text:
    CALVERT FIRE INSURANCE COMPANY, Appellant, v. Eddie LITTLE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Albert A. Burchett and G. C. Perry, III, Paintsville, for appellant.
    O. T. Hinton, Pikeville, for appellee.
   CULLEN, Commissioner.

Eddie Little recovered judgment, on a jury verdict, against Calvert Fire Insurance Company, for $4,428.56, on an automobile collision insurance policy, the amount of the verdict being the amount shown by Little’s evidence as being the difference in “before” and “after” market values of a truck owned by Little that was involved in a damaging sequence of events. The recovery was based on the theory that those events constituted a “collision.” The insurance company has appealed, asserting that only a part of the events amounted to a “collision” and that the company is liable only for the damages attributable to that part. The company tendered in circuit court the amount of $1,541.71, being the undisputed estimates of the cost of repairing so much of the damages as the company concedes grew out of a “collision.”

Little was a coal trucker, hauling coal from mine to tipple under contract with the mine owner. For a period of two months he had been hauling coal for one Virgil Bowling, from a mire owned by Bowling. The latter had constructed a dirt road down a mountainside leading from the mine to the highway and the trucks used that road. At one point in the road Bowling had dug a drainage ditch across the road, “to keep water from running down the road and washing it out.” The ditch was made when the road was built. Estimates by several witnesses as to its dimensions varied, hut it appears reasonably clear that this ditch was from 8 to 10 inches deep and from 10 inches to two feet wide.

Little had traveled the road, passing over the ditch, on three or four round trips a day for a period of two months, with no problem. However, on the day in question, shortly after he had passed over the ditch, driving downhill in first or second gear, with a load of 20 tons of coal, his brakes failed and he lost control of the truck. He jumped from the cab to save himself and the truck ran off the road and into a coal tipple. After the accident Little found the right rear double wheels of the truck lying in the road some 40 or 50 feet downhill from the ditch. The housing of the rearmost of the tandem rear axles had broken, causing the wheels to come off. In the process, the brakeline was broken which caused the loss of braking power.

Little’s theory is that the impact to the truck in passing over the drainage ditch was a “collision,” wherefore the insurance company is liable for all of the damages to the truck. The company contests that theory; however, it admits that the striking of the tipple after the truck went off the road was a “collision” and it is willing to pay for so much of the damage to the truck as was caused by that event.

The insurance policy covered damage to the truck caused by “collision of the automobile with another object.” This is standard language but unfortunately not entirely free of ambiguity, since the word “collision” is susceptible of various constructions.

The question of whether contact of an automobile with a rut, ditch, hole or depression in the roadbed is a “collision” has been presented in a number of cases. They are collated and analy2:ed in an annotation in 23 A.L.R.2d 389 @ 410 to 420. A collection of cases on this point also appears under the heading “Collision” in Words and Phrases. An examination of the cases discloses that the courts are not in agreement; in fact, they have taken diametrically opposite views.

Our research and study of the problem have led us to the conclusion that the most reasonable and logical definition of “collision,” applicable in the kind of situation coflfronting us, is that given in Appleman, Insurance Law and Practice, Vol. 5, sec. 3201, p. 341, as follows:

“A ‘collision’ has, therefore, been held to cover all unforeseen, accidental impacts with any kind of an object, usually meaning the sudden contact of a moving body with an obstruction in its line of motion. It means the act of two objects striking together, importing violence in such meeting. Such object with which the automobile collides may be either moving or standing; nor does it matter which of the objects are in motion. Both of them need not be in motion for recovery to be had.”

Inherent in the foregoing definition is the concept of an impact of such force as normally would be calculated to cause damage to the vehicle. We call attention to the words “unforeseen,” “accidental,” “sudden,” and “violence” in the definition.

In the case before us, Little had passed over the ditch with his truck 6 or 8 times a day, for two months, with no incident. On the day in question he was driving slowly, in first or second gear, fully aware of the ditch. The impact with the ditch was not unforeseen, accidental, sudden or violent. It was not such an impact as normally could be calculated to cause damage, as evidenced by the numerous times Little had passed over the ditch without incident. It is our opinion that the impact with the ditch on the day in question cannot reasonably he considered a “collision.”

The judgment is reversed with directions to enter judgment, in accordance with defendant’s motion for judgment n. o. v., denying recovery by the plaintiff for any sum in excess of that tendered by the defendant.

All concur.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Johnny PARKER, Appellant and Cross-Appellee, v. Alton REDDEN, Appellee, and Christine Melton, Appellee and Cross-Appellant.
    Court of Appeals of Kentucky.
    June 23, 1967.
    As Modified on Denial of Rehearings Dec. 15, 1967.

      Earle T. Shoup, Paducah, for appellant and cross-appellee.
    Roy N. Vance, Paducah, for appellee Alton Redden.
    Roy Vance, Henry O. Whitlow, Waller, Threlkeld & Whitlow, Paducah, for appel-lee and cross-appellant Christine Melton.
   CULLEN, Commissioner.

Johnny Parker’s automobile, headed west on a two-lane highway at night, ran into the back of Christine Melton’s automobile which, with a flat tire, was stopped in the west-bound traffic lane. The force of the collision impelled the Melton car forward some 12 feet into the front of the car of Alton Redden, which was stopped, facing east, in the west-bound lane. Redden, who had been engaged in fixing the tire on the Melton car, was caught between his car and the Melton car and sustained serious injuries. Mrs. Melton suffered some personal injuries and her car was damaged slightly. Parker’s car also incurred minor damage.

Redden sued Parker, who then filed a third-party complaint against Mrs. Melton, seeking contribution or indemnity with respect to any recovery that Redden might obtain against him. Mrs. Melton counterclaimed against Parker for her damages, and he in turn counterclaimed against her for his damages.

The trial court dismissed the third-party complaint for contribution or indemnity, on the ground that Mrs. Melton owed no duty to Redden. The rest of the issues were submitted to the jury. The verdict awarded $25,000 to Redden against Parker, and nothing to Mrs. Melton or Parker on their claims against each other, finding both of them negligent. Judgment was entered accordingly. Parker has appealed and Mrs. Melton has cross-appealed.

We shall first consider Parker’s contention that he was entitled to a directed verdict on Redden’s claim against him, on the grounds that (1) Redden was contributor-ily negligent as a matter of law and (2) Parker was as a matter of law not negligent. A brief statement of the facts is necessary.

Mrs. Melton, headed west on the two-lane country road, with several children in her car, around 7:15 p.m. on a day in late April, experienced a flat tire on the left front wheel of her car. She was on a rise from a dip in the road and she proceeded about the length of a city block to the top of the rise, where she brought the car to a stop either entirely or mainly in the west-bound traffic lane (her evidence was that her right wheels were off the pavement, leaving about four feet between the left side of her car and the center line). She testified that there was not room on the shoulder to enable her to pull her car completely off the road. There was a driveway directly across the road from the point where she stopped, but she said she did not see it; also that she had encountered difficulty in steering the car with the flat tire. There was a side road leading off to the right some 50 to 75 feet ahead of her but she said she did not see it or know of it.

Within a few moments Redden came along in his car, from the east, with his wife as a passenger. He stopped and upon being advised of the trouble offered to fix the tire. His wife proceeded on an errand with their car, and he commenced to work on the tire. Mrs. Melton had no jack in her car so he was able only to take off the hub cap and loosen the lugs. However, in a short time Mrs. Redden returned with their car, in which there was a jack. By this time it was dark, so Redden directed his wife to park their car in the west-bound lane, headed east, some 12 feet from the front of the Melton car, so the Redden car’s headlights would furnish light to enable completion of the tire-changing operation. Mrs. Melton testified that the Redden car was so parked that its right headlight was six inches closer to the center line than was the left side of her car, thus making the headlight visible from the rear of her car. Redden remarked to Mrs. Melton that the situation was “dangerous” and he directed her to “flag traffic,” but she remained in the area in front of her car and did not go down the road some distance behind her car where flagging might have been expected to do some good. Redden was aware that she was continuing to remain in front of her car.

Redden had completed the tire change and was lowering the jack when Parker, coming from the east (behind the Melton car), applied the brakes on his car and it commenced to slide straight ahead in the west-bound lane, toward the Melton car. Mrs. Melton screamed and Redden jumped up, ran towards his car and attempted to climb up on the hood. However, he was a fraction of a second too slow and his leg was caught against the bumper of his car when the Melton car was impelled into it by the impact from the Parker car. Mrs. Melton testified that she was bumped to one side by her car.

Parker’s argument that as a matter of law Redden was contributorily negligent, or assumed the risk, rests strongly on Mullins v. Bullens, Ky., 383 S.W.2d 130. There the decedent and several of his companions were standing behind their car stopped on the highway at night, with their backs to traffic, and with their senses perhaps a little dulled with beer, undertaking to put the detached hood of their car into the trunk. The decedent was struck by a car coming from the rear. We held that the decedent was contributorily negligent as a matter of law in standing on the highway “in an obviously perilous place, under the conditions at bar.”

Parker also relies upon Carlisle v. Reeves, Ky., 294 S.W.2d 74. In that case the plaintiff stood on a heavily travelled city street, on a dark, rainy night, behind a truck standing in the street with no lights, with his back to traffic, writing down the license number of the truck. He was struck by a car coming from behind. We held that the plaintiff had as a matter of law assumed the risk (more about that later in this opinion).

Redden, maintaining that the issue of his contributory negligence or assumption of risk properly was submitted to the jury, cites Sweeney v. Schadler, Ky., 259 S.W.2d 680. There the plaintiff was standing behind his car, stopped on the highway in broad daylight, wiping off the rear window of his car. He saw the defendant’s car approaching from the rear and waved to indicate that it was safe to pass on the left. He then turned his back and resumed wiping the window. He was struck by the oncoming car whose driver had not seen him. We held that the question of whether the plaintiff had exercised ordinary care was for the jury, and we cited authority for the proposition that ordinarily the question of whether a traveler “engaged about an automobile in the highway” has exercised reasonable care for his own safety is a jury question.

Redden relies also upon Tate v. Hall, 247 Ky. 843, 57 S.W.2d 986, where the plaintiff, undertaking to change the left rear tire on a truck, at night, was struck by a car coming from the rear. The truck had no lights but the plaintiff and his companion had a flashlight directed at the rear of the truck which this court said “was sufficient to create a signal to one approaching from the rear.” Also, the evidence was that the truck was almost entirely off the road and the plaintiff was standing only two or three feet from the edge of the pavement. This court held that the question of contributory negligence was for the jury.

Obviously the facts in each of the foregoing cases differ in one or more respects from those in the instant case, and perhaps the differences could be seized upon as constituting material distinctions. Before undertaking to evaluate the distinctions, however, we deem it necessary for us to face up to these problems: (1) Is there a difference between assumption of risk and contributory negligence in the kind of situation here presented? (2) If so, are there two kinds of assumption of risk? (3) Which of the various doctrines properly should be applied?

We are disposed to accept Prosser’s analysis of these problems, with which the Restatement is substantially in accord. Our references are from Prosser, Law of Torts, Hornbook Series, Third ed., sec. 67, pp. 450 to 469; and Restatement of the Law, Second, Torts, sec. 466 and secs. 496 A to 496 G.

As applies to the type of situation here involved, Prosser describes the pure assumption of risk doctrine accepted and applied by a number of jurisdictions, which bars recovery by the plaintiff who, aware of a risk already created by the negligence of the defendant, proceeds voluntarily to encounter it. Cf. Restatement, Second, Torts, secs. 496 A, 496 D. The bar is operative without regard to whether the plaintiff’s conduct was reasonable. The theory appears to be that the plaintiff’s acceptance of the risk has wiped out the defendant’s duty, and as to the plaintiff the defendant’s negligent conduct is not a legal wrong.

A second, qualified, doctrine, closer in theory to contributory negligence but still predominately an assumption of risk doctrine in the barring effect it has, requires that the plaintiff’s exposure of himself to the risk be unreasonable, or stated another way, that the risk be unreasonable. Cf. Restatement, Second, Torts, sec. 466. This involves the reasonable man test of contributory negligence but the doctrine differs from contributory negligence in that it may bar the plaintiff where contributory negligence would not, such as in a case where the defendant is grossly negligent-. It may even operate as a bar where the defendant had a last clear chance; see Gover v. Central Vermont R. Co., 96 Vt. 208, 118 A. 874.

Plain contributory negligence, therefore, may have less of a barring effect than does qualified assumption of risk. Also, it does not place emphasis upon, or give any special weight to, the subjective voluntariness of the plaintiff’s conduct.

As seems to be true of the courts of most other jurisdictions, our court has wobbled around in this area, sometimes purporting to recognize a distinction between assumption of risk and contributory negligence and other times saying there is no distinction; sometimes seeming to accept the pure assumption of risk doctrine and other times invoking the requirement of unreasonableness that characterizes the qualified doctrine. It would extend this opinion beyond all reasonable proportions if we were to undertake an analysis or even a simple classification of all of our cases. We think it will be enough merely to discuss a few representative cases, including the four hereinbefore mentioned to which the briefs give special emphasis.

In Morrison & Conklin Const. Co. v. Cooper, Ky., 256 S.W.2d 505, we appear to have applied the pure or strict assumption of risk doctrine, saying that it was immaterial that other reasonable persons might have done what the plaintiff did. In Carlisle v. Reeves, Ky., 294 S.W.2d 74 (one of the cases relied upon by the appellant), the language again indicates an adherence to the pure or strict assumption of risk doctrine. And in Lanzner v. Wentworth, Ky., 315 S.W.2d 622, where a garage employe engaged in changing a tire in daylight, on the left rear wheel of an automobile stopped in the middle of a traffic lane, was struck by an automobile approaching from the rear, we held, citing Carlisle v. Reeves, that as to the owner of the car with the flat tire, who was the only appellant, the employe had assumed the risk because the danger was apparent.

In other cases we have used the term “assumption of risk” but have invoked the requirement of unreasonableness. For example, in Whittaker v. Cole, Ky., 390 S.W.2d 893, we held that the plaintiff was not barred simply by his own admission that he considered the situation dangerous; we applied the rule that intentional exposure to danger, in order to operate as a bar, must be unreasonable. We appear to have been incorrect in stating that under either “test” of assumption of risk the standard is the ordinarily prudent man, and in saying that one of the “tests” is whether an ordinarily prudent man would recognize and appreciate the existence of a substantial risk. This appears to be wrong. The correct view appears to be that under the pure or strict doctrine reasonableness is not involved, and the standard is a purely subjective one. And while under the qualified doctrine the test of unreasonableness may be applied either to the quality of the risk or to the conduct of the plaintiff in exposing himself to the danger, in application to the quality of the risk the issue is whether or not the risk is unreasonable — not whether it is substantial.

It appears that in most of our cases we have chosen to treat voluntary subjection of the plaintiff to a risk as a matter of simple contributory negligence, both in principle and in terminology. So, in three of our four cases hereinbefore mentioned to which the briefs give special emphasis (Mullins v. Bullens, Sweeney v. Schadler, and Tate v. Hall) we treated the issue as being one of contributory negligence.

We are not aware of any Kentucky case in which any distinction in application has been made between qualified assumption of risk (involving unreasonableness) and contributory negligence, as concerns the barring effect of the plaintiff’s conduct. That is, we do not seem to have recognized the possibility that qualified assumption of risk might operate as a bar to recovery even as against gross negligence, whereas contributory negligence would not so operate. So to this extent we have been consistent in saying that assumption of risk and contributory negligence are the same thing. Where we have been inconsistent is in sometimes applying the pure assumption of risk doctrine which does not involve the concept of unreasonableness that is inherent in the contributory negligence doctrine.

One thing to which perhaps we have not given full significance is that the assumption of risk doctrines really are intended to apply only where the negligence that creates the risk has already occurred at the time the plaintiff chooses to subject himself to the risk. The assumption is not of risks from subsequent acts of negligence, but only from acts of negligence already committed. This fact may justify the seeming harshness of the pure assumption of risk doctrine, and the complete barring effect of the qualified doctrine. In the three cases hereinbefore discussed in which we seem to have applied the pure doctrine (Morrison & Conklin Const. Co. v. Cooper, Carlisle v. Reeves, and Lanzner v. Wentworth) it probably is significant, although not so stated in the opinions, that the risk assumed was of negligent acts already committed by the person against whom recovery was sought.

We have reached the point in this discussion where we must say what we are going to do about assumption of risk. The answer is that we are going to abolish it. First, we think that the pure assumption of risk doctrine, under which the plaintiff is barred even though he acted reasonably, should no longer be recognized or applied, because reasonableness of conduct should be the basic consideration in all negligence cases. So we think that in the instant case Redden’s admitted awareness of the risk does not ipso facto bar his recovery; the controlling question is whether he acted reasonably. Second, it is our opinion that the distinctions (hereinbefore mentioned) between qualified assumption of risk and contributory negligence are not significant enough to warrant retaining assumption of risk as a separate doctrine. The main distinction is that assumption of risk may operate as a bar to recovery in certain situations where in pure application contributory negligence would not effect a bar. We think this problem can be handled simply by making minor adjustments in our contributory negligence doctrine. For example, if the defendant is guilty of gross negligence the plaintiff who is aware of such negligence and exposes himself to the resulting risk may be held to be barred from recovery on the ground that his contributory negligence is of equal (gross) rank with the negligence of the defendant.

A fear might exist that the abolishing of the pure or strict assumption of risk doctrine might have the result of permitting a plaintiff to recover where no concept of fault would warrant his recovery, in a situation where the defendant’s already-committed negligent acts of which the plaintiff is aware have created a risk also of which the plaintiff is aware. Our answer is that if there was no substantial necessity or urgency for the plaintiff’s subjecting himself to the risk, or if the risk was one that easily could have been eliminated before the plaintiff took action, the plaintiff who took the risk must be considered as a matter of law to have acted unreasonably and he will not recover. On the other hand, if there was an urgent necessity for the plaintiff to incur the risk, such as to save a life, and if the risk could not easily have been eliminated, there is no reason why the damage suffered by the plaintiff should be borne by him rather than by the defendant who negligently created the risk. We think any problem can be eliminated by weighing reasonableness in the light of the necessity or urgency for the action and the difficulty of removing the risk before acting, keeping in mind that a person’s appreciation of danger may be affected in what appears to him to be an emergency situation. In this connection see Restatement, Torts, Second, sec. 466, Comments, pp. 512 to 514, sec. 472, pp. 521, 522; Prosser, Law of Torts, Hornbook Series, 3rd ed., sec. 67, pp. 450, 451.

We having decided to abolish assumption of risk in this jurisdiction, it naturally follows that the question of whether Redden should be barred from recovery in the instant case is one of contributory negligence — failure to observe the standard of care of the ordinarily prudent man (or a statutory standard of care). This was the issue submitted to the jury. Our question now is whether Redden should have been held contributorily negligent as a matter of law. In considering that question we shall at first disregard the fact that Redden’s car was stopped on the highway in plain violation of the statute, KRS 189.450. Later we shall discuss the effect of that violation.

As stated in Sweeney v. Schadler, Ky., 259 S.W.2d 680, the question of whether a traveler “engaged about an automobile in the highway” has exercised reasonable care for his own safety ordinarily is a jury question. However, in some factual situations the answer to the question is so beyond difference of opinion as to make the determination a matter of law. Such were the situations in Mullins v. Bullens, Ky., 383 S.W.2d 130, and Carlisle v. Reeves, Ky., 294 S.W.2d 74, in each of which cases the plaintiff was held contributorily negligent as a matter of law. Parker maintains that the situation in the instant case is in the same category. He points to the facts that it was night; Mrs. Melton’s car was stopped substantially occupying the west-bound traffic lane on the crest of a rise approaching which there were no-passing lines; Redden did not keep a lookout for his own safety and although he asked Mrs. Melton to keep a lookout and flag oncoming traffic he knew she was not in a position to do so effectively; and there was a driveway directly across the road from the Melton car into which he could have driven the car before working on the tire.

The facts so pointed to by Parker make the case a close one, but a majority of our court is not convinced that the facts show Redden’s conduct to be so obviously unreasonable as to convict him of contributory negligence as a matter of law. The facts in Mullins v. Bullens were a little more aggravated in that there the plaintiff had his back to traffic, he was somewhat under the influence of beer. Similarily, in Carlisle v. Reeves, there were especially dangerous conditions in that the plaintiff was standing with his back to traffic, on a heavily travelled street, on a dark, rainy night, behind a truck with no lights.

While the distinctions just discussed may make a distinguishable difference between the instant case and the Mullins and Carlisle cases, we think there is another distinguishing factor which is simply that in the instant case Redden had a more justifiable reason for subjecting himself to the danger. He was a Good Samaritan aiding a lady in distress, whereas in the Mullins and Carlisle cases there was no real urgency in the situations. As hereinbefore mentioned, in determining whether a person has acted reasonably consideration should be given to the degree of necessity or urgency for the action (and to the degree of effort or attention that would have been required to remove the danger. Also consideration should be given to the fact an appearance of emergency may affect a person’s appreciation of danger.

It is our conclusion that the question of whether Redden failed to act as a reasonably prudent man in placing himself in a position of danger was a jury question.

This brings us to a consideration of the effect to be given to the fact that Redden’s car was parked on the highway in violation of the statute. Clearly, this violation was not a cause of the accident. The accident consisted of the collision between Parker’s car and the Melton car, resulting in the latter car’s being impelled against Redden. At the most, the position of Redden’s car might have contributed to his injuries. Cf. Bentzler v. Braun, Wis., 149 N.W.2d 626. But we do not believe it could be held as a matter of law that the position of the Redden car was such a substantial factor in causing the injuries as to require denial of recovery for the injuries.

Parker suggests that since the jury found Mrs. Melton negligent on the apparent ground that her car was stopped on the highway in violation of the statute, KRS 189.450, Redden necessarily must be held negligent also, since he “stepped into her shoes.” We think the answer to this is that Redden did not violate the statute with respect to Mrs. Melton’s car, so he is not chargeable with statutory negligence. And he can be found guilty of common law negligence only if he failed to act as an ordinarily prudent man. A person who is engaged in work or activity around an illegally parked car is not automatically negligent simply because the car is parked in violation of the statute. See Sweeney v. Schadler, Ky., 259 S.W.2d 680; Tate v. Hall, 247 Ky. 843, 57 S.W.2d 986; Lanzner v. Wentworth, Ky., 315 S.W.2d 622.

Our net conclusion on this phase of the case is, then, that the question of Redden’s contributory negligence properly was submitted to the jury.

Parker’s next contention is that as a matter of law he should have been held not negligent. We find no merit in this contention. There was evidence that the taillights and the left-turn signal on the back of Mrs. Melton’s car were illuminated; that the headlights and right-turn signal on Redden’s car were on and that the right headlight and turn signal were visible from behind the Melton car; and that there was no oncoming traffic to obscure Parker’s vision. A motorist traveling behind Parker’s car testified that he saw the lights at the point where the Melton car was stopped when he was some 1,000 feet away. Parker’s lights should have revealed objects ahead of him for a distance of 350 feet. KRS 189.040. His normal stopping distance at a speed of 50 miles per hour, which he claims was his maximum speed, would have been 186 feet, including “thinking distance” or reaction time. This means that if it took him 150 feet, or two full seconds, after he first should have seen the Melton car, to realize that it was stopped and that the flashing turn signal and other lights at the scene meant that an abnormal condition existed, he still should have had time to stop. It is our opinion that the evidence presented a jury question as to Parker’s negligence.

We come now to the various issues presented on the claims between Parker and Mrs. Melton.

Parker maintains that Mrs. Melton should have been held negligent as a matter of law on his claim against her for damages and on her claim against him. Since the jury found her negligent, and since the issue of her negligence is not to be retried, the claimed error is immaterial.

Parker also argues that he should have had a directed verdict of liability on his claim for damages against Mrs. Melton, but this argument cannot be upheld because, as hereinbefore decided, there was a jury question as to Parker’s negligence.

We come now to the question of contribution. As stated at the outset of this opinion, the trial court dismissed Parker’s third-party complaint against Mrs. Melton for contribution as to any recovery by Redden, on the ground that Mrs. Melton owed no duty to Redden. We think this was error. The no-duty concept is simply a different expression of the pure or strict assumption of risk doctrine. See Prosser, Law of Torts, Hornbook Series, 3rd Ed., sec. 67, pp. 450 to 456. Since we are abolishing the latter doctrine the no-duty concept goes too. As we see it, the negligence of which the jury found Mrs. Melton guilty, i.e., illegally leaving her car standing on the main travelled portion of the highway, was negligence (a violation of duty) as to anyone who might reasonably have been foreseen to come within the field of danger created by the negligence. Surely if a valuable horse standing in a field along the road had been struck by Parker’s car as a result of its caroming off the Melton car, Mrs. Melton would not have been exonerated from liability to the owner of the horse simply on the theory that she was not negligent as to the latter or owed no duty to the latter. She having been found guilty of negligence, the only bases upon which Mrs. Melton could be exonerated from liability to Redden are (1) that Redden was contributorily negligent or (2) that Mrs. Melton’s negligence was not a proximate cause of the accident.

As concerns the contributory negligence question we think that properly there should be no difference in its application to Mrs. Melton from its application to Parker. If Redden were found contributorily negligent it would be because he acted unreasonably in the circumstances that prevailed, and if so he would be barred from recovery against Parker the same as against Mrs. Melton. So, in the instant case, since the jury in effect found that Redden was not contributorily negligent, that possible ground of exoneration of Mrs. Melton was eliminated from the case.

That leaves the question of causation. It has been argued that Mrs. Melton’s negligence merely created a condition and did not constitute a cause. We believe the argument is not valid. Our cases quite clearly establish the proposition that if the consequences that grow out of a negligently created “condition” are natural and probable (foreseeable), the fact that negligent conduct of another person is involved does not exonerate from liability the person who negligently created the condition — his negligence is a concurring cause. See Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137; United Fuel Gas Company v. Thacker, Ky., 372 S.W.2d 784; Roberts v. Taylor, Ky., 339 S.W.2d 653; Lexington Glass Company v. Zurich General Acc. & L. Ins. Co., Ky., 271 S.W.2d 909; Bosshammer v. Lawton, Ky., 237 S.W.2d 520. The latter two cases just cited involved illegally parked cars, and in each the negligence in leaving the car illegally parked was held to be a concurring cause of an accident which resulted from subsequent actions of a moving car. The principle involved here is simply the basic principle of the law of intervening or superseding causes — that the original negligent actor is not relieved of liability by the subsequent negligent acts of another if the subsequent acts might reasonably have been foreseen. See Ambrosius Industries, Inc. v. Adams, Ky., 293 S.W.2d 230; Mackey v. Spradlin, Ky., 397 S.W.2d 33.

While on this subject we should dispose of the question of what effect a finding of last clear chance on Parker’s part might have on Mrs. Melton’s potential liability to Redden. (As hereinafter will appear, we are directing that a new trial be had of Mrs. Melton’s claim against Parker, solely on the last clear chance issue.) It is our opinion that the matter of last clear chance as between Parker and Mrs. Melton should have no bearing on the question of their respective liabilities to Redden. There is respectable authority for that view. See Tarleton-Gaspard v. Malochee, 16 La.App. 527, 133 So. 409. We think that the basic principle of foreseeability should govern— if the fact that an automobile might negligently run into the parked Melton car was foreseeable (and we think it clearly was), Mrs. Melton should not be exonerated from liability to Redden merely because of the particular legal category of negligence of which the driver of the other car was guilty-

So, thus far in this opinion, as respects the issue of contribution, we have said (and held) that if Mrs. Melton was negligent in this case she was negligent as to Redden the same as to Parker; that if Redden was not contributorily negligent as to Parker he was not as to Mrs. Melton; and that if Mrs. Melton was negligent her negligence was a concurring cause of the accident. Now the fact is that on Mrs. Melton’s claim against Parker the jury found Mrs. Melton guilty of negligence that contributed to the accident. And on Redden’s claim against Parker the jury found that Redden was not contributorily negligent. Accordingly, the complete basis for liability of Mrs. Melton (concurrently with Parker) to Redden has been established. Of course Redden did not sue Mrs. Melton, and of course the jury has not specifically found that Mrs. Melton is liable to Redden, which liability is a condition of recovery of contribution from her. See Employers Mut. Liability Ins. Co. of Wis. v. Griffin Construction Co., Ky., 280 S.W.2d 179, 53 A.L. R.2d 967; Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137. It seems to us, however, that where, as here, the jury has found all of the facts essential to liability of the person against whom contribution is sought, and a specific finding of such liability would have been a mere formality, the court should be empowered to adjudicate liability for contribution (present the necessary pleadings and absent only the formal jury finding). As a matter of fact, trial complications might well be avoided in a case such as this one, where the plaintiff is seeking recovery from only one defendant but he has brought in another party and they have asserted cross-claims for damages against each other, if the trial court would reserve the question of contribution as a matter of law to be determined by the court after the verdict is in.

It is our conclusion on the contribution question that the trial court erred in dismissing the third-party complaint in which contribution was sought, and that under the circumstances the court should have entered judgment declaring Parker’s right to contribution from Mrs. Melton. We are reversing the judgment on Parker’s appeal to that extent, with directions that judgment be entered declaring the right to contribution. In this connection we should mention that a strong argument has been made that a claim for contribution cannot be asserted or adjudicated until the party seeking contribution has paid the common liability. That argument was rejected by this court a few weeks ago, in Jackson & Church Division, York-Shipley, Inc. v. Miller, Ky., 414 S.W.2d 893 (decided May 5, 1967) and that decision prevails. We see no reason why an adjudication of liability, similar to a declaration of rights, cannot be made before the right has fully matured through payment. Of course the judgment should be that the party claiming contribution is entitled to recovery of any sums that may be paid by him in excess of his pro rata share of the liability. (Any dispute thereafter arising as to whether a claimed payment actually was made could be disposed of in supplementary proceedings.)

Up to this point we have disposed of all of the contentions of the appellant Parker except some minor ones relating to evidence and instructions. We shall consider them briefly.

A complaint is made with reference to a question and answer as to an estimate of Parker’s speed (65 m. p. h.) which was entered in a state trooper’s written report of the accident. However the court sustained an objection and ruled that what was contained in the report was not admissible. Counsel did not ask for any other relief. If further relief was desired, such as an admonition, it should have been requested.

Error is claimed in the refusal of the trial court to permit Parker to introduce charts showing normal stopping distances at different speeds. The argument is made that somehow this evidence might have counteracted inferences from the length of Parker’s skid marks (95 feet) that he was traveling at an excessive rate of speed. We are not convinced. The fact that at a reasonable speed it might have taken Parker 150 feet in which to bring his car to a normal stop really has no relevancy to the question of whether the skidding of a car for 95 feet, terminated by its striking another car, is indicative of high speed. Furthermore, the probability of prejudice from exclusion of the evidence is diminished by the consideration of the fact that had the evidence been admitted the jury might well have asked themselves why Parker did not stop in the normal stopping distance, which was considerably less than the required range of his headlights.

It is contended that error was committed in regard to the refusal of the court to admit in evidence a state trooper’s diagram showing the positions of the respective cars after the accident. The diagram showed the Melton and Redden cars entirely on the pavement, whereas the trooper had testified that part of the Redden automobile was off the pavement. We think it is immaterial whether the car was wholly on the pavement or whether, as the trooper testified, “the whole car was pretty well on the road.” In either event it was substantially blocking the west-bound lane, which is all that is significant.

Another contention is that the trial court erred in rejecting certain instructions proposed by Parker which would have detailed specific (nonstatutory) duties of Redden. The court’s ruling was based on the view that the enumerated duties were embraced in the general duty imposed upon Redden to exercise ordinary care for his own safety. The court was correct in this view. See Liberty National Bank & Trust Co. v. Raines, Ky., 416 S.W.2d 719 (decided May 12, 1967); Farmer v. Pearl, Ky., 415 S.W. 2d 358 (decided May 12, 1967).

Complaint is made of the refusal of the trial court to instruct on the statutory duty of Mrs. Melton in respect to the kind of taillights to be maintained on her car. If this was error no harm was done because, the jury found Mrs. Melton negligent and because, as hereinbefore discussed, Redden was not chargeable with any of Mrs. Melton’s statute violations.

It is argued that the court should have given instructions requested by Parker on unavoidable accident and sudden emergency. This argument is not sustainable for the reasons given in Mullins v. Bullens, Ky., 383 S.W.2d 130, and Sloan v. Iverson, Ky., 385 S.W.2d 178.

The instruction with respect to Parker’s duties if blinded by oncoming lights is claimed to be erroneous. The instruction technically was erroneous, for the reasons stated in Duncan v. Wiseman Baking Company, Ky., 357 S.W.2d 694, and because it imposed on Parker the duty to take such precautions as the jury believed were necessary under the circumstances, instead of requiring him to observe the standard of the ordinarily prudent man. However, we are of the opinion that the errors were not prejudicial, because the car with the alleged blinding lights had passed by Parker when he was still 500 feet from the Melton car so they could not have been a significant factor in the accident. At the most the lights could have prevented Parker’s seeing the Melton car when he was still more than 500 feet away. They furnished no excuse for his failure to see the Melton car and become aware of its stopped position after he came within the 500 to 200 foot range.

Finally, complaint is made with respect to the trial court’s statements and directions to the jurors after they first had brought in an incomplete verdict. The complaint is that the directions were not sufficiently clear to advise the jury that in completing the verdict they could reconsider the decision they had reached in the partial verdict. (The jury had found for Redden against Parker, but had not made any finding on the damage claims between Parker and Mrs. Melton. The court told the jury that the verdict for Redden against Parker had not been accepted and was still open to consideration by them. This statement followed an objection by Parker to a previous statement in which the court had told the jury that since they had found Parker negligent they could not consistently find for him on his claim against Mrs. Melton.) We think the directions were reasonably clear.

We now have disposed of all of the issues raised on Parker’s appeal. This brings us to Mrs. Melton’s cross-appeal, which presents only the single contention that error prejudicial to her claim against Parker was committed by the court in refusing to give a last clear chance instruction.

It is the view of the majority of this court that as concerns the issue of last clear chance the facts of this case are not distinguishable from those in Mullins v. Bullens, Ky., 383 S.W.2d 130, where the plaintiff was held entitled to a last clear chance instruction. It is true that Mrs. Melton was undertaking to maintain a lookout for oncoming traffic and was not inattentively occupying the highway, so her chance to avoid personal injury continued more nearly to the moment of collision than ordinarily is the case in a motorist-pedestrian situation. However, she testified that she did not realize that Parker was not going to avoid a collision by passing in the left lane until his car was so close that she had no opportunity left to escape the danger area. The jury could believe that this was true and that Mrs. Melton should not reasonably have sooner realized the peril. Thus the jury could find that Parker still had a clear chance after Mrs. Melton’s chance was gone.

It is our view (as in Mullins v. Bullens) that a retrial, limited to the issues of last clear chance and damages, should be had on Mrs. Melton’s claim for damages against Parker. On a fair trial a jury has found him negligent and her contributorily negligent. There is no need to retry those issues.

On the direct appeal the judgment is affirmed except to the extent that it dismisses Parker’s claim against Mrs. Melton for contribution; to that extent it is reversed with directions to enter judgment declaring Parker’s right to recover from Mrs. Melton any sum paid by him to Redden on the judgment in favor of Redden in excess of half of the amount of the judgment. On the cross-appeal the judgment is reversed with directions to hold a retrial of Mrs. Melton’s claim for damages against Parker solely on the issues of last clear chance and damages.

WILLIAMS, C. J., and MILLIKEN, OSBORNE and PALMORE, JJ., concur. HILL, MONTGOMERY and STEIN-FELD dissent on the ground that REDDEN should be held contributorily negligent as a matter of law.

      . This contemplates, of course, that if both parties are found to be negligent no rating of their respective degrees of fault will be made, and they will be considered to have a joint and equal liability (upon which each may require the other to pay one-half by way of contribution), as distinguished from the several and unequal liability which a jury may fix when the plaintiff has sued both tortfeasors (upon which liability there is no contribution, as pointed out in Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137). See KRS 454.040 and Baldwin v. Wiggins, Ky., 289 S.W.2d 729. We reserve for a future time the question, not raised by the parties to this case, whether on a claim for contribution (in a situation in which the plaintiff has not sued both tort-feasors in one action) a jury should be allowed to determine that the liability of the tortfeasors, as between themselves, is several and unequal so as to preclude contribution. Cf. Brown Hotel Company v. Pittsburg Coal Company, 311 Ky. 396, 224 S.W.2d 165, dealing with indemnity.


author: STEINFELD, Judge.

text:
    Mary Frances RODGERS et al., Appellants, v. Billy Todd CHESHIRE, Executor of the Will of Ora Cheser, Deceased et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    As Modified on Denial of Rehearing Dec. 15, 1967.

      E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, for appellants.
    Marion Rider, Billy Todd Cheshire, Allen Prewitt, Richard A. Prewitt, Prew-itt & Prewitt, Frankfort, for appellees.
   STEINFELD, Judge.

Mary Frances Rodgers, niece of the decedent, and Mary’s husband sued to contest the instrument probated as the last will of Ora Cheser. They claim that the testatrix lacked the necssary mental capacity to make a will and that if she had testamentary capacity she acted under undue influence. The jury found “in favor of the defendants” whereupon the court “adjudged that the writing dated March 6, 1964, * * * is the last will and testament of Mrs. Ora Cheser, deceased.” The contestants have appealed. We affirm.

Mrs. Cheser who could neither read, write, count money, nor dial a telephone and who had been in extremely poor health for many years, left an estate in excess of $50,000.00 when she died on March 20, 1964, at the age of 78. She had outlived four husbands. From her second husband, who died in 1931, she inherited several parcels of rental property which she managed, and from time to time sold pieces at a profit. Her last spouse died in 1958. She was childless, had no brothers, and only two sisters, both of whom predeceased her by many years. One sister had one child, appellant, Mary Frances Rodgers. The other sister had many children. They, and the respective spouses of the married ones, were made defendants below and appellees here.

Mrs. Cheser had spent numerous periods in nursing homes and had returned to her own residence after each stay. For many years she had received assistance from friends, relatives and her attorney in business and personal matters and she had enjoyed the company and help from family and friends during periods of illness.

In 1958 Mrs. Cheser made a will by which she left $300.00 to her friend, Myrtle Robertson; $4,000.00 to her niece, appellant, Mary Frances Rodgers, and the residue to her lifelong friend and sister-in-law, Mattie Barbour. Mrs. Barbour was the sister of the man Mrs. Cheser married in 1906. This will was lodged with the county clerk for safekeeping. KRS 394.110.

Mrs. Cheser wrote another will in 1962 by which she directed that $300.00 go to Myrtle Robertson and $3,000.00 to Mary Frances Rodgers. She provided that the remainder be held in trust for Mattie Barbour for her lifetime and then it was to go, share and share alike, to those of Mrs. Cheser’s nieces and nephews who survived Mrs. Barbour. This will was left with the county clerk.

On November 12, 1963, Mrs. Cheser asked her attorney whether she could tear up the 1962 will and thereby reinstate the 1958 will which had not been destroyed. Believing that the law permitted this, her attorney so advised her and watched her destroy the 1962 will. He then returned the 1958 will to the county clerk to be kept by him. All parties to this litigation agreed that the advice given by .the .attorney was erroneous and that having destroyed the 1962 will Mrs. Cheser was then without a will.

In the latter part of February 1964 or the first part of March 1964 Mrs. Cheser sent word to her regular attorney that she wanted to see him for the purpose of writing a new will. He was unable to come, whereupon Mrs. Cheser asked an acquaintance to get her a lawyer who could write a will for her. Mr. Billy Todd Cheshire, a lawyer, was requested to come to the residence which he did on the morning of March 6,1964. After discussing the matter with Mrs. Cheser and ascertaining what she wanted he returned to his office, prepared the instrument in controversy, and returned to the residence with his secretary where and when it was executed by Mrs. Cheser.

After directing payment of debts and funeral expenses she gave all of her property “to Lucille Cornman, Mary Frances Rogers, Marie Thompson, Vera Lee Perkins and Ida Belle Metts, equally, share and share alike, absolutely and in fee simple” and she named Mr. Cheshire as executor. Three of the beneficiaries were nieces of Mrs. Cheser and the other two were practical nurses who had served her.

The will was probated in the Franklin County Court after which its validity was contested only by Mr. and Mrs. Rodgers. They claim that the trial court erred in permitting counsel for the pro-pounders to badger witness Mattie Barbour on an immaterial matter in an effort to discredit her material testimony. They say that this was reversible error and cite Gunterman v. Cleaver, 204 Ky. 62, 263 S.W. 683 (1924). The interrogation complained of was during cross examination and was an effort to show such bias or interest as might affect Mrs. Barbour’s credibility. Lexington Glass Co. v. Zurich General Acc. & Liability Ins. Co., Ky., 271 S.W.2d 909 (1954). We have carefully examined the transcript showing the proceedings while Mrs. Barbour was testifying to see if complaint was made that the witness was being mistreated and if there was badgering. We found no mistreatment of the witness. The only objections by counsel for appellants was with respect to the competency of the subject of one question, and that one specific question was asked three or four times. The objections were unrelated to “badgering the witness”, therefore, a waiver of that complaint occurred. River Queen Coal Co. v. Mencer, Ky., 379 S.W.2d 461 (1964).

The next claim of error is that the court refused to allow counsel for the contestants to base a question propounded to the decedent’s physician upon the testimony of another witness. Counsel undertook to relate to a physician the testimony of a minister who described Mrs. Cheser’s appearance when he saw her on March 6, 1964. The transcript shows the following:

“Q. 80 That was just about it. Now Doctor, suppose you were told or suppose you knew that Brother Lyons had testified under oath sitting where you are now—
MR. PREWITT: Objection to him telling one witness what somebody else testified.
BY THE COURT: Sustained.”

No request was then made for permission to complete the question out of the hearing of the jury. No-avowal was put into the record. We are not now in a position to say that the contestants were prejudiced by the ruling of the court. There had been a separation of witnesses. CR 43.09. The trial judge is vested with reasonable discretion in controlling the examination of witnesses. He did not exceed his authority. Stout v. Commonwealth, (1906), 123 Ky. 184, 94 S.W. 15, 13 Ann.Cases 547. After the objection was sustained no further questions were propounded to the doctor. We find no merit in this claim for reversal.

The next issue is the claim that the court erred in permitting counsel for the proponents to argue on the basis of his personal experience outside the record. Cited are: Louisville & N. R. Co. v. Hull, 113 Ky. 561, 68 S.W. 433, 57 L.R.A. 771 (1902); Louisville & N. R. Co. v. Carter, 27 Ky.Law Rep. 748, 86 S.W. 685 (1905); Weil v. Hagan, 161 Ky. 292, 170 S.W. 618 (1914); Gunterman v. Cleaver, supra; Whitney v. Penick, 281 Ky. 474, 136 S.W.2d 570 (1940). In each of these cases the complaining counsel objected to the statement and obtained a ruling of the court. It is true that in Gunterman v. Cleaver, supra, we said: “It is the duty of the presiding judges of circuit courts, in jury trials, upon their own motion to interfere in such cases and to stop such argument. This is due to truth and justice. If counsel persevere in arguing upon facts not before the jury, or appealing to prejudices foreign to the case, exceptions may be taken by the other side, which may be good grounds for a new trial or for a reversal in this court.” The Gunterman case was a case of persistent misconduct. Our recent cases make it clear that in the situation now before us counsel cannot remain silent and then rely upon the claim that the argument was improper. Greathouse, et al. v. Mitchell, Ky., 249 S.W.2d 738 (1952) wherein we said: “An objection to the remarks and conduct of counsel must be made at the time and a ruling had thereon, else they cannot be considered on appeal.” Wagner v. Emmett, Ky., 280 S.W.2d 210 (1955); River Queen Coal Co. v. Mencer, supra. Since counsel for the contestants did not object to the alleged improper argument, and did not move the trial court to admonish the jury not to consider the remarks and sought no ruling at the time we will not consider this claim. Prichard v. Kitchen, Ky., 242 S.W.2d 988 (1951); Louisville & Jeff. County Metro. Sewer Dist. v. Kirk, Ky., 390 S.W.2d 182 (1965).

It is also contended that the court erred in permitting counsel for proponents to make a crucial misstatement of facts in his closing argument. The basis for this claim is the following:

“Here she has two fine doctors waited on Mrs. Cheser for I think they said two or three years, had seen Mrs. Cheser before her death some forty times, more than forty, forty-one or forty-two times, men qualified, fine doctors, talked to her, treated her, and they told you that on March 6 Mrs. Cheser had the mentality to make a will. What is the answer to that? Are they liars? Are they frauds? Are they telling you the truth? Any reason for them not to be telling you the truth?
Mr. Davis: If Your Honor please, I would like to interpose an objection, it was not so testified as to March 6.
By The Court: Overruled.
You heard them tell you she had the power to make the will. You heard one of them tell you he had been there in her home on March 5th, the evening before, you heard him tell you that he was back on March 9th. Gentlemen, it is up to you. What can you say to that? What can you say? Would you disbelieve she had the mental capacity to make a will?”

The doctors testified that they saw Mrs. Cheser on eleven different dates beginning February 29, 1964, and ending on March 20, 1964. They stated the specific days when they were with her. One of these dates was March 5th. One physician was asked and answered as follows:

“Q. 40 Now while she was home during this period of February 15, 1964, until you sent her to the hospital on March 16th state whether or not in your opinion Mrs. Ora Cheser had sufficient mind and memory to know the character and extent of her property, the natural objects of her bounty and her duty to them, if any, and to dispose of her property according to a fixed purpose of her own ?
A. When I saw her at home I thought she did.”

Counsel has wide latitude in arguing to jury. Arnett v. Dalton, Ky., 257 S.W.2d 585 (1953). The argument quoted is fairly deducible from the evidence. We find nothing improper in the argument. Wells v. King, 219 Ky. 201, 292 S.W. 777 (1927).

The remaining contention is that the verdict was flagrantly against the evidence. In support of that argument appellants cite Golladay v. Golladay, Ky., 287 S.W.2d 904 (1955). It seems unnecessary for us to summarize the testimony of the many witnesses who appeared before the trial court. The physicians gave opinions and they and others testified to facts upon which the jury was authorized to find that Mrs. Cheser had the capacity to make a will and that she was not unduly influenced. The jury heard the attorney who prepared the will, his secretary and others. The verdict was supported by competent evidence of substance and probative character, therefore, we cannot disturb it. Creech v. Miniard, Ky., 408 S.W.2d 432 (1966).

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Clay GAY, Appellant, v. Betty Pace GAY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 1, 1967.
    Robert C. Muncy, Hyden, for appellant.
    J. K. Beasley, Harlan, for appellee.
   OSBORNE, Judge.

On March 13, 1965, appellant and appellee entered into a property settlement agreement which was included in a stipulation as to the custody of their two children, Cecelia Ann Gay, them age 19 months and Dwight David Gay, then age S months. This agreement was incorporated in the judgment of the Harlan Circuit Court in a divorce proceeding between the parties. Under the agreement and the judgment, appellant was required to pay the sum of $250 as support each month beginning on April 15, 1965, and a like sum monthly thereafter. As is customary with such orders, this one provided that it was subject to change by the court upon a showing of a change in conditions. Appellee made the $250 payment for the month of April, 1965, but thereafter fell short. In May, he paid $150, in June nothing, July $100, August $200, September $110, October nothing, November nothing, December nothing, and as of October 31 is $940 in arrears. Appellee filed a motion to show cause. The trial court found the facts as above stated; held appellant to be in contempt and directed that he purge himself by making the payments or be committed to jail. The case is now before us upon an appeal from this order.

Appellant contends that he did not understand at the time the agreement was made that the payments would have to be kept current. He further asserts that the payments are now excessive and asked the court for a reduction basing his argument upon the fact that his wife is now employed as a school teacher. The trial court overruled the motion for modification citing as authority Richey v. Richey, Ky., 389 S.W.2d 914. We believe this action was proper. We, like the trial court, are not convinced that appellant did not understand the agreement. He is a school teacher, has served in the legislature and makes his residence with a circuit judge. With this background, we believe he understood the obligations that he was placing upon himself when he signed the property settlement agreement. In any event, this is a matter which addresses itself to the sound discretion of the trial court and when that discretion is not abused the court’s findings will not be disturbed. Somerville v. Somerville, Ky., 339 S.W.2d 940. The primary obligation for support of children is upon the father arid this fact is not changed irrespective of the mother’s income. Ward v. Ward, 213 Ky. 606, 281 S.W. 801; Gamblin v. Gamblin, Ky., 354 S.W.2d 504.

The judgment is affirmed.

All concur.


author: GRIFFIN, Justice. NORVELL, Justice.

text:
    Atley SHERMAN et ux., Petitioners, v. PROVIDENT AMERICAN INSURANCE COMPANY, Respondent.
    No. A-11604.
    Supreme Court of Texas.
    June 28, 1967.
    Alvin E. Wiggins and Daylee Wiggins, Beaumont, for petitioners.
    Kelsoe & Stone, G. H. Kelsoe, Jr., and Robert M. Kennedy, Dallas, King, Sharf-stein & Rienstra, Dale Dowell, Beaumont, for respondent.
   GRIFFIN, Justice.

In this cause petitioners, Sherman and wife, filed a suit in the County Court at law, Jefferson County, Texas, against respondent Insurance Company, as defendant, to recover hospital and clinical service benefits in the sum of $216.00 plus $100.00' attorney’s fee and 12% penalty. The defendant answered, pleading certain exclusions and limitations contained in the policy which relieved defendant of liability. At the close of the plaintiffs’ testimony the trial court granted defendant’s motion for an instructed verdict, and upon the return of such verdict, the trial court rendered judgment for the defendant. On appeal to the Court of Civil Appeals the trial court’s judgment was affirmed. 404 S.W.2d 340.

In order to give this Court jurisdiction of this case a conflict is alleged to exist between the holding of the Court of Civil Appeals in the case at bar that under the record herein the burden of proof was on the plaintiffs to negate the pleaded exclusions and limitations and the contrary holding in the case of Old Line Mutual Life Insurance Company v. Tilger, 264 S.W.2d 557 (Tex.Civ.App., 1953), no writ history. We recognize that such a conflict does exist.

At the time this Court granted this application for writ of error, it was thought we would be able to pass upon the sufficiency of the defendant’s pleading of the exclusions and limitations contained in the policy.

Various law professors have filed herein amicus curiae briefs in which it is asserted that the pleadings of defendant contained in his paragraph 4 were not sufficient under Rule 94, Texas Rules of Civil Procedure, to place the burden of proof upon plaintiffs to negate the exclusions and limitations of the policy. Defendant specifically pleaded in defense to the plaintiffs’ suit, “the following provisions, exclusions and limitations contained in the said policy, to-wit: (a) the provisions, limitations and exclusions contained in the insuring clause of said policy.” There are sub-heads (b) through (i) of similar pleadings in paragraph 4.

Many of the policy exceptions pleaded by respondent and included in its motion as grounds for an instructed verdict were obviously sham defenses. To seek in this manner to frustrate the intended purpose of Rule 94 violates both its spirit and its letter; but we know of no authority, either of rule of procedure or of decided case, which authorizes this Court to reverse the judgment of the trial court because it failed in the absence of motion or exception, to strike or disregard the sham defenses, particularly since petitioners have made no complaint thereof on appeal.

Plaintiffs in their motion for rehearing, filed on our original action passing on their application for writ of error, adopted the attack made on defendant’s pleading and as contained in the amicus curiae briefs. Prior to the time plaintiffs filed their motion for rehearing they had made no attack on the pleadings contained in defendant’s answer either in the trial court or the two appellate courts. An examination of the Statement of Facts shows that plaintiffs recognized that the pleadings of defendant in paragraph 4 were of a general nature, but plaintiffs made no complaint to the trial court nor filed any exception to such pleading as required by Rules 90 and 91, Texas Rules of Civil Procedure. Realizing all of this, the attorney did not file a single exception to the pleadings of defendant; he did not present to the trial court any request oral or written which in any manner questioned the sufficiency of defendant’s pleadings. The plaintiffs’ attorney accepted the fact that the pleadings were sufficient to raise all defenses pleaded, and he never at any time during the trial presented his exceptions to, nor asked for a ruling by, the trial court on the sufficiency of defendant’s pleadings. See Rule 67, Texas Rules of Civil Procedure.

In fact, both sides proceeded upon the premise that the pleadings of defendant raised the exceptions and exclusions of the policy. Plaintiffs, while agreeing that defendant’s pleadings were sufficient to raise the exceptions and exclusions contained in the policy and consenting that the pleadings of defendant were sufficient to raise the issues in the policy limitations and exclusions, contended, relying on the Tilger case (264 S.W.2d 557) by the El Paso Court of Civil Appeals, that the defendant had the burden of proof in establishing the exceptions and exclusions and plaintiffs had no duty to put on any evidence.

In plaintiffs’ briefs filed in the Court of Civil Appeals and in this Court, plaintiffs have set out what in their opinion was the question to be decided. Appellants’ brief in the Court of Civil Appeals states: “The question to be resolved in this case is who had the burden of proof. The plaintiffs contend that they have met their burden of proof to establish their case, and that the defendant who plead all of their exceptions and limitations in the policy, failed to go forward with their proof under their exceptions and limitations, and that it was error on the part of the trial court to grant judgment to the defendant on the ground that the plaintiffs did not negative all the exceptions and limitations plead by the defendant.” This was confirmed by plaintiffs’ counsel in his oral argument before this Court.

Rule 90, Vernon’s Texas Rules Ann., in plain and unambiguous language provides in part, “[e]very defect, omission or fault in a pleading either in form or of substance, which is not specifically pointed out by motion or exception in writing and brought to the attention of the Judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the rendition of judgment, shall be deemed to have been waived by the party seeking reversal on such account.” (Emphasis added.)

Insufficiency of pleadings cannot be raised for the first time in the appellate courts. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1944); Texas Osage Co-Op. Royalty Pool v. Kemper, 170 S.W.2d 849 (Tex.Civ.App., 1943), writ refused. This last case has been cited in many cases down through Olivares v. Service Trust Company (Tex.Civ.App., 1964), 385 S.W.2d 687, 688, no writ history, and its holding has never been questioned. Therefore, we do not have before us and cannot decide the question regarding the sufficiency of defendant’s allegations in the case at bar.

On the point of conflict as to the burden of proof, the Court of Civil Appeals in the case at bar has correctly decided that the burden of proof was on the plaintiffs to negative the exclusions and limitations contained in the policy and pleaded as a defense by defendant’s answer. International Travelers Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938) and Travelers Ins. Co. v. Harris, 212 S.W. 933 (Tex. Com.App., 1919). The Supreme Court adopted the judgment and approved the holding of the Commission on the question discussed in that case.

Accordingly, we disapprove the contrary holding in Old Line Mutual Life Ins. Co. v. Tilger, 264 S.W.2d 557 (Tex.Civ.App.,1953), no writ history.

The judgments of both courts below are affirmed.

Dissenting Opinion

NORVELL, Justice.

The judgment in this case is not based upon the merits of the controversy. There is a genuine issue of fact as to whether the insurance policy sued upon had been procured by false representations as to the health of Mrs. Sherman. Although a jury had been impanelled, this issue was never submitted to it nor decided by the trial court. I realize that we must have procedural rules, and that upon occasion lawsuits will be determined by how lawyers use or fail to utilize these rules. However, the rendition of a judgment not based upon the merits of a controversy is a regrettable occurrence. Particularly is this true of suits upon insurance policies, considering the position the industry occupies in our economic system, its sales methods and the reliance placed upon its contracts by the buying public. Such an unfortunate occurrence or result should be avoided unless in such avoidance we raise greater evils by weakening or destroying our procedural system.

The majority cites Rule 90, Texas Rules of Civil Procedure, and takes the position that the plaintiff (petitioner) by failing to lodge proper exceptions to the defendant’s objectionable answer, has waived his right to have the true issue in the case submitted to the jury. I disagree with this position. To my mind, the answer of the defendant (respondent) constitutes an attempt by pleading to circumvent the provisions of Rule 94 and in effect reinstate the cumbersome, unjust and wholly unsatisfactory practice that existed in this state prior to the adoption of the 1941 Rules of Civil Procedure. It is the duty of this Court to promulgate and enforce rules of procedure and it follows that we should not permit such rules to be circumvented and defeated by the pleadings of litigants.

Instead of relying upon Rule 90 as a basis of affirmance, I would apply the rule applicable to sham pleadings and reverse the judgments of the courts below. We are not here dealing with an answer which is merely defective, vague or uncertain, but with one which had for its objective the raising of fictitious issues contrary to the aims and purposes sought to be accomplished by Rule 94.

The rule as to sham, vexatious or frivolous pleadings is stated in 41 Am.Jur. 527, Pleadings § 347, as follows:

“It has always been held that by virtue of its inherent power, a court has authority by summary means to prevent an abuse of its processes and peremptorily to dispose of causes of action or defenses that are sham, frivolous, or wholly vexatious. This power may be exercised, provided the vice clearly and indisputably appears, on the court’s own motion or on the motion of an adverse party to strike out the objectionable pleading. Not only is a court authorized to strike from the record a sham plea either with or without motion, but it may also disregard the plea without an express order striking it.”

In Rhea v. Hackney, 117 Fla. 62, 157 So. 190 (1934), the Supreme Court of Florida said with a wealth of supporting authorities that:

“The power to eliminate sham pleadings is an indispensable power to the protection and maintenance of the character of the court, and the proper administration of justice.”

See also, Clark v. Life & Casualty Ins. Co., 245 Ky. 579, 53 S.W.2d 968, 84 A.L.R. 1420 (1932), Bank of America Nat. Trust & Sav. Ass’n v. Sunseri, 311 Pa. 114, 166 A. 573 (1933), Nieman v. Long, 31 F.Supp. 30 (E.D.Pa.1939), Nieman v. Soltis, 24 F.Supp. 1014 (E.D.Pa.1938), 71 C.J.S. Pleading § 460, p. 945.

I cannot construe Rule 90 as depriving this Court or any other Texas court of the power and duty to disregard a sham pleading upon its own motion.

The majority recognizes that “[m]any of the policy exceptions pleaded by respondent (defendant) and included in its motion as grounds for an instructed verdict were obviously sham defenses” and concedes that, “To seek in this manner to frustrate the intended purpose of Rule 94 violates both its spirit and its letter;” but then concludes that it is unable to do anything about it. I concede that the somewhat drastic and technical rule against sham pleading should be exercised with extreme caution, 71 C.J.S. Pleading § 460(c), p. 948, but the answer filed in this case cannot be classified as one creating a doubtful situation. The defendant pleaded all of the exceptions and limitations to the general liability stated in the policy. Mrs. Sherman was a 59 year old housewife and the motion for instructed verdict following the allegations of the answer contained such far-fetched grounds as these:

“There is no evidence that Mrs. Sherman’s hospitalization made the basis of this suit, was not due to childbirth, pregnancy or any complication resulting therefrom. * * * There is no evidence that Mrs. Sherman’s hospitalization, made the basis of this suit, did not result wholly or partly in or from military or naval service or war.”

The motion then continued with 37 additional specifications of like nature. Clearly, as the majority of the Court recognized, a case involving sham defenses was presented.

The petitioner here asserts that it was the burden of the insurance company to both plead and prove facts bringing the case within the exceptions and limitations to the general liability of the insurance policy. The greater weight of American authority seems to be in accord with this contention. Perhaps, in view of the result reached in this case, the rule that the burden of proof follows the burden of pleading should be adopted in Texas. However, we recently reviewed the history of Rule 94 in Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup.1965), and concluded' that when an issue as to an exception or limitation to the general liability of the policy was raised by proper pleading, the plaintiff had the burden of proving that the risk to which the loss was attributable did not come within the pleaded exception or limitation. However, it does not follow from petitioner’s insistence upon an argument that has been rejected by this Court that he is before the appellate courts without a proper point of error. The action of the trial court, of which petitioner complains, was the giving of a peremptory instruction directing the jury to return a verdict for the defendant. This complaint has been preserved by points contained in petitioner’s brief and motion for rehearing in the Court of Civil Appeals and in his application for writ of error filed in this Court. It is not the office of a point to specify the reason why a court’s action is deemed erroneous. Clarendon v. McClelland, 86 Tex. 179, 23 S.W. 576, 1100 (1893); Lang v. Harwood, 145 S.W.2d 945 (Tex.Civ.App.1940, no writ). The function of the point is simply to state the action of a court complained of, e. g. overruling an exception, granting a continuance, excluding proffered evidence, or granting a motion for an instructed verdict. In Warren v. Houston Oil Company, 6 S.W.2d 341 (Tex.Com.App.1948), it was said that an assignment of error was sufficient which merely stated that the trial court erred in giving a summary (peremptory) instruction. See also, Green v. Hall, 228 S.W. 183 (Tex.Com.App.1921).

The narrow issue in this case is whether Rule 90 or the rule against sham pleading should control. For the reasons stated, I submit that the pleading of all the exceptions and limitations to the general liability of the policy should be disregarded and this cause remanded for trial upon the issue of fraudulent representation. Certainly, the result so far achieved in this case can only be described as a procedural miscarriage. I respectfully dissent from the order of affirmance.

SMITH, J., joins in this dissent.

      . The opinioin in Lang v. Harwood was written by Mr. Justice James P. Alexander, a leader in procedural reform, while still a member of the Waco Court of Civil Appeals, but after he had been elected Chief Justice of this Court.


author: WOODLEY, Presiding Judge. ONION, Judge.

text:
    Thomas GUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40809.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Stokes, Carnahan & Fields, by Robert N. Carnahan, Amarillo, for appellant.
    Gene Compton, Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery with firearms; the punishment, 25 years.

The sole ground of error set forth in appellant’s brief is: “The trial court erred in admitting into evidence a purported confession of the defendant taken from him at a time when he had been appointed counsel, and when he had asked for his counsel, but when his counsel was not obtained, nor was present.”

The confession admitted in evidence following a hearing before the court, in the jury’s absence, sets out the following warning:

“I have been informed of the accusation against me and of the affidavit filed therewith. I understand what crime I am accused of committing, and I have been informed of my right to an examining trial, which I waived when I appeared before Justice Cliff Roberts on the morning of January 20, 1967. I have been warned in clear and understandable terms that I have the right to remain silent and by waiving this right, everything said by me can and will be used against me in court.
“I have been warned in clear and understandable terms that I have the right to the presence of an attorney retained by me and that Mr. Robert Carnahan, attorney, was appointed for me on the morning of January 20th, 1967 and that I may have such attorney present prior to any questioning and during all periods of questioning. I hereby waive the right to have Mr. Carnahan present.
“I understand that I cannot be questioned unless I agree to be questioned and that even though I may have consented to questioning and have answered some questions or volunteered some statements, if I indicate in any manner and at any time that I want to consult with my attorney, or that I do not wish to be questioned or interrogated; such questioning or interrogation must stop immediately.
“I understand that I can waive all of the above rights, if I so desire and at this time I do expressly, voluntarily, knowingly, and intelligently waive my right to talk to Mr. Robert Carnahan and I further state that I have waived an examining trial which was offered to me by Mr. Cliff Roberts and I do agree to answer questions and make a statement.
“I also state that I have been warned by Deputy Stony Jackson, the person to whom this statement is given that:
“1. I do not have to make any statement at all,
“2. Any statement made by me will be used in evidence against me on my trial for the offense concerning which this statement is made.
“After which I make the following statement:”

After hearing the testimony of Deputy Sheriff Stony Jackson, Justice of the Peace Cliff Roberts, District Attorney Gene Compton and appellant, the trial judge resolved the issue of fact and made the following findings which are supported by the evidence adduced before him at the hearing.

“1. That the defendant, Thomas Gunter, was arrested on a warrant of arrest at approximately 8:00 P.M. by Potter County Sheriff Deputies Jackson and McCarty in Amarillo, Texas, on January 19, 1967;
“2, That said arresting officers transported the defendant to the Potter County jail where he was incarcerated the same evening;
“3. On the morning of January 20, 1967, at approximately 9:00 A.M., the defendant was transported by Sheriff’s Deputy Jackson from Potter County jail to the courtroom of Justice of the Peace, Cliff Roberts, who presides over the Justice of the Peace Court, Precinct One, Place Two in and for Potter County, Texas;
“4. At such arraignment and in such courtroom, in open court, Judge Cliff Roberts, Judge of such Justice Court and a magistrate, advised said defendant that he did not have to make any statement at all, that any statement he made would be used in evidence against him, that he could retain and call a lawyer if he desired, and that if he wanted him to, he the said Judge, would call a lawyer and appoint him a lawyer, and in fact the defendant did request the appointment of counsel, and the Honorable Robert N. Carnahan, practicing attorney of the Amarillo Bar Association, was called to court and was formally appointed to represent the defendant; that the said Cliff Roberts, Judge of said Court, further advised the defendant of the accusations against him and of any affidavit filed therewith, and that the defendant could have an examining trial if he so desired. Cliff Roberts, Judge of the Justice of the Peace Court, Precinct One, Place Two, in and for Potter County, Texas further allowed the defendant reasonable time and opportunity to consult with his counsel, and set bond on the morning of January 20, 1967 at said arraignment;
“5. Thereafter, on the 24th day of January, 1967, the defendant stated to the Potter County jailer that he wanted to talk with Sheriff Deputy Jackson, and in response to said request, defendant was brought from the upper portion of the jail to the ground floor of the Potter County Sheriff’s Office, where Sheriff Deputy Jackson was. Sheriff Deputy Jackson at such time first retold the defendant that he did not have to make any statement to him or to anyone else and that any statement made by the defendant would be used against him and Deputy Jackson further warned the defendant as is set out more fully on page one of State’s Exhibit No. 1;
“6. Thereupon the defendant voluntarily disclosed to Deputy Jackson certain facts implicating himself in the offense of which he was charged and shortly thereafter defendant was brought to the office of the Potter County District Attorney;
“7. Whereupon Sheriff Deputy Jackson informed district attorney Gene Compton that the defendant desired to make a voluntary written statement concerning the offense with which he was accused;
“8. Thereupon Gene Compton called Justice of the Peace, Cliff Roberts to inquire as to whether or not the defendant had been given the statutory warning by a magistrate as required by the Texas Code of Criminal Procedure and whether or not counsel had been appointed, whereupon Gene Compton was informed that all statutory and constitutional warnings had been given and that Robert N. Carnahan had been appointed and had conferred with the defendant on the morning of January 20, 1967, when the defendant was arrested;
“9. Thereafter Sheriff Deputy Jackson rewarned the defendant, prior to the defendant making any statement in writing, that he did not have to make any statement and that if he did the same would be used in evidence against him on trial for the offense concerning which the statement was made;
“10. Defendant, after his oral statement had been reduced to two pages of writing, had the written statement read to him and read the statement himself and signed same in the presence of Mrs. Billie Nance Robbins and B. J. McCarty who then signed the same as witnesses;
“11. The Court further finds as a matter of fact and law that the statement herein-above referred to which has been offered in evidence herein and State’s Exhibit No. 1, was voluntarily given by the defendant, and that no coercion, duress, persuasion, threats or promises, or any other improper influence were exerted by anyone to get the defendant to sign such statement and that he the said defendant executed the same of his own free will and volition, that the defendant well understood the contents thereof at the time of signing same;
“12. The Court further finds as a matter of fact and law that the defendant was duly informed of his rights to talk to an attorney before making any statement and -that in fact an attorney was appointed, and at no time after said attorney was appointed, but before such voluntary statement was given by the defendant, did the defendant request that his counsel be present at the time of the giving of the said statement, nor was the defendant denied the right to either consult with or have his attorney present at the time this statement was given.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the defendant’s objection to the admission of such confession into evidence, which is identified as State’s Exhibit No. 1, is hereby overruled; to which the defendant then and there in open court duly excepted.”

It is apparent that the fact issue as to whether appellant “had asked for his counsel” was resolved by the trial judge against appellant. The testimony of Deputy Sheriff Jackson supports and sustains the trial court’s findings.

It is evident from the warning portion of the confession and the trial judge’s findings that appellant was clearly informed of and effectively waived his right to have counsel present at the time the confession was made. The rule of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, cited by appellant, was not violated.

The judgment is affirmed.

CONCURRING OPINION

ONION, Judge.

I agree that the appellant prior to his confession, was given the warnings required by Article 15.17 and 38.22, Vernon’s Ann.C.C.P., in effect at the time of his statement as well as the warnings required by Miranda v. State of Arizona, supra, and that thereafter he intelligently, voluntarily and knowingly “waived” his rights. In view of the length of his incarceration (8 p. m. on January 19, 1967, to the time of the confession on January 24, 1967) and the failure to call his court appointed attorney, I feel I must express my own reasons for agreeing that there was a “waiver” as contemplated by Miranda.

In Miranda the United States Supreme Court said:

“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so.” 384 U.S. at p. 476, 86 S.Ct. at p. 1629, 16 L.Ed.2d at p. 724.

The record before us shows that the appellant was a 21-year-old high school graduate, who was a member of the United States Air Force with 4 years of service.

Testifying in his own behalf at the separate hearing on the voluntariness of the confession, the appellant stated that he had not been mistreated in jail and that the jailer had made him and all the jail inmates aware that they could call their attorneys any time they got “ready.” There was no evidence that he was held incommunicado.

While there appears to be some conflict in the testimony as to whether appellant sent for Deputy Sheriff Jackson, the evidence supports the judge’s finding that he did.

It appears that prior to the confession the appellant, while he was drinking coffee with the deputy, was warned by such deputy among other things that he did not have to make any statement, that any statement he made would be used against him, and that he could call his court appointed counsel. He was further told that his lawyer would advise him against making any statement. Appellant then stated he was willing to make a statement and did not want his lawyer. Thereafter, without lengthy interrogation, the written confession was taken, read and signed by appellant in the District Attorney’s office under the circumstances described in the majority opinion.

I cannot conclude that the record would support a finding that this appellant was threatened, tricked or cajoled into a waiver. It appears that all the necessary warnings were given at the time of the interrogation and the appellant was aware that he was free to exercise his rights and privilege against self-incrimination at that point in time.

Caution, however, is urged in the use of this opinion as authority for the proposition that the counsel for the accused, either retained or appointed, need not be called prior to interrogation. Here the evidence demonstrated a clear cut affirmative waiver of the right to counsel prior to interrogation, which will not always be present in every case.

For the reasons stated, I concur.

MORRISON, J., joins me in this concurrence.

      . In Miranda, the Court said: “[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. * * *»


author: DICE, Judge.

text:
    Jerry Wayne ST. JOHN, Appellant, v. The STATE of Texas, Appellee.
    No. 40846.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Fred Moore, Vincent W. Perini, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Emmett, Joe K. Hendley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for robbery with firearms; the punishment, fifty years.

The record on appeal has not been approved, as required by Art. 40.09-7, Vernon’s Ann.C.C.P.

The time for filing the defendant’s brief does not begin to run until the approval of the record by the court. Art. 40.09-9, C.C.P.

The disposition of the appeal will be suspended to await the approval of the entire record and further proceedings which may be had in the trial court under Art. 40.09, supra, after such approval, as though the record had not been filed in this court. Stoker v. State, Tex.Cr.App., 415 S.W.2d 923.

The appeal is abated.


author: BELCHER, Judge.

text:
    Jimmie Dee ISAAC, Appellant, v. The STATE of Texas, Appellee.
    No. 40789.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.

      R. E. Murphey, H. O. Woodward, Coleman, for appellant.
    Gordon Griffin, Jr., Brownwood, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery and the punishment was assessed by the jury at twenty years.

The testimony of the state reveals that the assaulted party, while testifying, identified the appellant as the person who exhibited a shotgun, threatened to kill him, and put him in fear of his life and bodily injury, and took fifty-five dollars in money from his possession and without his consent.

Testifying in his own behalf, the appellant denied that he committed the robbery.

The admission of testimony that the appellant escaped while in custody at the scene of the offense alleged is urged as a ground of error.

Immediately after his arrest, the appellant was taken to the railway depot, where the alleged offense occurred according to the testimony of the state. While in the depot, the appellant jumped through a glass window and ran from the officers.

Evidence of flight and escape are admissible as evidence of guilt. Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340; Hutchins v. State, 172 Tex.Cr.R. 525, 360 S.W.2d 534. Further, while testifying in his own behalf, the appellant admitted jumping through the widow at the depot.

It is contended that the admission in evidence of a hat, shoes, coins and jacket was error on the ground they were found as the result of an illegal search of a residence where the appellant was found after the alleged robbery.

It is undisputed that the officers were invited into the residence at the time they first located the appellant. It is the seizure of the hat and shoes on return to the house after going to the depot, that the appellant urges as error.

The hat, shoes, and the shotgun were all seen, as they were in open view, on the first visit to the house, when the officers were invited to enter. The officers took the shotgun on the first visit and no complaint about this is urged.

Testifying in his own behalf on direct examination, the appellant admitted his possession of the coins and stated that he had earned them. The appellant first offered evidence that the officers returned to the house, about one block from the depot, and got the shoes which he put on at the depot and he also put on the hat. The state never inquired about the jacket before the jury and it was not exhibited to them. The contention presents no error.

Error is urged on the ground that appellant was compelled to put on the hat and shoes at the depot so he could be viewed for identification.

The putting on of the hat and shoes was first introduced in evidence before the jury by the appellant. No error is shown. Turner v. State, Tex.Cr.App., 371 S.W.2d 891. However, these acts did not violate appellant’s privileges against self-incrimination. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 1151.

The judgment is affirmed.