author: ANDERSON, Judge.

text:
    Donald C. GRIFFITH and John M. Groves, d/b/a Griffith and Groves Real Estate Company, a Partnership, Plaintiffs, v. SECO COMPANY, Inc., a Corporation, Defendant-Appellant, and Carl G. Stifel Realty Company, a Corporation, Defendant-Respondent.
    No. 32409.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 17, 1967.

      Michael D. O’Keefe, Daniel P. Reardon, St. Louis, for defendant-appellant.
    Hocker, Goodwin & MacGreevy, St. Louis, for plaintiffs.
    Stamm, Millar & Neuhoff, David L. Millar, Ray E. White, Jr., St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This cause was originally filed by plaintiffs against Seco Company, Inc., to recover an amount alleged to be due plaintiffs as a real estate commission for services in connection with the lease of certain premises belonging to defendant on which there was an industrial building. Thereafter, plaintiffs filed an amended petition joining Carl G. Stifel Realty Company, a corporation, as a defendant upon its refusal to join as a party plaintiff in said action. This amended petition was in two counts. Count I was for damages for breach of contract to pay a commission alleged to have been earned by plaintiffs and Stifel as a result of the negotiation by them of the lease of the premises, and Count II was for the reasonable value of plaintiffs’ services in connection with said negotiations. Defendant Stifel filed its answer and a cross claim against defendant Seco. The cross claim was in four counts as follows: Count I for a breach of contract in failing to pay a real estate commission alleged to be due upon the exercise by the tenant of the option to renew contained in the lease; Count II for the reasonable value of services rendered in connection with said renewal; Count III for breach of contract in failing to pay a commission upon a second renewal of the lease by the tenant; and Count IV for the reasonable value of services performed in connection with said second renewal. Defendant Seco joined issue by filing an answer to said cross claim. Thereafter, plaintiffs dismissed their cause of action, and a trial was had on the issues raised by defendant Stifel’s cross claim and Seco’s answer thereto. At the close of all the evidence, defendant Stifel dismissed Counts II and IV of said cross claim, and filed a motion for a directed verdict as to Counts I and III, which the court sustained, and directed a verdict in favor of defendant Stifel, and against defendant Seco in the sum of $4,222.36 on each count. Judgment was thereupon entered on said verdicts in the aggregate sum of $8,444.72. From this judgment, defendant Seco has appealed.

On July 28, 1955, appellant entered into a contract with Carl G. Stifel authorizing the latter to list for sale premises owned by it located in the City of St. Louis. Thereafter, and on February 3, 1956, the listing was extended for a period of six months from January 28, 1956, and new terms added to the agreement. This was accomplished through a letter from Stifel to Seco, dated February 3, 1956, signed by Mr. F. B. Martin, executive vice-president of Stifel, and accepted on behalf of Seco by its president, Dan C. Muckier. The terms of this new agreement, material on this appeal, are set out in said letter and are as follows:

“As per our verbal agreement of yesterday, it is agreed that our listing for the sale of your properties located on South Thirty-Eighth Streets, known as Building No. 2 and Building No. 3 is to be extended for a period of six months from January 28, 1956.
“The properties are to be offered for sale on the same terms, price and conditions.
“Also we are to offer these properties for lease at a rental of 55‡ a square foot for Building No. 2 and 60‡ a square foot for Building No. 3. You are to pay the taxes, hazard insurance and maintain the roofs, outside walls and downspouts. The minimum term of lease is to be not less than ten years.
“In the event that this property is leased, our leasing commission is to be three per cent on the total amount of the lease. * * * ”

On August 3, 1956, Seco leased to Western Electric Company, Incorporated, a New York Corporation, the premises described in said lease as “ * * * Land and a one and two story building known as premises 5200-42 38th Street, bounded by 38th Street, Walsh Street, Eichelberger Street and an alley; for the term of five (5) years beginning September 1, 1956, and ending August 31, 1961, with option in the Lessee to extend the said term for two (2) additional periods of three (3) years each, by written notice sent to the Lessor six (6) months before the then current expiration date. * * * ” The building referred to in the description of the premises was the Building No. 3 referred to in the letter from Stifel to Seco, heretofore set out. The lease further provided: “And the Lessee, in consideration of the leasing of the premises as aforesaid by the Lessor to the Lessee, hereby covenants and agrees to pay to the Lessor as rent for the said demised premises for the said term of five (5) years, the sum of TWO HUNDRED TWENTY-EIGHT THOUSAND SEVEN HUNDRED FIFTY and 00/100 DOLLARS ($228,-750.00), payable monthly in advance in installments of THREE THOUSAND EIGHT HUNDRED TWELVE and 50/100 DOLLARS ($3,812.50) on the first day of each and every month of said term, and at the same rate during any extension of said term, * *

Stifel represented appellant in the negotiations with respect to this lease, and Western Electric was represented by plaintiffs. There was an agreement between the two real estate firms that plaintiffs would be paid 45 percent of the commission collected by Stifel from Seco. During the latter part of 1956, Seco paid Stifel the sum of $6,862.50, said sum being three percent of the rental specified in the lease for the five year term beginning September 1, 1956. Out of the amount received, Stifel paid plaintiffs $3,088.12.

On January 30th, 1961, Western Electric, by letter, notified defendant, Seco, that it chose, to exercise the first three year option under the lease. There is no evidence that Stifel performed any service in securing the extension of the lease for this additional period. Again in February, 1964, Western Electric chose to exercise the second option provided for in the lease. This was accomplished without any assistance from Stifel. In fact, both options were exercised strictly in accordance with the terms of the lease.

Subsequent to the exercise of the first option, in a letter dated May 19, 1961, Stifel advised Seco that plaintiffs had advised them of the exercise by Western of the first option and plaintiffs were billing Stifel for their share of a three percent commission of the rental for the extended period.

Appellant ■ contends that the trial court erred in denying its motion for a directed verdict on Counts I and III, and in directing a verdict for respondent on said Counts, for the reason that there was no agreement to pay a commission upon the exercise of the options.

Respondent’s right to commissions was based upon a written contract which provided that the commission would be three percent of the total amount of the lease. Respondent negotiated a lease for a five year period. When this lease was executed, a tenancy for five years was created. Western Electric was bound for that term and no longer, and when the lease was executed, respondent earned its commission. Respondent was paid a commission of three percent of the rental provided for in the lease, which was, in our judgment, all that respondent was entitled to receive, notwithstanding the fact that Western Electric chose to extend the lease on two occasions. When Western Electric exercised its option, a new relationship of landlord and tenant was created, whether it he termed a renewal or an extension. Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, l. c. 21. In that case the court stated that the courts of this state made no distinction between a renewal and an extension unless a new lease is specifically-required with terms different from those of the old. The court then held that when the tenants exercised their option to renew upon the identical terms and conditions as expressed in the original instrument, a new tenancy was created even though the lessor refused to comply with the formality of executing a new lease as contemplated by the old lease.

There seems to be a dearth of authorities on the precise point at issue here, and none squarely in point in this state. The New York cases of Mullen & Woods, Inc. v. 615 West 57th Street, Inc., 146 Misc. 599, 262 N.Y.S. 467, and Allwin Realty Co. v. Barth, 161 App.Div. 568, 146 N.Y.S. 960, deal with the subject at hand and announce rules in support of appellant’s position. In the Mullen & Woods, Inc., case, it was urged that there was an implied promise to pay an additional commission in the event the tenant exercised its option to renew the lease. In disposing of this contention, the court said:

“In the absence of special agreement, the plaintiff would not be entitled to commissions on subsequent extensions of which it was not the procuring cause. Nor could the plaintiff recover on the theory that by securing the inclusion of the renewal clause in the original lease it performed services which were of benefit to the defendant. On the contrary, by assenting to the clause which gave the tenant the option of renewal, the defendant subjected itself to a liability without corresponding benefit. Indeed, the plaintiff made no attempt to prove that its services in procuring such an option in the original lease were of any value to the defendant, and it is manifest that it could not do so.”

In Allwin Realty Co., v. Barth, supra, the owner of the premises employed plaintiff, a real estate agent, to secure a tenant for her premises, agreeing to pay as a commission one percent of the amount received as rent. Plaintiff negotiated a lease which ran for a term of six years and nine months. The agent was paid a commission based upon the amount of rent during the first term of six years and nine months, then brought suit for an additional commission based on the amount of rent to be received during the renewal term. On this state of facts, the court said:

“ * * * I think that under his employment that was all the commission to which the broker was then entitled. This term demised of six years and nine months was from August 1,1904, and that was the term of the lease. It covered all the rent which was received under the lease made by the tenant procured by the broker. The covenant of renewal was entirely at the option of the tenant, and whether or not there should be a renewal of the lease could not be determined until the time when the tenant was called upon to give the notice by which he was to exercise his option. Certainly the broker would not, when the lease was executed, be entitled to sue for and recover commission based upon the amount of rent that should be paid if the tenant did exercise his option to take a new lease for a second term of seven years. All that the tenant whom the broker procured agreed to pay was the rent for the term of six years and nine months, which was the term demised, and it seems to me clear that the rent during such term was all the rent that was secured to be paid by the lease and on which the broker was entitled to his commission.”

We have found no case which holds that a real estate agent is entitled to recover commissions on a renewal or extension of a lease, absent an express provision in the brokerage agreement for same. See Annotation in 79 A.L.R.2d 1068.

Respondent has cited the case of Laughlin v. Terry, Mo.App., 110 S.W.2d 838. This was a suit by a lessor against a real estate agent he had employed to secure for him the lease, for recovery of one half the commission paid upon the execution of the lease, on the theory that since the lessee had exercised an option to terminate the lease at the end of the first year of the lease which was for a two year term, defendant had not earned the part sued for. There was a judgment for plaintiff and defendant appealed. The judgment was affirmed.

The contract provided: “ T hereby agree to pay Albert T. Terry, Son, & Company a commission of five per cent of the gross amount of rentals of any lease accepted by me on #5 Fair Oaks, St. Louis County, said commission to be paid to Albert T. Terry, Son & Company upon consumation of any lease by said Albert T. Terry, Son & Company/ ”

The lease was for two years, ending October 20, 1935, at $250 per month, with the right of lessee to terminate the lease during the first year by giving 90 days notice. On July 17, 1934, the lessee gave notice he would terminate the lease on October 20, 1934, and thereafter, the lessor demanded $150, one half the commission paid which she claimed was unearned. Defendant claimed he was entitled to five percent of the amount of rentals payable under the lease for the full term of the lease, i. e. two years, contending that the clause, “ ‘a commission of five per cent on the gross amount of rentals’ ” means on the maximum amount. The court in disposing of this said, “Of course, the clause has no such meaning. It obviously means the gross amount of rentals the lessee is bound to pay, or becomes bound to pay through the lapse of options, under the provisions of the lease.”

In the case at bar, respondent secured a lease under which the lessee was bound for a term of only five years. It was paid a commission for that service, and is not entitled to further compensation.

The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment for defendant.

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


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Kurt J. DIEKMANN and Norma (Mrs. Kurt) Diekmann, Plaintiffs-Appellants, v. ASSOCIATES DISCOUNT CORPORATION, a Corporation, and Emmco Insurance Company, Defendants, Bernard H. Lindenbusch, d/b/a Ben Lindenbusch, Defendant-Respondent.
    Nos. 32122, 32199.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 17, 1967.

      W. W. Sleater, St. Louis, for appellants.
    Mehan & Sanders, by Richard J. Mehan, St. Louis, for defendant-respondent.
   CLEMENS, Commissioner.

The plaintiffs, Kurt J. Diekmann and his wife Norma Diekmann, appeal from an order vacating a default judgment they had gotten against defendant-respondent Bernard H. Lindenbusch, a car dealer. The parties brief two issues: Is the order ap-pealable ? If so, was it proper for the trial court, after the judgment had become final, to set it aside on the ground it had been rendered on an amended petition not served on defendant Lindenbusch?

The plaintiffs had sued three defendants for damages suffered from buying, financing and insuring an automobile. Each was served with summons. The financer and the insurer pleaded but defendant Linden-busch defaulted. Later, plaintiffs filed an amended petition but did not have it served on defendant Lindenbusch. Still later, plaintiffs dismissed their amended petition against the defendant financer and insurer and proved up a $1,496 default judgment against Lindenbusch. After the judgment had become final, the plaintiffs got out an execution and garnishment against defendant Lindenbusch. He then moved the court to set aside the judgment on the ground of irregularities on the face of the record. The court granted the defendant’s motion, quashed the garnishment, set aside the default judgment, and put the case back on the docket. Plaintiffs promptly appealed from that order. (Appeal No. 32,122.) With an abundance of caution, plaintiffs simultaneously filed a motion for new trial. When that was denied by the passage of ninety days without court action, plaintiffs again appealed. (Appeal No. 32,199.)

At the threshold we meet defendant’s motion to dismiss plaintiffs’ appeals. He contends the appeals are premature because the plaintiffs have not yet suffered an adverse judgment; that they must submit to a retrial and only then can appeal — if they lose. Lindenbusch points to a wide range of cases holding that a plaintiff cannot appeal from an order setting aside a default judgment.

Before discussing these cases we must separate them according to the time each default judgment was set aside. This, because there is a material difference between default judgments that are not final and those that have become final. Here, the Diekmanns’ default judgment was rendered June 19, 1964; it had become a final judgment when the trial court set it aside November 2, 1964. So, this case differs from those where the trial court sets aside the default judgment within thirty days after the judgment (or in pre-code days did so during the term the default judgment was rendered). By common law (Wooten v. Friedberg, 355 Mo. 756, 198 S.W.2d 1 [1]) and now by Civil Rule 75.01, V.A.M.R., trial courts then had and now have the power to vacate default judgments rendered within those times. During this incubation period a default judgment is “within the breast of the court”; and because it has not become final, setting it aside is a discretionary act from which no appeal lies. McCormick v. St. John, 236 Mo.App. 72, 149 S.W.2d 894 [1]; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467 [4]. Even though a plaintiff may have filed a motion to vacate, when the court sets aside the default judgment within thirty days the court is deemed to have acted on its own initiative; and the motion is considered as only a “suggestion to the court.” Mid-States Equipment Corp. v. Hobart Welders Sales & Service, Mo.App., 233 S.W.2d 757 [4]; Owens v. Owens, Mo.App., 280 S.W.2d 867, l. c. 869. We point up this distinction because several cases cited by defendant, and other cases, holding that an appeal does not lie from an order setting aside a default judgment were cases where the order was made during the trial court’s discretionary period, before the judgment became final. Those holdings of premature appeal were required for a different reason: because there never had been a final judgment. They are not in point here.

Defendant Lindenbusch spotlights the oft-cited case of Bussiere’s Administrator v. Sayman, 257 Mo. 303, 165 S.W. 796. In that case, as here, the trial court set aside a final default judgment. The plaintiff-appellant contended that the trial court’s order vacating his final default judgment was a “special order after final judgment,” and therefore was appealable under the statute (now § 512.020, V.A.M.S.). The Supreme Court rejected this, saying: “Is there here left any final judgment in the cause when the appeal is prayed? Clearly not, because the motion being acted on favorably by the court has utterly wiped the final judgment off the record and the earth. It is not and cannot be an appeal after final judgment, because to my mind such a term could be applied only where a final judgment still existed, not to a case where it had utterly ceased to exist.” The reasoning in Bussiere was followed in Stanton v. Hanna, Mo., 199 S.W. 145. We find no other case where the Supreme Court has applied Bussiere to an order setting aside a final default judgment.

The defendant clings to this concept that there is no appeal from an order vacating a final default judgment, citing our two opinions in Farrell v. DeClue, Mo.App., 365 S.W.2d 68 and 382 S.W.2d 462, where we followed Bussiere. The results there demonstrated the futility of following Bussiere. In the first DeClue case plaintiff got a default judgment for $9,000; the trial court set it aside — erroneously. But when plaintiff appealed we followed the procedure prescribed by Bussiere, dismissed his appeal as premature, and remanded the case. Plaintiff then tried his case to a jury and got a $2,500 verdict. Again plaintiff appealed, and only then did we consider the merits of the original order vacating the default judgment — and we held it was erroneous. We again remanded, this time ordering the trial court to reinstate the original $9,000 default judgment. By thus adhering to Bussiere, we compelled the plaintiff — who had a valid default judgment all along — to undergo a jury trial and a second appeal before we would consider the prejudicial error that had been patent on the record all the time. If Biissiere had not been a part of our judicial wardrobe for so many years, we could well ask: Would you believe it?

But in Casper v. Lee, 362 Mo. 927 (banc), 245 S.W.2d 132, our precise issue — an appeal from an order vacating a final default judgment — was ruled to the contrary. There, the plaintiff got a default judgment on October 5, 1949, giving him title to real estate and damages. After the default judgment had become final, it was set aside on the defendant’s motion; and, just as here, the plaintiff appealed. The court said:

“On December 7, 1949, more than thirty days after the entry thereof, respondent filed a motion to vacate and set aside the default judgment. After hearing, the motion was sustained; the judgment was set aside; and the case was ordered reinstated on the docket. After an unavailing motion for a new trial, appellant has taken this appeal from the order or judgment setting aside the judgment in favor of appellant. An appeal lies from such an order or judgment. * * * ” (Our emphasis.)

The court then took up the merits of the motion to vacate. Judges Dalton and Hyde dissented, not on the issue of appealability but on the merits of the order.

In thus holding that an appeal does lie from an order setting aside a final default judgment, the Supreme Court turned away from its ruling in Bussiere. This case of Casper v. Lee is the last word of the Supreme Court on the point now before us. So, we must and do rule that the plaintiffs Diekmann may appeal from the trial court’s order setting aside their final default judgment. The Kansas City Court of Appeals recently followed the Casper case, twice holding that if the trial court vacates the plaintiff’s final default judgment, the plaintiff may appeal to challenge the propriety of the order that took away his judgment. Fisher v. Mahler, Mo.App., 407 S.W.2d 590, and Robinson v. Clements, Mo.App., 409 S.W.2d 215, decided October 3, 1966, held that Casper v. Lee controlled the issue of appealability.

Defendant-respondent Lindenbusch argues, logically, that we must have statutory authority to consider the appeal. Section 512.020, V.A.M.S., authorizes appeals : from any order granting a new trial, from certain designated orders and interlocutory judgments that determine the rights of the parties, from any final judgment, and from any special order after final judgment in the cause. In Bussiere the court pointed out that the order appealed from had wiped out the judgment and reasoned that the italicized clause authorized an appeal only when a final judgment still existed after the trial court’s order. But the clause “from any special order after final judgment” is open to another construction: an appeal lies from any order made after a judgment has become final. The law favors appeals, and statutes granting appeals should be liberally construed. (Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456 [5]; 2 Mo.Digest, Appeal and Error, Viewed in that light, an order vacating a default judgment after it has become final is “a special order after final judgment”; and an appeal should lie to test the power of the trial court to take away the plaintiff’s final judgment. But our ruling need not rest on that construction of § 512.020, V.A.M.S. Enough that in Casper v. Lee the Supreme Court ruled that a case like ours is appealable. So, we deny respondent Lindenbusch’s motion to dismiss the appeals and move on to consider the merits of the trial court’s act of vacating the final default judgment.

Here is the time table of relevant events leading to the vacation of plaintiffs’ judgment:

November 12, 1960. Plaintiffs filed their amended petition in five counts against all three defendants; counsel’s typed notation shows that copies were mailed to each defendant.
July 16, 1963. Plaintiffs and the two corporate defendants filed a stipulation for dismissal with prejudice, at plaintiffs’ costs.
May 27, 1964. Counsel for plaintiffs filed “Notice of Hearing” to present evidence on June 2, 1964; counsel’s notation shows that a copy was mailed to defendant Lindenbusch by certified mail and a return receipt was attached, signed “Ben Lindenbusch.”
June 2, 1964. Plaintiffs appeared and dismissed Counts One, Three, Four and Five. Defendant Lindenbusch remained in default. Evidence heard and cause submitted. Judgment for plaintiffs against defendant Lindenbusch for $1,145 actual damages, $1 punitive damages, $350 attorney fee, and costs.
October 13, 1964. Defendant Linden-busch filed his motion to quash summons in garnishment and set aside judgment for plaintiffs’ failure to serve Linden-busch with copy of amended petition.
November 13, 1964. Motion granted, judgment set aside, and cause reinstated on docket.

Our examination of this record and the law convinces us (a) that by rule some amended petitions must be personally served on defaulting defendants, (b) that this amended petition is within that rule, and (c) that plaintiffs’ failure to comply with the rule was an irregularity which empowered the trial court to vacate the final default judgment. Civil Rule 43.01(a), V.A. M.R., says:

“Service — When Required. Every pleading subsequent to the original petition * * * shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in this code.” (Our emphasis.)

Defendant Lindenbusch was in default and the amended petition was not served upon him in the manner provided for service of summons. So, we must ask: Did plaintiffs’ amended petition assert new or additional claims against him?

Count One of the amended petition changes the original allegations about the sale, tender and demand for the automobile and the amounts of carrying charges, and adds charges of duress and threat of repossession. Count Two of the original petition charged that defendants conspired to defraud plaintiffs; Count Two of the amended petition, on which the default judgment was rendered, adds that the acts of “plaintiffs” were malicious, willful and deliberate, but says nothing of fraud. The amount of damages prayed in Count Three of the amended petition exceeds the amount sought in original Count Three. Counts Four and Five of the amended petition seek penalties and damages not sought by the corresponding counts of the original petition. Beyond question, this amended petition asserts “new or additional claims for relief.” It follows that plaintiffs violated Civil Rule 43.01(a), V.A.M.R., by failing to serve a copy of it on defendant Linden-busch.

Having reached this conclusion we next ask whether this violation of the rule empowered the trial court to set aside the final judgment. Our procedural arsenal holds six weapons designed to bring down a final default judgment: a separate suit in equity, a statutory petition for review, a nunc pro tunc order, a motion in the nature of a writ of error coram nobis, a motion showing fraud practiced on the court, and a motion showing irregularity on the face of the record. (See Vol. 28, MLR, p. 281, 1963.) The last is the one facing us. Civil Rule 74.32, V.A.M.R. (§ 511.250, V.A.M.S.), states:

“Motion to Set Aside, When Filed. Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof.,”

These words acknowledge the common law existence of the remedy and merely put a time limit on its use. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672 [2].

The irregularity must be one that “is patent on the record, and not one depending upon proof dehors the record.” Casper v. Lee, 362 Mo. 927 (banc), 245 S.W.2d 132 [6]; Harrison v. Slaton, Mo., 49 S.W.2d 31 [3]. The plaintiffs concede that the amended petition was not personally served on the defendant; the record shows that their counsel relied on service by mail. Mail service suffices only if a party is represented by counsel of record. Civil Rule 43.01(b), V.A.M.R. Further, the irregularity must be “a want of adherence to some prescribed rule or mode of procedure consisting either in omitting to do something that is necessary, or in doing it at an unreasonable time or in an improper manner.” Murray v. United Zinc Smelting Corp., Mo., 263 S.W.2d 351 [4]; Edson v. Fahy, Mo., 330 S.W.2d 854 [1]. It was that kind of irregularity. For example, courts have properly set aside final judgments where it appeared from the face of the record that judgment was rendered before the time for answering had expired (Poindexter v. Marshall, Mo.App., 193 S.W.2d 622 [2]); that the judgment gave plaintiff more than he asked for in his petition (Johnson v. Underwood, 324 Mo. 578, 24 S.W.2d 133 [13]); and that judgment approving a redemption bond was rendered without giving statutory notice to the purchaser (White v. Huffman, Mo.App., 304 S.W.2d 909 [4]).

Turning from illustrations to a case more directly in point, we note Rubbelke v. Aebli, Mo., 340 S.W.2d 747 [6-9], There, the face of the record showed that the defendant was duly summoned and answered, but did not appear at the time of trial; without notice to the defendant, the plaintiffs then made material amendments to their petition, and judgment was rendered against the defendant. After the judgment was final, the defendant’s motion to vacate was denied. On appeal the court reversed, ruling there was an irregularity patent on the record and that the trial court should have vacated its judgment and given the defendant an opportunity to be heard on the merits of the amended petition. So, the trial court there was reversed for not doing the very thing the trial court did do here.

The orders vacating the plaintiffs’ default judgment and denying their motion for a new trial are affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the orders vacating the plaintiffs’ default judgment and denying their motion for a new trial are affirmed.

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

      . Harper v. Harper, Mo.App., 379 S.W.2d 889; Steffan v. Steffan, Mo.App., 390 S.W.2d 587 [6]; Crossland v. Admire, 118 Mo. 87, 24 S.W. 154; Owens v. Owens, Mo.App., 280 S.W.2d 867.

      . Holder v. Chidister, Mo., 193 S.W. 568; Carter v. Levy, Mo.App., 217 S.W. 549; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467.

      . Whether the final default judgment had “ceased to exist” would seem to depend on whether the order setting it aside was a lawful order. By dismissing the appeal on the ground that the final default judgment had “ceased to exist,” the appellate court assumed — but refused to determine — the lawfulness of the very order on which it based its decision.


text:
    Josephine CROCKWELL and Robert Crockwell, Plaintiffs-Respondents, v. John T. OLDANI, Defendant-Appellant.
    No. 32415.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 17, 1967.

      Heneghan, Roberts & Cole, Robert G. Burridge, St. Louis, for defendant-appellant.
    Vincent M. Igoe, St. Louis, for plaintiffs-respondents.
   ANDERSON, Judge.

This is a damage suit brought by Robert Crockwell and Josephine Crockwell, husband and wife, against John T. Oldani. The petition in said suit was in three counts. By Count I, Mrs. Crockwell sought damages for personal injuries alleged to have been sustained by her as a result of a collision between a car she was driving and an automobile being driven by defendant. In Count II, Robert Crockwell sought damages for the loss of his wife’s companionship, society and consortium, alleged to have been suffered by him as a result of said accident. In Count III, both plaintiffs sought recovery for the damages to the car which resulted from said collision. There was a verdict for Mrs. Crockwell on Count I for $1,000.00; for the husband, Robert Crock-well on Count II for $200.00 and for both plaintiffs on Count III in the sum of $800.-00. From the judgment on said verdicts, defendant has appealed.

The case was submitted solely on failure to slacken speed and swerve under the humanitarian doctrine. Appellant contends that no submissible case was made under the theory submitted, and that the court erred in sending to the jury room, at the request of the jury, a note explaining plaintiff’s testimony as to the directions shown on certain photographs in evidence, then in the possession of the jury. We will refer to the parties as plaintiffs and defendant.

The collision occurred at about 9:45 a.m. October 23, 1962, at the intersection of Althea and Sterling Avenues. Both are public thoroughfares in St. Louis County. Both streets have blacktop paving about 25 feet wide and with drainage ditches on the sides. It was not shown how deep these drainage ditches were, or how far they were from the edge of the pavement. However, plaintiff testified that “[t]hey do park on the sides” of Sterling. Photographs were introduced showing Sterling Avenue at and near the intersection which might have revealed the approximate distance, but defendant-appellant did not lodge these exhibits in this court. There was no curbing on either street at the time of the accident. Sterling Avenue runs east and west. Althea is a north and south street. The streets intersect at right angles. There were no painted lines marking the center of either street. There were no stop or traffic control markers on either street at the intersection, and no traffic control lights. Mrs. Crockwell, prior to and at the time of the collision, was operating a 1959 Ford Galaxie automobile westwardly on Sterling. Defendant was driving a 1962 Chevrolet south on Althea. Title to the Ford Galaxie was in the name of both plaintiffs. The streets were dry at the time. There was a row of trees on the east side of Althea. It does not appear how close to the intersection this row of trees was, the kind of trees they were, or their size. If appellant had lodged the exhibits with this court, we would be better informed as to the matters. However, these trees did not completely shut off the view to the east of one approaching Sterling, for defendant testified, “ * * * you could still see a little.” There were cars parked on the east side of Althea up to within a half car length of the intersection.

Mrs. Crockwell testified she had been traveling about 20 miles and hour, and as she approached the intersection, reduced the speed of her car to about 15 miles per hour. She then looked to the left and to the right, but did not see anyone approaching the intersection. She then started forward to enter the intersection, at which time she again looked to the right and saw defendant’s car approaching the intersection. Defendant’s car, at that time, was about three car lengths from the intersection traveling about 25 miles per hour. She saw defendant’s car over the tops of cars parked on Althea. She further testified that her car was about a car length from the intersection when she first saw defendant’s car, but later, in her testimony, estimated the distance at one and one-half car lengths. When she first saw defendant’s car she thereafter applied the brakes on her car as she was entering the intersection. The brakes took hold, but when the front of her car reached the center line of Althea, her car collided with defendant’s automobile. She stated that at the time of the impact, her car was almost at a complete stop.

Plaintiff further testified that she watched defendant’s car from the time she first saw it until the collision; that after she first observed defendant’s car, it “slowed up a little and then it started to go on into the intersection;” that it was in both traffic lanes of Althea and came toward her at an angle; that the force of the collision pushed her car a distance of about three feet; that defendant’s car hit her car, pushed it, and then hit it again; that when the cars came to rest they were side by side facing southwest, west of the center line of Althea and “on the wrong side of Sterling;” that the front of her car came to rest west of the center of Althea; and that there was glass in the street after the impact on the west side of Althea and on the north side of Sterling.

The transcript shows the following testimony by Mrs. Crockwell: “Q. At the last split second before the moment of impact how much space was there between the front of your car and the west side of Althea? A. Almost a whole lane. The Court: Lane of what? A. Road. * * * Q. * * * In terms of the width of a car, how wide would that lane be ? A. It would be one car width wide.”

After the collision, plaintiff observed skid marks running in a southwardly direction along the west lane of Althea about four feet in length. These stopped about two feet from the point of impact. There were skid marks running in a westwardly direction on Sterling. These were about six feet long and extended up to the point of impact.

On cross-examination, plaintiff testified that in estimating a car length, “I was using my car, I guess, in estimating that. * * * I guess it’s maybe eight foot or ten foot long.” Plaintiff was then read a part of testimony she had given in a deposition wherein she testified that she guessed she saw the top of defendant’s car when it was 20 or 25 feet from the intersection, and asked if that was correct. Her answer was, “Yes, I would say so.”

Defendant testified that he approached the intersection at approximately 15 or 20 miles per hour; that he looked left into Sterling when he was about to enter the intersection, but saw nothing; that he could see seven or eight feet into Sterling at the time; that after looking to the left he looked to the right and entered the intersection at a speed of about 15 miles per hour; that he got a slight glimpse of the Crockwell car just before the collision; that he then applied the brakes on his car; that his speed at the moment of impact was no more than fifteen miles per hour; that just before the collision when he got a glimpse of the Crockwell car, he “sort of swung to the right;” that as he entered the intersection, he was traveling “mostly to the right side,” and at the time of the impact was more on the right side; that very little of his car was over the center of Althea; that his left front fender was pushed in over the left front tire; that from what he could see it was the right fender of the Crockwell car that was involved.

On cross-examination, he testified that when he first looked to the left he was about 10 feet from the intersection; that there was nothing to obstruct his view east on Sterling at the time; that when he was 10 feet from the intersection, he imagined he could see 7 or 8 feet east on Sterling. Defendant gave the following testimony: “Q. Would there be enough room between the center line of Althea- — the imaginary center line — and the west side of Althea for your car, the car you were driving at the time, to have passed? A. Yes, sir, you could.”

Defendant contends that the Court erred in failing and refusing to sustain his motion to set aside the verdict and judgment and enter judgment for defendant in accordance with his motion for a directed verdict. In support of this assignment, it is urged that under the evidence presented, a jury could not reasonably find when plaintiff, Josephine Crockwell, entered the zone of imminent peril without resort to speculation and conjecture, and that the evidence conclusively shows that defendant could not slacken and swerve his automobile after she entered the zone of peril.

The fundamental principles which govern the application of my humanitarian doctrine have been stated many times, and are not in dispute in the instant case. The first and basic fact for its imposition is the position of imminent peril. It must be certain, immediate and impending; and a mere likelihood or bare possibility that a collision will occur is not sufficient to show its existence. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575. Other necessary elements are, notice to defendant, either actual or constructive of plaintiffs’ peril, and defendant’s ability thereafter to avert the collision with the means at hand without injury to himself and others. Whether these elements are present in a particular case is a jury question where there is evidentiary basis in support of each element from which a jury could reasonably find their existence. In determining whether such a case was made, the evidence must be viewed in the light most favorable to plaintiff.

Also important here is the rule that a plaintiff is not conclusively bound by his or her own estimates of distances or speed. Meier v. Moreland, Mo., 406 S.W.2d 97; Carlson v. St. Louis Public Service Co., Mo., 358 S.W.2d 795.

The zone of peril in this case, and the duty of defendant to take effective action under the humanitarian doctrine submitted could only arise when he saw or by the exercise of the highest degree of care should have seen and realized that Mrs. Crockwell, who was approaching the path of his car, was so close to it that she could not stop before reaching it.

Mrs. Crockwell testified that she first saw defendant’s car when her automobile was about one car length or one car length and a half from the intersection. She estimated a car length at 8 or 10 feet, so that we will take it that her estimate of the distance was 12 or 15 feet east of the intersection at the time. She was traveling about 15 miles per hour. When she first saw defendant’s car, it was three car lengths north of the intersection, or 24 to 30 feet. Defendant testified that he approached the intersection at a speed of 15 to 20 miles per hour and entered the intersection at 15 miles per hour. He testified that when he got to within 10 feet of the intersection, he looked to his left and could see only 7 or 8 feet into Sterling but saw nothing at the time. However, the jury could have rejected this testimony for according to his own testimony, there was nothing to obstruct his view except a row of trees which did not completely shut off his view, he having testified he could still “see a little;” and since Mrs. Crockwell could see defendant when he was thirty feet from the intersection, a jury could reasonably find that defendant, when at that distance, could have observed plaintiff who was then, according to her testimony 12 to 15 feet east of the intersection. Plaintiff immediately applied the brakes on her car when she first observed defendant and thereafter came to almost a stop when the front of her car reached the center of Althea. Defendant, according to his testimony, looked toward the east when he was 10 feet from the intersection and, failing to see what he could have seen, continued across the intersection at 15 miles an hour without once again looking to his left. Mrs. Crockwell, at the time he said he looked to the left, was within the intersection and was attempting to reduce the speed of her car. Defendant never saw Mrs. Crockwell’s car until an instant before the collision when it was too late for him to take any effective action to avoid the collision He admitted that there was enough room between the center line of Althea and the west side of Althea for his car to have passed in front of the Crock-well car.

Taking the evidence in the light most favorable to plaintiffs, defendant was thirty feet from the intersection when he could have seen plaintiffs’ car about to enter the intersection. A jury could, without speculation or conjecture, reasonably find that Mrs. Crockwell was then in a position of peril, which fact defendant should have realized had he been in the exercise of the highest degree of care. He was then 34 or 35 feet from the point of impact. Traveling at 15 miles per hour, he would cover about 22 feet per second. Allowing three-fourths of a second reaction time, he still had 19 or 20 feet left for the brakes to respond to the pressure on the brake pedal and the wheels to respond to a turn of the steering wheel, which movements would have avoided a collision between the two cars. A jury could reasonably find there was no other traffic to prevent a swerve to the right into Sterling, or for defendant to remain on Althea, swerve to the right, and pass in front of the Crockwell car. In our judgment, plaintiff made a case for the jury, and that a verdict could be returned in plaintiffs’ favor without resort to speculation and conjecture.

At the trial, Mrs. Crockwell identified four photographs which were introduced into evidence as plaintiffs’ Exhibits A, C, E and F. She testified that Exhibit A was a photograph of Althea showing a view to the south, the direction defendant’s car was traveling; that Exhibit C was also a photograph of Althea showing a view southward; that Exhibit E was a photograph of Sterling showing a view west-wardly along said street; and that Exhibit F was a photograph of Althea showing a view toward the South. These photographs were then offered in evidence, at which time defendant’s counsel stated he had no objection to the offer. These exhibits were given to the jury when they were sent to the jury room to deliberate on their verdict. Apparently, this was with the consent of counsel, for the record shows no objection by either party to it.

Thereafter, the following occurred:

“The Court: Let the record show that at approximately 4:55 P.M. the buzzer in the jury room sounded; the bailiff went to the jury room door, and a member of the jury handed him four photographs, Plaintiffs’ Exhibits A, C, E and F, together with a note as follows: ‘Please identify directional views and streets on the photographs.’ ”

The record further shows that the judge inquired of defendant’s counsel if he had any objection to the Court’s complying with the jury’s request contained in said note. Defendant’s counsel replied that he did, and then stated his objections in quite some detail, some of which have been preserved and are now urged as grounds for reversal of the judgment. The Court overruled the objection and sent to the jury room the following note:

“In response to the jury’s request for an identification of the directional views and streets on the four photographs handed to the bailiff, Mrs. Josephine Crockwell testified, according to the Court’s record, that Plaintiffs’ Exhibits A, C and F were views of Althea Street looking to the south, and that Plaintiffs’ Exhibit E was a view of Sterling Street looking to the east.”

Defendant’s counsel then made further objection to the Court’s action, and moved for a mistrial, which motion was by the court overruled.

On this appeal, defendant contends that the court’s action in complying with the jury’s request was reversible error. In support of this assignment, it is urged that its effect was to enable plaintiffs to reopen the case, and clarify their case as to an essential ingredient thereof, to wit, the geography of the scene of the accident, and was a comment on the weight of the evidence and the credibility of Mrs. Crock-well’s testimony which was clearly an invasion of the province of the jury.

Assuming, without deciding, that the court erred in its action, we are convinced that such error, if any, did not materially affect the merits of the action. Such being the case, we may not reverse the judgment. See Civil Rule 83.13(b), V.A.M.R.

The judgment is affirmed.

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


text:
    James O. BUNYARD and Opal Bunyard, His Wife, Plaintiffs-Respondents, v. J. M. TURLEY and Lucy Turley, His Wife, and Laura Robinson and E. T. Robinson, Her Husband, Defendants-Appellants.
    No. 32144.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Earl R. Blackwell, Hillsboro, for appellants.
    H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for respondents.
   CLEMENS, Commissioner.

Plaintiffs James O. Bunyard and Opal Bunyard won their equity suit to declare an easement over a strip of land and to enjoin its obstruction. This appeal followed.

Plaintiffs Bunyard and defendants Tur-ley own and occupy adjoining tracts of land in rural Jefferson County. A private roadway of sorts straddles their common boundary. In 1960 defendant J. M. Turley strung a fence along the boundary line, running down the center of the roadway. The strip of land in dispute is the part of the roadway lying on defendants’ side of the boundary.

The Bunyards contended they had acquired an easement by prescription over the Turley side of the roadway, and that the fence prevented its use. Their petition was in three counts: First, for a decree declaring an easement over defendants’ land on the strength of statutory limitation; second, for a decree compelling the defendants to take down the fence and enjoining further obstruction of the easement; third, for $1,000 damages. The defendants denied every allegation. The trial court found for plaintiffs on Counts I and II.

Defendants-appellants say we have appellate jurisdiction because only an easement is at stake and title to real estate is not involved. Despite this concession, we must determine our jurisdiction. Smith v. McNew, Mo.App., 381 S.W.2d 369[1], If title to real estate is involved, exclusive jurisdiction is in the Supreme Court, to whom we must transfer the case. Article V, §§ 3, and 11, Mo.Const., V.A.M.S.

An easement is a property interest in land carved out of an owner’s fee simple title (Pendleton v. Gundaker, Mo.App., 370 S.W.2d 720 [3], and Dalton v. Johnson, Mo.App., 319 S.W.2d 66[1]). But not all cases concerning easements involve title to real estate in the constitutional sense. Excluded from the constitutional term are cases where the issue is the right to use an admitted easement (Fischer v. Johnson, 139 Mo. 433, 41 S.W. 203), and those concerning the location of an easement (Allen v. Smith, Mo.App., 375 S.W.2d 874[4]). Also excluded are cases where the issue is limited to injunctive relief; this, because the judgment operates only in personam and title is a subject of merely collateral inquiry. (Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721 [3,4].) And this is true even though “it was necessary for the trial court to inquire into the validity of plaintiff’s claim of an easement over defendants’ land in order to determine whether to grant or withhold the [injunctive] relief prayed * * (Oliver v. Wilhite, 329 Mo. 524, 45 S.W.2d 1083[2].)

But there is a distinction between cases where title to real estate is incidentally in issue and other cases where the judgment directly gives or denies “some part, interest or moiety in the title to real estate”. Dalton v. Johnson, Mo.App., 319 S.W.2d 66[2], and Mo., 320 S.W.2d 569[1]. That is the jurisdictional issue before us.

When relief is granted, appellate jurisdiction is determined by the terms of judgment appealed from. Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771[11], (banc). We quote from the judgment here, emphasizing the parts relative to the question of title:

“ * * * the Court * * * finds that the plaintiffs have a right of easement in * * * [describing a ten-foot strip over defendants’ land],
“That the right to the easement on said real estate has vested in the plaintiffs by limitation.
“WHEREFORE, it is adjudged and decreed by the Court that the plaintiffs be and are hereby vested with a right of easement in and to the above described real estate to pass and re-pass over and upon said land * * * at will and without the permission of the defendants and that the defendants and all persons claiming by or under them be perpetually enjoined * *

When a judgment finally adjudicates the disptited existence of an easement over the lands of a litigant, title to real estate is involved in the constitutional sense. This is true when the easement is judicially established (Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894[1]; Mueller v. Larison, Mo.App., 347 S.W.2d 446[1], and Mo., 355 S.W.2d 5[1]); and it is also true when establishment of the asserted easement is judicially refused (Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501[1]; Pendleton v. Gundaker, Mo.App., 370 S.W.2d 720[3], and Mo., 381 S.W.2d 849).

Here, existence of an easement was disputed. The court decreed that plaintiffs were vested with an easement over the defendants’ real estate. Here, just as in Mueller v. Larison, Mo.App., 347 S.W.2d 446[2,3], “the judgment operates directly against defendants’ real estate and affects their record title, since it divests them of an interest in their property and, in formal terms, decrees in plaintiffs a quantum of ownership.”

This case involves title to real estate and must be transferred to the Supreme Court.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, it is ordered that the case be transferred to the Supreme Court.

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


author: CULLEN, Commissioner.

text:
    Susie AKERS (a. k. a. Susie Stamper), Appellant, v. Berly STAMPER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rehearing Denied Feb. 17, 1967.
    James S. Carroll and Julian W. Knip-penberg, Lexington, for appellant.
    Strother Kiser, Bert T. Combs and Julius Rather, Lexington, for appellee.
   CULLEN, Commissioner.

Appellant Susie Akers (Stamper) and appellee Berly Stamper went through a marriage ceremony in 1942, and thereafter lived as man and wife until 1962, when they fell out and became involved in divorce litigation in which it was adjudged that they never had been married validly /because Berly had not obtained a divorce from his first wife. During the twenty years of togetherness a substantial amount of property was accumulated, all of which was put in Susie’s name. The main property was a motel near Lexington, which after its purchase in 1945 was operated by Susie and Berly and which prospered, producing substantial profits which were used to improve and expand the motel and to acquire other property. The instant lawsuit was brought by Berly against Susie, asking that he be declared a half-owner of some of the property and full owner of the rest of it. In substance the judgment awarded him a half interest in all of the property. Susie appeals, claiming that Berly should not have been adjudged to have any ownership interest.

On the merits of the case, Susie’s main contention is that it was her money that was used to buy the motel in 1945; that she shared profits with Berly as she chose; and he had no interest in the motel itself or in any property bought from what she claimed were pre-sharing profits over which she had complete right. Contradicting this contention there was evidence that when Susie and Berly first met and became intimate, Berly was the only one who had any money; that they went into a partnership or joint venture arrangement before they were married; that this joint operation produced the profits from which the motel was purchased; that the motel was on an equal-ownership, equal-sharing basis from the outset; and that title to the various properties was put in Susie’s name with the clear understanding that Berly was a half-owner. In our opinion the trial court was entitled to believe the latter evidence, and this belief warranted the judgment that was entered. One persuasive fact is that until Susie met up with Berly she was practically penniless; prosperity came only when she and Berly joined forces. This fact tends strongly to support Berly’s assertion that the profits were from joint efforts from the beginning, as against Susie’s claim that somehow she alone amassed enough money to buy the motel.

Susie argues that Berly should be chargeable with fraud such as would bar any recovery by him, in that (she alleges) he knew all along, or at least for several years, that their marriage was not valid. She says that if she had known the marriage was invalid she would not have permitted Berly to share in the profits of “her” motel. This argument collapses once it is held that the motel never was “her” motel in the first place. Furthermore, the facts attending the early relationships of the couple indicate that strict legality of the marriage was not a matter of great concern to either of them.

Another argument is that Berly should be estopped, or barred under the doctrine of judicial admission, from claiming half of the property, because in his initial pleadings in this action, and in his pleadings in the divorce action, he claimed to be the sole owner. If this novel proposition were to be adopted, a plaintiff in a negligence suit who alleged that he was damaged in the amount of $100,000 would be estopped from claiming or recovering any lesser amount. We think the proposition is without merit.

Initially, the parties to this lawsuit agreed that the issue of whether Susie and Berly were engaged in a joint enterprise, joint venture or partnership should be tried by a jury. The trial was commenced before a jury but after a full morning of hearing testimony the judge became convinced that the issues as they were developing would involve such a complication of accounts and great detail of facts as to make it impracticable for a jury intelligently to try the case. Accordingly the judge discharged the jury and referred the case to the master commissioner. Our examination of the record convinces us that this was proper under CR 39.01. See McGuire v. Hammond, Ky., 405 S.W.2d 191.

The appellant’s reply brief, by way of summarizing appellant’s case, closes with the statement, “ * * * the appellant’s testimony and the testimony introduced by her is reasonable and believable, but not so that of the appellee.” The simple answer is that the appellee’s testimony is reasonable and believable.

The judgment is affirmed.


author: CHARLES M. ALLEN, Special Commissioner.

text:
    Peggy S. RILEY et al., Appellants, v. Edwin L. BURGESS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    M. C. Redwine, Jr., Winchester, for appellants.
    Marshall McCann, Jr., Winchester, for appellee.
   CHARLES M. ALLEN, Special Commissioner.

This is an appeal from a summary judg-ent for the appellee granted by the Clark Circuit Court in a damage action filed by the appellants. The only question involved is the correctness of the summary judgment.

On December 15, 1963, at 6:22 a. m. an automobile driven by the appellant Mrs. Riley struck the rear left wheels of the parked truck of the appellee in Winchester on North Main Street. The truck was parked next to the curb on the west side of North Main Street as is permitted by the city. It was parked at an angle less than 45 degrees and in such a manner that the right rear wheels of the truck were some 5 to 7 feet from the curbing.

North Main Street is 40 feet wide and there was no moving traffic on it at the time of the accident. The street was wide enough to accommodate parked cars on both sides and two lanes of traffic. Mrs. Riley did not see the truck until she was a car’s length or two away, and when she applied her brakes, her right fender hit only the wheels of the left side of the truck. The skid marks left by her car’s right wheels were about 10 feet from the curb. There was no rain or snow at the time of the accident but it was still dark. There were no cars parked on the east side of Main Street and none on the west side of Main Street to the rear of the truck. The accident occurred on Sunday morning and there were no witnesses to the accident other than Mrs. Riley and her mother Mrs. Blackwell, who was a passenger in Mrs. Riley’s car, although there were two witnesses who according to counsel for appellants saw and photographed the position of Mrs. Riley’s automobile and of appellee’s truck following the accident.

In Hines v. Westerfield, Ky., 254 S.W.2d 728, the circuit court jury returned a verdict of $950 in favor of appellee for damages to his truck resulting from an accident which occurred in the town of Whitesville on the Owensboro Road. There Mrs. Hines parked her husband’s automobile in such a manner that it extended into the traveled portion of the street for a distance estimated at from 18 inches to 3 feet. The car remained parked for two days by which time an additional 18 inches obstruction in the street had been caused by snow which had been banked against the side of the car by a snow plow. The appellee driving his truck during the afternoon when about 100 feet from the parked car observed an automobile approaching him from the opposite direction. This automobile pulled to its left directly into the path of appellee’s truck and parallel with the appellants’ parked car. Appellee then drove his truck into a ditch to avoid a collision. The Court of Appeals held that since the street was 21 feet wide, even though the parked car extended out for 3 feet and there was snow for a distance of 1½ feet, there was still a width of 16½ to 17 feet on which vehicles could safely pass. It, therefore, held that the act of appellant in parking her car on the street was not a proximate cause of the accident and that the act of the third driver was a superseding cause which brought about the accident.

In Duff v. Lykins, Ky., 306 S.W.2d 252, it was held that a verdict should have been directed for the defendant in an action where he left his automobile parked on North Main Street in Hazard without leaving his lights on and plaintiff drove her automobile into the parked car. The street in question was 28 feet wide and was illuminated by street lights approximately 150 feet on each side of the point of collision.

Proximate cause is defined as a cause which would probably, according to the experience of mankind, lead to the event which happened and remote cause is a cause which would not, according to such experience, lead to such event. It is superfluous to say there can be no recovery on account of negligence of another which was not the proximate cause of the injury complained of. See Suter’s Administrator v. Kentucky Power and Light Company, 256 Ky. 356 at page 362, 76 S.W.2d 29 at page 32.

In the instant case there was no obstruction to Mrs. Riley’s view of the truck and no glare from the lights of approaching vehicles. It is obvious that she was not keeping a proper lookout. Even though the truck was parked improperly, had Mrs. Riley been keeping a lookout she would have had 30 feet of street on her left side to use to avoid striking the truck. She had been going in a straight direction for some 500 feet and hence there is involved here no question of her coming suddenly upon an improperly parked truck. It seems apparent that the negligence of the owner of the truck in parking the truck at an angle to the curb was not the proximate cause of the injury but that the proximate cause was Mrs. Riley’s negligence in driving her car without keeping a proper lookout. We believe that the trial court was correct in entering the summary judgment for the appellee and that it should be affirmed.

The judgment is affirmed.


author: HILL, Judge.

text:
    GOODWIN BROTHERS, Appellant, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    Calvert T. Roszell, H. Foster Pettit, McDonald, Alford & Roszell, Lexington, for appellant.
    Charles Landrum, Jr., Denney, Landrum, White & Patterson, Lexington, for appel-lee.
   HILL, Judge.

This appeal concerns the validity of a default judgment entered in the Knott Circuit Court against appellant, a Kentucky corporation, with its principal office and place of business in Fayette County, pursuant to a demand by appellee in its third-party complaint in an action by one Joyce Ann Kelly against appellee to recover collision insurance benefits under a policy of insurance issued to her by appellee, Preferred Risk Mutual Insurance Company.

The insured automobile of Miss Kelly ran off the highway and was wrecked in Owsley County, Kentucky. She entered into a contract in Fayette County with appellant Goodwin Brothers, a Kentucky corporation, to repair her automobile. Being dissatisfied with progress in the settlement of her claim against appellee and in getting her automobile repaired, she filed suit in Knott Circuit Court, the county in which the policy was issued, against appellee only in which she sought recovery of $3,643.15, the claimed full value of her automobile before the wreck.

The appellee insurance company in its answer admitted liability of $1,397 but alleged any sum over that amount was the liability of Goodwin Brothers on the theory of improper repairs. This defense was based upon the insurance company’s estimate of damage to the automobile due to the collision.

The appellee insurance company also filed in Knott Circuit Court a third-party complaint against Goodwin Brothers in which it sought to recover from Goodwin Brothers “all sums in excess of $1,397,” which was the estimate given by Goodwin Brothers and the sum actually paid Goodwin Brothers by appellee. Summons was issued on the third-party complaint by the Knott Circuit Court Clerk and delivered to the Sheriff of Fayette County, who served same on Goodwin Brothers.

Goodwin Brothers had its office and place of business and its chief officer or agent in Fayette County, Kentucky.

Goodwin Brothers ignored the summons and made no defense to the third-party complaint filed in the Knott Circuit Court. Judgment was entered by the Knott Circuit Court against the insurance company for $3,593.15 and against Goodwin Brothers in favor of the insurance company for $2,146.-15.

The present action, from which this appeal arose, was filed in Fayette Circuit Court by Goodwin Brothers against appel-lee seeking to enjoin the collection of the Knott Circuit Court judgment.

The resolution of the question of the validity of the Knott Circuit Court judgment requires consideration of KRS 452.450, 452.485, and CR 14.01 and CR 82.

It is provided by KRS 452.450 that actions on contract, as in the Knott County case, must be brought against a corporation in the county in which its office or place of business or its chief officer or agent resides or in the county in which the contract was made or to be performed.

Authority for bringing in a third party under CR 14.01 may be granted by the court where such third party “may be liable to him (defendant) for all or part of the plaintiff’s claim * *

It is argued by appellant that KRS 452.450 (providing for the county in which actions against corporations may be brought) must be complied with before a third-party defendant may be joined. It also contends that the subject matter of the third-party complaint was unrelated to and did not grow out of the subject matter of the original complaint.

CR 14.01 does not require that the cause of action set up in the third-party complaint be related to or grow out of the cause of action alleged in the original complaint, but this is implied. The rule provides that a claim may be asserted if such third party “may be liable to him” (defendant) “for all or part of” (the plaintiff’s) “claim against him” (defendant).

In the Knott County case, there were allegations that Goodwin Brothers was liable to the insurance company, and we assume the policy gave the insurance company the usual option of repairing the damaged vehicle or replacing it. So, the undertaking by Goodwin Brothers to repair the wrecked vehicle was really for the benefit of and indeed paid for by the insurance company. Hence the contract to repair was so related to the insurance contract sued on, it may be fairly said it grew out of the insurance contract, the subject of the original action.

Appellant’s reasoning that CR 14.01 may not be invoked unless the requirements of KRS 452.450 are met presents a new and troublesome question in this jurisdiction.

It is argued by appellant, with some logic and persuasion, that CR 82, providing that “These rules shall not be construed to extend or limit the jurisdiction of any court of this Commonwealth or the venue of actions therein,” qualified the right under CR 14.01 by requiring compliance with KRS 452.450. And, in this position, appellant has support in other jurisdictions, including some United States District Courts, for there is division of authority in this area. But the weight of authority supports impleader over an objection based upon lack of proper venue. Miller v. Hano, 8 F.R.D. 67 (D.C.E.D.Pa.1947) ; Moncrief v. Pennsylvania R. Co. (Erie R. Co. v. Joiner), 73 F.Supp. 815 (E.D.Pa.1947); and Lesnik v. Public Industrials Corporation, 144 F.2d 968 (2nd Cir. 1944).

We quote a comment by Cecil D. Walden from Kentucky Law Journal, Vol. XL, No. 1, p. 95 (1951):

“It appears that if third party impleader is ‘ancillary’ for jurisdictional purposes then it should also be so for purposes of venue and at least one judge has expressed opinion to that effect. (Judge McClintic in Crum v. Appalachian Electric Power Co., 27 F.Supp. 138.) * * * Although the third party may often be inconvenienced, yet this fact appears to be outweighed by the advantages to be gained in allowing impleader over an objection based upon lack of proper venue, and such is the weight of authority.”

In Clay’s Kentucky Practice, Vol. 6, CR 14.01, Comment 8, p. 251, it is stated:

“Perhaps the better rule is that the proper venue of the original action should control this branch of the proceeding, particularly since the original action may likely be the one which will fix the ultimate liability of the third-party defendant.”

Mindful of the congestion of court dockets and the desirability of minimizing the multiplicity of suits, we conclude that under CR 14.01 a third party may be joined “who is or may be liable to” a defendant “for all or part of” the plaintiff’s “claim against” the defendant, regardless of whether the provisions of KRS 452.450 are met as to the third party. The interpretation thus placed upon CR 14.01 is analogous to that placed upon KRS 452.480, providing for the filing of transitory actions against a number of defendants if any one may be properly joined.

It is appropriate that we discuss Cash v. E’Town Furniture Co., Ky., 363 S.W.2d 102 (1962), cited and relied on heavily by appellant. In Cash, CR 12 was involved, not CR 14.01. There was no third-party complaint in the Cash case. Also the action was a transitory one filed in Hardin County against a resident of Jefferson County. In the present case, the Knott Circuit Court had jurisdiction of the original parties and of the subject matter. This was not so in Cash. We do not think the Cash case furnishes any authority for limiting the application of CR 14.01.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Rudy SCOTT and S. & S. Construction Company, Inc., Appellants, v. FARMERS STATE BANK and George Hollis, Appellees and Cross-Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    Rehearing Denied Feb. 17, 1967.

      King, Deep & Branaman, Henderson, for appellants.
    James Holloran, Sturgis, for Farmers State Bank.
    J. D. Ruark, Morganfield, for George Hollis.
   DAVIS, Commissioner.

Farmers State Bank (hereinafter Bank) and George Hollis (hereinafter Hollis) recovered judgments against Rudy Scott and S. & S. Construction Company, Inc., (both of whom shall be referred to as Scott), based on claimed fraudulent misrepresentations to them by Scott. The judgment in favor of the Bank was in the sum of $5,074.55; the amount awarded Hollis was $18,201.17. Scott seeks reversal of those judgments; the Bank and Hollis have filed cross-appeals asserting their entitlement to greater sums than awarded by the trial judge, who rendered the judgments after hearing the case without the intervention of a jury.

Before stating the specific questions presented on appeal, which are somewhat different as to the Bank and Hollis, we shall outline the factual background.

Incident to completion of Barkley Lake the U. S. Corps of Engineers sought bids for clearing the lands to be inundated. Scott was the successful bidder on Units 7, 8, 9 and 10 of Group 2 of the clearings at a total bid price of $1,172,695. Although these units were awarded to Scott in one contract, there was separate bidding as to each unit; the unit involved in this litigation is Unit 8, on which Scott’s successful bid was $227,065.

Scott sublet the work on Unit 8 to Hollis by written contract wherein Hollis undertook to perform the necessary clearing for $98,000. Hollis began work under his subcontract but did not complete it. The various facets of the appeal before us had their genesis in Hollis’ failure to complete the contract.

Hollis first learned that clearing work was available when an acquaintance of his telephoned to inform him that Scott was looking for bulldozer operators. Hollis communicated with Scott and they arranged to meet on February 2, 1963. On that date they viewed at least a portion of the area included in Unit 8, and Hollis saw an aerial photograph of the project. There are contrarieties in evidence, later to be discussed, as to certain other matters which may have occurred on that day. At any rate, Scott and Hollis entered into the subcontract on February 7, 1963, in which Hollis undertook to do the necessary clearing on Unit 8 for $98,000.

Hollis needed financial backing to begin work. He consulted officers of the Bank, and related in general terms what he had in mind; they requested him to have Scott meet with them in order that they might better understand the situation. On February 11, 1963, Scott and Hollis met with the Bank’s executive vice-president, Frank L. Steelman, Jr. The purpose of the meeting, as stated by Mr. Steelman, was to enable the Bank’s officers to determine whether Hollis could make money on the contract, thus assuring that the Bank’s loan to him would be a sound one.

On that occasion, according to Mr. Steel-man (and denied by Scott), in direct answer to what Hollis could expect to make on the contract, Scott answered “$20,000.” In addition to that, Steelman related, Scott stated that Hollis should realize another $20,000 from the saleable timber to be cleared from the tract. Steelman testified that Scott told him that the total acreage to be cleared was 706 acres. Scott agreed that periodic payments accruing to Hollis would be made payable to Hollis and the Bank, jointly. It is not disputed that such payments as were made to Hollis by Scott were made in compliance with that agreement.

The Bank advanced Hollis $5,000 on February 11, 1963; $3,000 on February 25, 1963; $2,000 on March 28, 1963, and $1,000 on April 20, 1963, all of which advancements were evidenced by separate promissory notes. The Bank’s officials desired some reassurance about these loans; on May 4, 1963, Scott complied with the Bank’s request for an interview about the status of affairs, and, according to evidence for the Bank (disputed by Scott) assured the Bank’s officers that Hollis’ work was progressing satisfactorily and that Hollis had between $12,000 and $14,000 due him, which would be forthcoming shortly. On the strength of this renewed assurance the Bank advanced $4,000 to Hollis in two separate loans, and suffered Hollis to overdraw his checking account in the sum of $1,074.55.

The trial judge ruled that the Bank could not recover of Scott any portion of the first $11,000 it had advanced to Hollis. The basis for the lower court’s ruling was that the alleged statements by Scott that Hollis would make $20,000 on the contract plus $20,000 on the timber were mere prophecies of future events. Even though the trial judge found as fact that Scott did represent to the Bank that the acreage involved was only 706 acres, he correctly pointed out that the Bank’s officers specifically disclaimed reliance upon the acreage in making the initial advances of $11,000. It is our view that the trial court correctly adjudged the controversy as between the Bank and Scott as to the first $11,000 advanced. That the statements of Scott were mere expressions of opinions as to future events seems clear; such statements are not actionable. Church v. Eastham, Ky., 331 S.W.2d 718.

A different situation prevails with respect to the funds advanced by the Bank in reliance upon what it claims were Scott’s statements on May 4th. These statements, if made, were not opinions nor were they statements of future events or prophecies. They purported to be statements of present, material facts, and the Bank clearly showed that it explained to Scott that it would rely on the statements— and did so rely. The essential elements of actionable fraud are material representation, falsity, scienter, or recklessness, intention, reliance, deception, and injury. Collins-Moore & Co. v. Clement, 256 Ky. 731, 77 S.W.2d 1; Curd v. Bethell, 248 Ky. 127, 58 S.W.2d 261; 9A Ky. Digest, Fraud, As respects Scott’s representations to the Bank on May 4 relating to the quality of Hollis’ work and the amount of money he had coming, the trial court was abundantly warranted in his holding that all of the stated elements of fraud were present.

Before embarking upon a separate discussion of the Hollis-phase of the appeal, we come to the first points presented by appellants which are applicable to the Bank’s appeal as well as Hollis’ appeal.

It is contended that there was no venue in the Union Circuit Court since neither Scott nor S. & S. Construction Company has a venue-situs there. This litigation originated when the Bank sued Hollis (a resident of Union County) and joined with him Scott and S. & S. Construetion Company as co-defendants. Hollis brought a cross-claim against Scott and S. & S. Construction Company. The gist of appellants’ argument is that venue in an action for fraud lies in the county where the injury occurs, not where the fraudulent misrepresentations were made. Conceding that the general rule in tort actions fixes venue in the county where the injury occurred, with certain exceptions not necessary to note, we think the venue in this case lay in Union County. The alleged acts of misrepresentation as to the Bank all occurred in Union County. At least part of the alleged misrepresentations to Hollis occurred in Union County. Where did the injury occur? As to the Bank it seems clear that its injury occurred to it in Union County, and consisted of its loss of money at its own banking office in that county. The same is true of Hollis; he lived in Union County, and what he lost was there lost. It is true that the work on Unit 8 did not occur in Union County, but the financial injury to Hollis affected him at home, in Union County.

The second point addressed to each appellee is the charge that the opinion of the lower court was not a sufficient one to qualify it as a finding of fact and conclusion of law within the purview of CR 52.01. We have examined the opinion of the trial court and conclude that it does adequately meet the requirements of the rule. It would unduly lengthen this opinion to recite the opinion of the trial judge, but we can find no merit in appellants’ contention that the opinion is so deficient as to require remand of the entire case for a more specific finding of fact and conclusions of law. As will be discussed herein we do find that such a remand is necessary in part.

The third point advanced for reversal relates to claimed errors in rulings upon evidence admitted and refused. The chief point of contention in this area deals with the court’s refusal to permit Scott to testify as to what officials of the U. S. Corps of Engineers told him about Hollis’ inadequate work. Of course the proffered evidence was hearsay if its purpose was to prove the truth of what the officials said to Scott, but appellants contend that it had relevance to demonstrate that Scott acted in good faith in subletting his $227,065 contract to Hollis for only $98,000, and that Hollis lost on the contract because of his own ineptness. This reasons in a circle, since again the statements of the officials would have to be accepted as proof of Hollis’ failure to properly perform. An official of the U. S. Corps did testify and did state that Hollis was not properly equipped and organized to handle the work, so there was no prejudice anyway.

Another attack on the evidence relates to the Bank’s being allowed to show misrepresentation as to acreage when its complaint had not specified such misrepresentation ; the short answer to that is that no recovery in favor of the Bank was based on that asserted misrepresentation.

There are other complaints relating to the trial judge’s permitting Scott to be cross-examined as to what the Corps told him about the cost of the project while refusing to permit Scott to show what percentage of Hollis’ work the Corps would accept. These matters were presented in the record by evidence from an officer of the Corps; this was not a jury case; the trial judge was able to evaluate and weigh the evidence, and we are not able to discern any respect in which prejudicial error was committed by his admitting or refusing testimony.

The next point presented is that the Bank failed to prove a case. We have already stated that we think it did, but there remains the argument advanced by appellants that to allow the Bank to recover on the oral misrepresentations here is to violate the spirit of KRS 371.010(1), which provides that no action shall be brought to charge any person:

“For any representation or assurance concerning the character, conduct, credit, ability, trade or dealings of another, made with intent that such other may obtain thereby credit, money or goods; * * ” [unless the representation is made in writing].

In support of that position is cited Ramsey v. Reynierson, 200 Ky. 624, 255 S.W. 274. However, in Hill v. Halmhuber, 225 Ky. 394, 9 S.W.2d 55, at 57, it is said:

“In so far as the case of Ramsey v. Reynierson is in conflict with the views herein expressed, it is overruled.”

The Ramsey case conflicted with the Hill case on the very point at hand. See also 32 A.L.R.2d 750. Our statutes do not abrogate the common-law remedy for fraud merely because the fraudulent misrepresentations are by parol. So appellants may have no succor from Ramsey v. Reynierson.

Appellants say that no case was made for the Bank because it failed to plead fraud with particularity as required by CR 9.02. We have examined the complaint and conclude that it set out the alleged fraud with sufficient particularity. It is not necessary that the “particularity” commanded by CR 9.02 attain such detail as to recite each minute detail; it is enough to plead the time, the place, the substance of the false representations, the facts misrepresented, and the identification of what was obtained by the fraud. See Clay, CR 9.02, pp. 165-166 wherein is contained a statement from Union Mutual Life Ins. Co. v. Simon, D.C.Pa., 22 F.R.D. 186 as follows :

“Rule requiring that averments of fraud be made with particularity does not require textbook pleading of all elements of fraud but requires merely that plaintiff set forth facts with sufficient particularity to apprise defendant fairly of charges against him.”

As further noted in Clay CR 9.02 at p. 165, the rule requiring pleading of fraud and mistake with particularity is to be considered in light of the entire spirit of modern pleading which lays emphasis upon short, concise and direct pleading. United States v. Dittrich, D.C.Ky., 3 F.R.D. 475.

The appellants did not seek a more definite statement of the complaint as permitted to them by CR 12.05, nor is there any suggestion that appellants suffered surprise or prejudice when evidence was presented which had not been “spelled out” in detail in the complaint. In these circumstances the appellants may not complain.

Next the appellants contend that the Bank failed to prove any damages. This point is premised on the idea that the Bank did not prove that Hollis’ obligation to it was uncollectible from Hollis. The record is replete with evidence that Hollis had no assets subject to execution at the time of trial. The Bank obtained judgment against Hollis; execution upon it was returned nulla bona. We regard this as sufficient proof of the Bank’s damage in the present case.

The appellants challenge the judgment allowing recovery to Hollis on the following grounds: (1) Hollis did not prove a claim by clear and convincing proof; (2) Hollis’ claim is barred by laches, waiver or ratification; (3) Hollis proved no damages.

We shall not undertake a detailed statement of the disputed factual circumstances as they pertain to the claim of Hollis against the appellants. It suffices to say that there was sufficient evidence to induce the trial court to believe that Scott did knowingly make material, false representations to Hollis, and that Hollis relied upon them to his damage. The record supports the inference that Hollis was affirmatively deceived when Scott told him that the project was “set up” by the Corps of Engineers at $98,000, and even detailed in what manner that sum was allocated. The evidence supports the view that Scott deliberately misled Hollis as to the number of acres to be cleared and the method to be used in performing the work. It seems plain that Hollis lost substantially all he had in his efforts to pursue the contract.

The difficulty we have is that the trial judge recited in his opinion:

“Scott contends that Hollis’ failure to perform was because of his own lack of ability to perform, his lack of managerial capacity, lack of proper equipment and manpower. The Court has no doubt but that all of these qualities were lacking, but the undertaking was initiated by Scott’s misrepresentations and had it not been for these misrepresentations the parties would not be in this situation; therefore, he [Scott] is the one who must answer in damages.”

The trial court made no finding touching the extent to which Hollis’ inability may have been causative of Hollis’ damages or loss. It seems to us that even if Scott had been guilty of the grossest fraud he may not be made to respond for such loss, if any, as may have resulted— not from the fraud — but from Hollis’ own lack of knowhow. Since no finding in this regard has been made, we remand the case to the trial court for further consideration on this point, with directions to make a specific finding in conformity with the opinion. The trial court may, of course, permit further evidence if it is deemed requisite for an appropriate determination of the matter.

The judgment is affirmed as to the appeal against the Bank, and is affirmed as it relates to the Bank’s cross-appeal; the judgment is reversed on the original and cross-appeals as between Hollis and appellants, with directions that further proceedings be had in conformity with this opinion.


author: PER CURIAM.

text:
    M. I. HONEYCUTT, Petitioner, v. James T. DOSS et ux., Respondents.
    No. A-11755.
    Supreme Court of Texas.
    Dec. 31, 1966.
    Rehearing Denied Feb. 15, 1967.
    Harless, Bailey & Youngblood, Bruce Youngblood, Dallas, for petitioner.
    Luna & Vaughan, Kenneth Vaughan, Dallas, for respondents.
   PER CURIAM.

Our jurisdiction to consider the application for writ of error in this case is challenged by respondent on the ground that it was not timely filed.

The court of civil appeals rendered judgment and filed an opinion in the case on July 28, 1966. See 406 S.W.2d 504. On August 12th our petitioner, M. I. Honeycutt, filed his motion for rehearing which was overruled by the court of civil appeals on September 22d with a “memorandum opinion” reading as follows:

“On page 1 of the opinion ‘Honeycutt' is substituted for ‘Doss’ in the third line from the bottom. On page 3, paragraph 2, ‘Doss’ is substituted for ‘Honeycutt.’ Appellee’s motion for rehearing is overruled.”

On October 3d Honeycutt filed a second motion for rehearing which was overruled on October 6th without further writing. Application for writ of error was filed by Honeycutt in the court of civil appeals on November 7th.

Rule 468, Texas Rules of Civil Procedure, provides:

“The application shall be filed with the clerk of the Court of Civil Appeals within thirty days after the overruling of the motion for rehearing, or within thirty days after the overruling of a final motion for rehearing if filed under Rule 458, provided that when the thirtieth day falls on Saturday, Sunday or a legal holiday the petition may be filed on the next day following which is neither a Saturday, Sunday nor a legal holiday.”

Timely filing of an application is jurisdictional. Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948). If the time within which Honeycutt was required to file his application began to run when his first motion for rehearing was overruled on September 22d, the application was not timely filed. If, on the other hand, the time began to run when his second motion was overruled on November 7th, the application was filed in time. Whether the time began to run when the first motion was overruled or when the second motion was overruled is governed by the second paragraph of rule 458, Texas Rules of Civil Procedure, which reads:

“If the Court of Civil Appeals hands down an opinion in connection with the overruling of a motion for rehearing, a further motion for rehearing may, if the losing party deems same necessary, be filed within fifteen days after such opinion is handed down and the above regulations and those of Rules 460 and 468 shall apply to it as though it were the first motion; but a further motion for rehearing shall not be made as a matter of right in any other case.”

Respondent contends that the quoted provision does not authorize the filing of a further motion for rehearing as a matter of right when a court of civil appeals hands down an opinion in connection with an order overruling a motion for rehearing; that authority to file a further motion is authorized only when there is something in the opinion which will reasonably form a basis for a conclusion that one is necessary. The question presented by this argument has not heretofore been decided. We expressly left it open in Oil Field Haulers Ass’n v. Railroad Comm’n, Tex., 381 S.W.2d 183, 188 (1964).

To put the matter at rest, we hold that when a court of civil appeals hands down an opinion in connection with an order overruling a motion for rehearing, rule 458 authorizes a losing party to file a further motion for rehearing as a matter of right if he deems one necessary, whether or not there is any sound or reasonable basis for his conclusion. Accordingly we hold that we have jurisdiction to consider Honeycutt’s application for writ of error in this case although the memorandum opinion quoted above could in no possible way have formed a basis for a reasonable belief or conclusion by him that one was necessary.

Having taken jurisdiction, we refuse the application, no reversible error. Rule 483, Texas Rules of Civil Procedure.