Of course, if the mortgagee is the seller (owner) taking a mortgage back from the purchaser of the motor vehicle, he will, as the owner and assignor, be required to show his lien on the form of assignment. Subsection (c) (3) quoted above imposes an additional duty upon the dealer to execute a bill of sale upon the sale of any motor vehicle, new or used, and to state therein the lien or encumbrance.

A careful search of the Kansas decisions has failed to reveal any case factually in point. Although the defendants have cited three cases in their brief which they contend are controlling, these cases are clearly distinguishable from the case at bar.

In the case of General Motors Acceptance Corp. v. Davis, 169 Kan. 220, 218 P. 2d 181, 18 A.L.R.2d 808, principally relied upon by defendants, the plaintiff was as-signee of a dealer in motor vehicles, and, as the court held, could not claim any better position than the dealer. The dealer sold the car to another dealer on a conditional sales contract, but failed to comply with provisions of G.S.19S7 Supp. Sec. 8-135(c) (2) and (3), quoted above; that is, the owner-dealer made an assignment of the certificate of title without showing a lien therein, and failed to deliver a bill of sale showing its lien. Because the dealer had not complied with the statute imposing a specific duty upon him, and thereby clothed another with indicia of ownership, free and clear of liens, it was held that plaintiff was estopped to assert its lien against an innocent purchaser, although duly recorded.

The court therein further stated, 218 P. 2d at page 184:

“We need not discuss nor decide whether under the present motor vehicle act, it is possible for an individual, as distinguished from a dealer purchasing from a wholesaler, to execute a valid conditional sales contract on a motor vehicle.” (Emphasis supplied.)

The language of the court definitely shows the decision made was intended to apply only to dealers who fail to show their lien on the certificate of title or bill of sale.

In the case of Commercial Credit Corp. v. Kemp, 176 Kan. 350, 270 P.2d 209, cited by the defendants, the plaintiff was as-signee of the seller of the motor vehicle, who had taken a chattel mortgage from the buyer. The seller and purchaser had joined in an application for title which did not show the lien. Here again a statutory duty rested upon the seller (owner) of the motor vehicle to show its lien on the application for title, and, because of the seller’s failure in this respect, it was held that its as-signee would be estopped to claim a lien against an innocent purchaser.

The case of Universal Finance Corp. v. Schmid, 177 Kan. 414, 280 P.2d 577, 579, also was decided upon the principle of es-toppel. Plaintiff, in that case, took a moit-gage from a dealer in motor vehicles, who sold the automobile in the regular course of his business, without complying with the Kansas Statute G.S. Sec. 8-135 (c) (3). The court there held, that where a mortgagor in possession is a dealer in the type of goods mortgaged, and he sells to a purchaser in the regular course of business, the mortgagee would be estopped to assert its lien, as against an innocent purchaser without notice of the lien, because the mortgagee, by its manner of dealing with the dealer, had put it in the dealer’s power to mislead the purchaser.

None of the facts giving rise to an estoppel in the cases cited by defendants exist in the case at bar. In the instant case, plaintiff was lending money, as a banking institution, to the defendant La Tempa to purchase the automobile in question from his brother. Plaintiff was not the owner or the seller of the motor vehicle in question, and La Tempa was not a dealer in motor vehicles. He was buying the automobile for his personal use, and not to resell as a part of his regular course of business. Under these facts, no duty by the statutes of Kansas was imposed upon plaintiff herein, as was imposed upon the mortgagee in the cases cited by the defendants which called into application the principle of estoppel.

Defendants also attack the validity of plaintiff’s chattel mortgage upon the theory that it should have been indexed under the letter “L”, instead of the letter “T”, and that because the register of deeds thereby failed to properly index the same, plaintiff’s chattel mortgage did not impart constructive notice to subsequent purchasers and mortgagees.

Since plaintiff’s mortgage was executed and recorded in Wyandotte County, Kansas, we must refer to the Kansas Statutes and decisions to determine whether or not it was validly recorded so as to impart constructive notice to the world. The pertinent Kansas Statutes relating to Chattel Mortgages and the recording thereof are found in Chapter 58, General Statutes of Kansas 1949. Section 58-301 thereof imposes a duty upon the mortgagee to have the mortgage or a true copy thereof “forthwith deposited in the office of the register of deeds of the county in which the mortgagor resides”, in order to preserve the validity of his mortgage as against subsequent creditors, purchasers and mortgagees in good faith. Sections 58-302 and 58-306-impose certain duties upon the register of deeds with respect to filing, recording and indexing chattel mortgages.

In 14 C.J.S. Chattel Mortgages § 162, Indexing, the general rule is stated as follows:

“Except as required by statute the mortgage need not be indexed; and generally failure to index it, or defectively indexing it, does not affect the validitjr of the filing or recording, even where the officer is required by statute to index. * * * ”

Statutory requirement of indexing imposed upon the officer is generally held not to be a part of the “filing”, and that the mortgage will constitute notice, although the officer fails to index it, or indexes it in a defective manner.

Filing consists of delivery of the paper to be filed to the proper officer at the proper place within the proper time, and the receiving of it by him to be placed or kept on file or to be kept in his official capacity. Generally the deposit or lodgment of an instrument for filing in the proper office and its acceptance for that purpose by the proper officer constitutes a filing without regard to any action such officer may take or fail to take. See 76 C.J.S. Records § 4.

Although the Kansas decisions have not directly dealt with the factual problem presented here concerning the alleged failure of the register of deeds to properly index the chattel mortgage, nevertheless, the cases which have dealt with related matters have indicated that Kansas would follow the general rule. We are not aware of any Kansas decision which states the contrary.

In the case of Standard Implement Co. v. Parlin & Orendorff Co., 51 Kan. 566, 33 P. 363, the mortgagee delivered the chattel mortgage to the register of deeds at his borne on a Sunday and the same was not filed by the register at his office until the following Monday. During the interval a •creditor of the mortgagor attached the chattel. At page 365 of 33 P. the court stated:

“If the chattel mortgage had been deposited during the usual business hours of any week day by Eastwood with the register of deeds in his office, and the register had failed or neglected to file it until the next morning, or some subsequent day, the rights of the mortgagee would not be affected or prejudiced thereby in a contest with another creditor.”

In the case of Rathburn v. Hamilton, 53 Kan. 470, 37 P. 20, 21, the court stated:

“It is generally held that the duties imposed upon a filing officer of indorsing and recording a paper do not constitute any part of the filing, so far as the party delivering the paper is concerned, and that the rights of interested parties should not be prejudiced by the inadvertence or neglect of the officer to indorse the evidence of filing upon the paper. Wilkinson v. Elliott, supra, (43 Kan. 590, 23 P. 614); Implement Co. v. Parlin & Orendorff Co., 51 Kan. 576, 33 P. 360; * * *.”

In Tomlinson v. Tomlinson et al., 121 Kan. 206, 246 P. 980, loc. cit. 982, it was held:

“A paper is deemed to be filed when it is delivered to the proper officer and received by him to be kept on file. Parties who deliver a paper to the officer for filing should not be prejudiced by the omission of the officer to indorse and preserve it.” Citing Implement Co. v. Parlin & Orendorff, supra, and Rathburn v. Hamilton, supra.

It would seem clear from these authorities that the statutes and decisions of Kansas do not impose any duty upon a mortgagee to stand over the register of deeds to see that he properly files, records and indexes the mortgage, nor do they require a mortgagee to later check and verify the register’s books and records to see that he has properly performed his duties. When a mortgagee deposits his chattel mortgage for recording in the office of the register of deeds, he has complied with the requirements of the statute, his mortgage is deemed filed, and notice thereof is imparted to the world. Any act or omission of the register which prevents subsequent creditors or purchasers from discovering the prior encumbrance will not vitiate the mortgage lien.

The judgment is affirmed.

All concur.


author: HUNTER, Presiding Judge.

text:
    TOWN & COUNTRY SHOES FEDERAL CREDIT UNION, Appellant, v. James H. CRAMER and Lorraine Cramer, Respondents.
    No. 23318.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Harold W. Barrick, Sedalia, for appellant.
    J. Marion Robertson, Marshall, for respondents.
   HUNTER, Presiding Judge.

This is a suit for the unpaid balance on a promissory note for $2,363 by plaintiff-appellant Town & Country Shoes Federal' Credit Union against defendants-respondents James H. Cramer and Lorraine Cra-mer. The case was tried to the court as jury waived. The testimony of the parties-on the vital issues differed as will be indicated.

Harold W. Cramer, brother of defendant James H. Cramer, was endeavoring to obtain a loan from plaintiff credit union. The loan in the amount of $2,363 was obtained on February 3, 1956, and was evidenced by a promissory note in which plaintiff credit union was payee. It was signed by Harold W. Cramer and his wife as makers, and by James H. Cramer, Lorraine Cramer, Oliver P. Smith and Mrs. Roxie Smith. The evidence reveals that the latter four persons received nothing" from the transaction, and were accommodation signers. As will be developed, a principal dispute is whether the defendants signed the note to accommodate the plaintiff or to accommodate Harold W. Cramer.

According to the testimony of defendant James H. Cramer corroborated in the main by his wife, plaintiff’s agent and treasurer, James E. Anderson called him (James Cramer) on the telephone and asked him to sign the note. Defendant (James-Cramer) told Anderson that he had been, importuned by Harold to sign the note but that he had refused to do so because Harold “was poor pay, and that I didn’t want to sign for that reason. * * *

“Q. And just what did he say? A. He told me that Plarold was working for Town & Country, and that he had applied for this loan, and that he would like to make the loan, in fact, he already had the checks made out to pay off the obligations Harold was getting the loan for. He said he had to get approval of the board, and that my signature was only to get the board to approve it, that I wasn’t actually siging it to pay it in the event Harold didn’t pay it.
“Q. And you signed the note for him, and not for your brother? A. That’s right, because I had refused to sign it for my brother because I knew Harold was poor pay and I told Mr. Anderson that.
“Q. Did he call you again on a later note, the note that was sued on? A. Yes, he did; he told me Harold had some additional bills, but that he wanted again to make him a loan, to increase the note, and that the same signatures would be required to go before the board and the same procedure, and in both cases he sent Harold and his wife over with the papers and called me on the phone and gave me this information.”

Although plaintiff does not cover the subject in its brief either in its statement of facts or argument, the transcript indicates the note in suit was actually a second note, signed by the defendants at plaintiff’s request, and again according to defendants’ evidence, to accommodate plaintiff, with the understanding between plaintiff and defendants that defendants would not be liable thereon. This second note was in the nature of a renewal of the earlier note and also for a small additional amount of money. Cf. Federal Chemical Co. v. Hitt, Mo.App., 155 S.W.2d 899, 902(11); Ford v. Ford Roofing Products Co., Mo.App., 285 S.W. 538(8, 9).

Later, according to James, Mr. Anderson advised him Harold had quit his job, “and that it would be necessary for me and Mr. Smith to make half-payments on the note. I think I called him and asked him why it was necessary for me to make any payments when the agreement was I was signing it only as an accommodation to him (Anderson), and then he came to see me, and in the course of our visits he told me that all they ever expected me to pay was half of it, if I’d go ahead and pay half of it they wouldn’t sue me. I told Mr. Anderson I didn’t have half of the money, I would have to borrow it. He said, ’That’s all right, just make half of the payments, that’s all that will be necessary.’ ” Other testimony of defendants was to the same effect, i. e. that they believed they owed nothing as they had signed only to accommodate Mr. Anderson and his company but that to avoid litigation and further involvement they accepted Anderson’s offer that if they made half payments until the note was half paid that would end any obligation on their part to the plaintiff. Anderson told them that he would look to the Smiths, who also had signed the note, for the other half of the amount.

It is undisputed that defendants did make the mentioned half-payments until the balance owed on the note was half paid, and it was their contention at the trial that having relied upon and completed their bargain with plaintiff they owed nothing further.

Mr. Anderson was asked if he, acting as agent for plaintiff, entered into an agreement with defendants to compromise their liability on the note at 50 per cent of the balance due. He replied, “ * * * we received a proposition to that effect, but we did not accept it.” He denied he had ever told defendants that they would not be liable for any payments on the note. It was his testimony that they signed it to help Harold Cramer and his wife, and not to accommodate plaintiff.

The trial court found the issues for the defendants on plaintiff’s petition, and for plaintiff on defendants’ counterclaim which we do not discuss as defendants have not appealed therefrom.

On this appeal plaintiff contends the trial court erred “because said holding could only be based upon a finding that defendants were makers for the accommodation of plaintiff which is contrary to the facts and the evidence.” While we have omitted many of the details we have set out above sufficient of the evidence to amply demonstrate that of the only three witnesses at the trial, two of them, Mr. and Mrs. James Cramer, testified that they signed solely to accommodate plaintiff on plaintiff’s representation plaintiff would not request them to pay in the event of a default by the maker of the note. Only the testimony of Mr. Anderson was to the contrary, and the trial court apparently accepted defendants’ testimony on this issue.

Civil Rule 73.01 provides in cases tried by the court without a jury, “The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Upon our review of the evidence, and after giving due regard to the opportunity of the trial court to judge the credibility of the witnesses we have decided to accept defendants’ factual version on the disputed accommodation issue.

It has long been the rule in this state, and elsewhere, that the party for whose benefit accommodation paper has been made acquires no right against, and is not entitled to successfully sue, the accommodation maker, and as long as the rights of no other party have become involved, the accommodation party may set up the want of consideration as a defense to an action by the accommodated party since there is no consideration as between them. 11 C.J.S. Bills and Notes § 746, pages 300-302; Federal Chemical Co. v. Hitt, Mo.App., 155 S.W.2d 899(1); Tressler v. Whitsett, 321 Mo. 849, 12 S.W.2d 723(3); Gillihan v. Assel, 239 Mo.App. 28, 186 S.W.2d 772(5); People’s Bank of Glasgow v. Yager, Mo.App., 6 S.W.2d 633 (3); National Bank of Commerce in St. Louis v. Laughlin, 305 Mo. 8, 264 S.W. 706; Dickherber v. Turnbull, Mo.App., 31 S.W. 2d 234. We find no merit in plaintiff’s first contention.

Plaintiff next contends the trial court’s judgment “was contrary to the law and the evidence, because said defendants were primarily liable on said note under the applicable statutes. (Sections 401.016 and 401.029, R.S.Mo.1949 [V.A.M.S.].)” Plaintiff’s brief fails to develop this contention. Certainly if plaintiff implies thereby that defendants had no evidence to support any defense to the note, we are unable to agree with such implication. The law recognizes that there may be a compromise and settlement of a disputed claim. See 11 Am.Jur., Compromise and Settlement, Sec. 3, page 248; Robinson v. Benefit Ass’n of Railway Employees, Mo.App., 183 S.W.2d 407 (2); Duncan v. Black, Mo.App., 324 S.W.2d 483. According to the evidence defendants took the position that they owed plaintiff nothing on the note for the reason that they signed the note solely to accommodate plaintiff and that there was no consideration for the note as between them. Thereafter, according to defendants’ evidence, they and plaintiff entered into an agreement that defendants would pay only one-half of what the note called for in settlement of any liability defendants might have under the note. This and other evidence fully supports a finding that plaintiff and defendants entered into a compromise settlement of plaintiff’s claim on the note; that defendants have fully carried out the compromise settlement agreement, and that defendants owe plaintiff nothing.

The case of Central National Bank v. Walterscheid, 204 Mo.App. 179, 222 S.W. 912, concerned an action by a bank on a note claimed by the defendant maker to have been given for accommodation. The court held that evidence of a verbal understanding that the note was for the bank’s accommodation and was not to be paid was admissible, and, if believed, proved lack of consideration and was a complete defense between the original parties. See, also, Dickherber v. Turnbull, supra, 31 S.W.2d 234(2-3).

Section 401.029, R.S.Mo.1949, V.A. M.S., mentioned by plaintiff, provides that an accommodation party is liable on the instrument to a holder for value. However, it is well settled that a payee is not a holder in due course for value as between himself and the accommodation maker or signer where the note was signed for the accommodation of the payee. See Dick-herber v. Turnbull, supra, and cases cited above. Section 401.016, also cited by plaintiff, concerns delivery of a negotiable instrument and does not appear applicable to any contention of plaintiff on this appeal. Defendants do not question the delivery of the note.

The trial judge was not requested to make findings of fact or conclusions of law. His general finding for the defendants is supported by the evidence on both the grounds (1) that the note was given for plaintiff’s accommodation, and thus there was no consideration as between defendants and plaintiff ; and (2) that in any event plaintiff and defendants entered into a compromise and settlement agreement by the terms of which defendants have no further obligation to plaintiff.

On our own review of the evidence we have come to the same result as did the trial court. We not only do not think the judgment was clearly erroneous but rather we believe it to be for the party entitled to prevail under the law and the evidence. In so saying we acknowledge the correctness of plaintiff’s suggestion that the burden of proof on affirmative defenses rests with the defendants. See Section 509.090 R.S.Mo. 1949, V.A.M.S.; Duncan v. Black, supra, 324 S.W.2d 483(1).

The defendants have filed a motion to dismiss plaintiff’s appeal for failure to file a brief whose contents comply with the requirements of Civil Rules 83.05(a) (3) and 83.05(e). We have taken that motion with the case, and now overrule it.

The judgment is affirmed.

All concur.


author: SPERRY, Commissioner.

text:
    Roy H. BEHM, Respondent, v. KING LOUIE’S BOWL, INC., Appellant.
    No. 23174.
    Kansas City Court of Appeals. Missouri.
    June 5, 1961.

      Richard P. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for appellant.
    Allan R. Browne, Ennis, Browne & Martin, K. L. Stockman, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Roy Behm, sued defendant, King Louie’s Bowl, Inc., for damages growing out of injuries to person and property allegedly caused by defendant’s interference with the natural drainage of surface water, diverting it and causing it to flow in a torrent into plaintiff’s basement garage and shop. From an adverse judgment of $7,500, defendant appeals.

Defendant owns a large building in which is housed a bowling alley. There is a parking lot to the north and west. It is located on the west side of Troost and on the south side of 79th street, in Kansas City. Plaintiff operated an automobile repair shop located in the basement of Mock’s service station, situated on the west side of Troost and on the north side of 79th St. Terrace. The Bowl building sets 50 feet north of the Mock building, and, between, there is a vacant lot. Plaintiff’s building is reached by turning north from 79th Terrace onto his back lot, thence east into the building. There is a dike on the north side of the lot. A few feet west of plaintiff’s back lot, but several feet lower, there is a gully with a drain that passes under 79th Terrace. Its function is to permit the drainage of surface water coming from Troost, to the east, from the north as far as 79th street, and from the west about half a block. About halfway between Troost and Campbell, a block west of Troost, on 79th, there is a low place in the terrain and that low point continues south and east, across the parking lot, to the drain. There was testimony to the effect that it is from 3 to 6 inches lower at the lowest point in the lot than it is near the southwest corner of the building. The terrain in this area slopes from the north, east, and west, toward the drain, but it is some higher west of the low point than it is to the east of it up to the west edge of the Bowl building. It continues to slope to the south for about another block.

At the time the damages occurred, defendant maintained a board fence extending from the northeastern corner of its parking lot to the west limits thereof, thence to the southwestern corner, thence east to a point some 15 feet west of the southwest corner of its building. The entire parking area had been evenly graded, sloped and blacktopped: a row of railroad ties, laid end to end, were around the area, about a foot or two inside the fence; and another row, also end to end, extended from a point about 5 feet north and 35 or 40 feet west of the northwest corner of the building northward a distance of some 70 to 75 feet. There was testimony to the effect that the ties were 12 inches thick and 12 inches wide. They were not fastened together at the time the flood occurred but, afterwards, they were laid end to end with 15 inch intervals and a 2x4 was spiked to the ties on either side of the interval. The lower edge of the lowest boards of the fence were from 12 to 15 inches above the surface of the ground.

Witness Larry Miller had lived about a block west of Troost on 79th Terrace since he was a small child. He had played in this area before the Bowl improvements were built. He stated that he had witnessed heavy rains on the Bowl lot after it was built but before the ties were placed and that the water flowed evenly and without stoppage, smoothly, to the south.

On his way home from school on May 16, 1957, shortly after 3 P.M., he drove to 79th & Troost, thence west to Campbell, and to his home. He stated that it was raining hard but the flow of water on the parking lot was not heavy; that, after he arrived home, he walked down to plaintiff’s place and the water was coming down across the parking lot and into the gully leading to the drain, “But afterwards it started raining harder and the water sort of diverted itself from its original path into the culvert and half of it was going in there and half of it was going into Mr. Behm’s shop.” He stated that the water from the east side of the lot flowed towards the west until it hit the row of ties, which funnelled it down to the fence where there was another row of ties, “which funnelled it right down towards Mr. Behm’s shop”; that the water being funnelled to Behm’s flowed through the space between the end of the fence and the-corner of the building; that it was a strong flowing stream; that witness removed a car from the shop and placed it in Mock’s building upstairs; that plaintiff then started to drive a truck outside but was met at the door by a “gush” of water carrying five- or six railroad ties; that the truck was pushed backward, to the east side of the shop; that plaintiff untied his pet wolf in the back of the shop and started towards the door; that witness was in the middle of the shop at that time and started outside; that the water was up to his waist; that plaintiff was leading his pet wolf out; that witness got out and when he next looked he saw a flash and plaintiff was not within sight; that when he again looked inside,, plaintiff was just inside, to the south of the door, and witness helped him out; that the water was from five to six feet deep; that,, after the water subsided, there remained mud, rocks, and railroad ties, and that the air compressor, which had been right south' of the door was broken loose from te mountings and was in the debris.

Mr. Behm stated that, on the occasion of the flood, he was working in his garage and it was raining heavily; that Mr. Miller and Mr. Abbot were there; that Abbot was helping him; that a customer came for a car that was finished and took it out; that there was another car behind it with a door off and he asked Miller to take it out and put it upstairs; that Miller then went up toward the Bowl and someone shouted: “The water is backing up!”; that plaintiff put on his coat and walked up to the corner of the Bowl; that he saw the water backed up from the ties; that the ones in the center started floating down and piled up on the ones against the south fence; that the water was flowing in a strong current between the building and the fence and towards his garage; that when he saw the water coming fast he started back to get out his tow-truck “because I didn’t know what might happen”; that someone shouted: “King Louie is flooded, it is in the basement”; that Miller came around there and said; “There is some water coming around here, got some railroad ties”; that when he got the tow-truclc up (to the door) there was a wall of water, three or four feet deep, with ties, that came swooping in there; that it forced the truck backwards to the east wall; that he unchained his pet wolf and started out of the basement; that the air compressor was right beside the door and, fearing it might explode, he reached to turn off the switch; that at that time a pipe on the compressor broke, permitting the pressure to go down; that the electricity automatically started the motor; that there was a blinding flash and “I went under”; that, when he again was conscious, he was being assisted out of the basement by Miller.

He stated that, after the water subsided, several truck loads of mud and debris, including rocks, ties, and bowling pins, were hauled out; and that the pins were washed out of the basement of the Bowl building.

The testimony of the two eyewitnesses mentioned, if believed by the jury, will support a finding to the effect that the flooding of plaintiff’s place of business was caused by defendant’s placement and maintenance of ties as described in evidence. These witnesses were present and saw what happened. They told the jury what they saw. They said that the water came down the slope from the east, struck the north-south line of ties, was funnelled to the south where it struck the east-west line; that the water backed up behind the fence and rushed in a torrent between the corner of the Bowl and the east end of the fence, pouring into and filling defendant’s basement; that the water east of the center line of ties was diverted in its southward flow on the lower part of the lot and funnelled through the gap between the fence and the Bowl, in a flood, carrying ties and bowling pins, passing over and through the dike protecting the north side of plaintiff’s lot, and into his building.

The testimony is not contrary to the physical facts when the testimony concerning the nature of the terrain and the effect that the placement of the ties thereon may have had is considered. The surface of the lot east of the north-south line of ties sloped from north to south and from east to west, and the elevation at the east end of the fence, near the southwest corner of the Bowl, was from 3 to 6 inches higher than that at the low point where the line of ties was located. There was testimony to the effect that the ties were 12 inches thick. There were no spaces between them to permit the passage of water. These conditions could have caused the water to overflow from the basin, at the point where the witnesses said it did; and if ties floated from the north and piled up against the south fence, the flood condition may have been aggravated.

It is settled law that surface water is a common enemy which every man may ward off his land and throw on a lower owner, providing he does not collect it and discharge it to another’s damage. Polich v. Hermann, Mo.App., 219 S.W.2d 849, 854. “Nor may the upper owner discharge water in a different manner than it would usually and ordinarily have done in the natural course of drainage.” Polich v. Hermann, supra, 219 S.W.2d 855.

Here, water diversion was not the moving cause for the placement of the ties; but that is of no moment if defendant could reasonably have anticipated that the natural flowage of water would be restrained, collected and deflected to plaintiff’s damage. Corrington v. Kalicak, Mo. App., 319 S.W.2d 888, 894.

“An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever, of the injury. An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence, or that would not have resulted from it had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate, cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it— the result which may be reasonably anticipated from it.” Brubaker v. Kansas City Electric Company, 130 Mo.App. 439, 110 S.W. 12, 14.

Is is common knowledge that the area in which Kansas City is situated is subject to terrific downpours of rain at various times. While such excessive rains do not occur with regularity, they do occur with reasonable frequency. The disastrous floods of 1951 are of common knowledge to the people of this area.

Defendant had the right to improve its lot for parking purposes, grade, smooth and pave it, which improvement would accelerate the drainage of water coming onto the area. It should have anticipated that 12 inch ties, laid end to end with no interval between, would interfere with the free flowage of surface water. The lot was graded and paved in order to eliminate the muddy conditions, and quickly drain excessive water. Defendant should have anticipated, considering the lay of the land and the directions of natural drainage, that water would not be drained from the lot along the lines of natural flowage, because of the placement of the ties and of their size, but would be diverted and caused to flow in a different channel in a damaging flood, onto plaintiff’s lower property. • The jury could have found defendant guilty of actionable negligence and liable to plaintiff for damage to his property for having caused it to be flooded in the manner that it was.

Plaintiff sought and recovered for damages to his property and to his person in one count and one submission. Defendant contends that plaintiff may not recover for his personal injuries under the evidence here; that he saw the water coming around the corner of the Bowl, between it and the fence, and heading for his building (Plaintiff so testified) ; that he was then standing near the corner of the building, in a position of safety; and that defendant is not liable for damages that could not have been incurred had plaintiff not voluntarily entered the garage to salvage his personal property.

Plaintiff stated that he walked up to the corner of the building and saw some ties floating and saw the water, in quantity, coming around the corner of the' building and heading towards his garage; that he left and went to get his truck out of the basement because he didn’t know what might happen. He also knew that there were electrical appliances in the garage which might become dangerous if the place was flooded. His testimony was to the effect that when the front of the truck reached the door it was met by a wall of water three or more feet in height, carrying ties and debris. At that time, and from thence forward, he was in peril.

Had he not voluntarily entered the garage he would have been in no danger of suffering an electric shock coming from the air compressor, which was the cause of the injuries he received.

In Eversole v. Wabash R. R. Co., 249 Mo. 523, 541, 155 S.W. 419, 425, the court, in quoting from Donahoe v. Wabash, St. Louis and Pacific Railway Co., 83 Mo. 560, 563, said:

“ ‘A person voluntarily placing himself, for the protection of property merely, in a position of danger is negligent so as to preclude his recovery from an injury so received. It is otherwise, however, when such an exposure is for the purpose of saving human life, and it is for the jury to say, in such cases, whether the conduct of the party injured is to be deemed rash and reckless.’ In the body of the opinion ([Eckert v. Long Island Railroad Co.] 43 N.Y. [502], 506, 3 Am. Rep. 721), it is said: ‘The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury is negligence which will preclude a recovery for an injury so received * * ⅜ >»

That doctrine has been many times reaffirmed by the courts of this state and the following quote from Bacon v. Payne, 220 Mich. 672, 190 N.W. 716, appears in Johnson v. Terminal R. R. Ass’n of St. Louis, in Banc, 320 Mo. 884, 8 S.W.2d 891, 893:

“Conceding Marks’ negligence to the full and defendant’s responsibility for its consequences, his act in no sense imperiled Oliver, who was then in a place of unquestioned safety from the closely approaching train. His own subsequent reckless conduct in negligently placing himself too close to the track in front of the swiftly approaching train was the sole and proximate cause of the accident, not Marks throwing the switch. Without his independent intervening human agency no harm could have befallen him from what Marks did. No precedent or concurrent causative act of defendant placed him in jeopardy.”

According to the testimony of plaintiff himself he was in a position of safety, some 50 feet removed from his basement garage when he saw the dammed up water break through at the end of the fence in a torrent and head towards his place of business. He realized the danger to his truck and went to move it out of the garage. As a result of entering his garage immediately ahead of the crest of the flood, he was injured by electricity when the air compressor floated up causing a pipe to break. As a result, the electric motor was automatically activated and plaintiff was electrically shocked and injured.

“ ‘For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence, which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and therefore not negligent unless such as to be regarded either rash or reckless.’ ” Hill v. East St. Louis Cotton Oil Co., 202 Mo.App. 478, 214 S. W. 419, 421.

Defendant also complains of error in the admission of evidence regarding a rain in Sept. 1957, and of a U.S. weather report, which tended to show that, four months after the occurrence here, after the ties had been differently placed on defendant’s lot, a much heavier rain, falling in Kansas City, failed to cause any flooding on the lot or in the defendant’s garage. Similar evidence has long been accepted in similar cases and, subject to cross-examination and other evidence tending to explain it, may be considered by the jury for whatever it is worth. Experimental evidence is admissible if general conditions were the same or similar or substantially similar; differences in conditions are for the jury to consider and evaluate. Faught v. Washam, Mo., 329 S.W.2d 588, 598. The evidence objected to is of the nature of experimental evidence.

Defendant criticises instruction No. 1 but, on the whole, the instruction fairly states the issues. Upon retrial any correction necessary may be made.

The judgment is reversed and the cause is remanded for a new trial on the issue of damages alone.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: HAMILTON, Justice.

text:
    J. E. JOHNSON et al., Relators, v. COURT OF CIVIL APPEALS FOR the SEVENTH SUPREME JUDICIAL DISTRICT OF TEXAS et al., Respondents.
    No. A-8256.
    Supreme Court of Texas.
    Oct. 3, 1961.
    Rehearing Denied Nov. 8, 1961.
    Lumpkin, Watson, Dunlap & Smith, Wayne Bagley, Amarillo, for relators.
    Monning & Monning, Amarillo, for respondents.
   HAMILTON, Justice.

This is an original mandamus proceeding by relators, J. E. Johnson, County Judge of Armstrong County, Texas, Armstrong County, Texas, and the State of Texas, seeking to compel the respondent, the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, at Amarillo, to rescind its order granting a writ of mandamus against relator Johnson, directing him to set aside his order granting a new trial in Cause No. 826' in the County Court of Armstrong County, and to enter judgment in said cause in accordance with the jury verdict in favor of the condemnees in said cause. Other respondents named are James G. Denton, Chief Justice of the Court of Civil Appeals of the Seventh Supreme Judicial District of Texas, the Honorable Alton B. Chapman and the Honorable E. O. Northcutt, its Associate Justices, Elmo Payne, its Clerk; and Anna I. Hibbets, Frank J. Hibbets, George H. Moore and his wife, Mary Shaughnessy Moore, Frank Allen Keith and his wife, Frances Shaugh-nessy Keith, Ann Shaughnessy Kelly and James Cope.

This matter involves a condemnation suit in Armstrong County. After the jury had rendered its verdict on special issues in the County Court trial, Armstrong County and the State of Texas, the condemnors and relators here, made a motion for new trial, setting out six grounds of error. During term time the trial court, after hearing the motion, granted the new trial without stating any reason for granting same. Thereafter, on or about October 26, 1960, the condemnee respondents filed application for writ of mandamus in the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, which was granted, and the writ of mandamus was ordered to be issued in its opinion of January 3, 1961, and reported in 342 S.W.2d 642.

This court has jurisdiction to entertain the application for writ of mandamus under Art. 1733, Vernon’s Ann.Texas St., which reads in part as follows:

“The Supreme Court * * * shall have power to issue writs of * * * mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof *

We hold that the Court of Civil Appeals did not have authority to order the writ of mandamus to issue.

It is the general rule, well established, that an appellate court will not review by mandamus an action of the trial court granting a new trial while it still has jurisdiction of the cause. The discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus. Angelina Casualty Co. v. Fisher, Tex.Civ.App., 319 S.W.2d 387; Anchor v. Martin, Tex.Com.App.1927, 116 Tex. 409, 292 S.W. 877; Trevino v. Doughty, 311 S.W .2d 276, San Antonio Court of Civil Appeals, and many other authorities not necessary to list herein.

There are only two instances where any appellate court of this state has ever directed the trial judge to set aside its order granting motion for new trial. These instances are:

(1) When the trial court’s order was wholly void as where it was not entered in the term in which the trial was had; and
(2) Where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting.

Neither of the two situations exists here. The motion for new trial was granted during termtime, and the trial court did not specify on what grounds he was granting the motion for new trial.

The Court of Civil Appeals in granting the writ of mandamus stated in its opinion that the action of the trial court in granting the new trial was an abuse of its discretion and a violation of its clear duty under the law and that there was no adequate remedy of appeal. In support of its opinion that mandamus would lie in such a situation the court cites Stakes et al. v. Rogers, 139 Tex. 650, 165 S.W.2d 81; City of Houston v. Adams, 154 Tex. 448, 279 S. W.2d 308. Both cases were decisions by the Supreme Court and involved matters other than motions for new trial. While under the broad language of Article 1733, V.A. T.S., this court does have the power to correct abuses of discretion in certain lower courts where there is no adequate remedy by appeal, Courts of Civil Appeals have no such power. Crane v. Tunks, Tex., 328 S. W.2d 434. The authority of the Court of Civil Appeals to issue writs of mandamus is limited to that given in Articles 1823 and 1824, V.A.T.S. They may only issue writs necessary to enforce their jurisdiction or to compel a district or county court to proceed to trial and judgment in a cause. Rule 300, Texas Rules of Civil Procedure, provides that where a special verdict is rendered the court shall render judgment thereon unless set aside or a new trial is granted or judgment is rendered notwithstanding the verdict or jury findings under the rules. Since the motion for new trial was granted by the trial court it was not required by the rules to render judgment in the cause, and the Court of Civil Appeals is without authority to so order.

The record in this case shows that the writ of mandamus has not been issued by the Clerk of the Court of Civil Appeals for the Seventh Supreme Judicial District. Assuming that the Court of Civil Appeals will set aside its order directing mandamus to issue, we withhold issuing a writ of mandamus until further order of this court.


author: PER CURIAM.

text:
    Joe O. WILLIAMS, Relator, v. Hon. W. O. MURRAY, Chief Justice, et al., Respondents.
    No. A-8656.
    Supreme Court of Texas.
    Oct. 18, 1961.
    Alfred M. Scott, Charles L. Krueger, Austin, for relator.
    Joe R. Blalack, Longview, for respondents.
   PER CURIAM.

In Williams v. Blalack, Tex.Civ.App., 349 S.W.2d 274, the judgment of the trial court sustaining a plea of privilege was affirmed by the Court of Civil Appeals. Relator, who was appellant in that cause, has now presented to the Supreme Court his motion for leave to file a petition for writ of mandamus to require the Justices of the Court of Civil Appeals to certify questions on the ground that their decision conflicts with the decisions of this Court and other Courts of Civil Appeals.

Article 1821, Vernon’s Ann.Tex. Civ.Stat., was amended in 1953 to provide that nothing therein should deprive the Supreme Court of jurisdiction of any case falling within the terms of either Subdivision 1 or Subdivision 2 of Article 1728, Vernon’s Ann.Tex.Civ.Stat., and which was brought to the Court of Civil Appeals from an appealable judgment of the trial court. If the decision of the Court of Civil Appeals mentioned above does conflict with a prior decision of another Court of Civil Appeals or the Supreme Court as contended by-relator, the Supreme Court has writ of error jurisdiction of the case. See Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706; Hammonds v. Hammonds, 155 Tex. 207, 285 S.W.2d 362; State v. Wynn, 157 Tex. 200, 301 S.W.2d 76. Mandamus will not issue to require certification of questions in a case which can reach us by writ of error. Joseph Zukin of California v. Archer, 150 Tex. 158, 238 S.W.2d 171. The motion for leave to file a petition for writ of mandamus is accordingly overruled.